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+{"id": "FCIX3BYOtD", "title": "", "text": "Central Inland Water Transport Corporation Limited and Another v Brojo Nath Ganguly and Another\nSupreme Court of India\n\n6 April 1986\nC.A. No. 4412 and 4413 of 1985\nThe Judgment was delivered by : D. P. Madon, J.\n1. These Appeals by Special Leave granted by this Court raise two questions of considerable importance to Government companies and their employees including their officers. These questions are:\n1) Whether a Government company as defined in s. 617 of the Companies Act, 1956, is \"the State\" within the meaning of Art. 12 of the Constitution?\n2) Whether an unconscionable term in a contract of employment is void u/s. 23 of the Indian Contract Act, 1872, as being opposed to public policy and, when such a term is contained in a contract of employment entered into with a Government company, is also void as infringing Art. 14 of the Constitution in case a Government company is \"the State\" under Art. 12 of the Constitution?\n2. Although the record of these Appeals is voluminous, the salient facts lie within a narrow compass. The First Appellant in both these Appeals, namely, the Central Inland Water Transport Corporation Limited (hereinafter referred to in short as \"the Corporation\"), was incorporated on February 22, 1967. The majority of the shares of the Corporation were at all times and still are held by the Union of India which is the Second Respondent in these Appeals, and the remaining shares were and are held by the State of West Bengal and the State of Assam. S. 617 of the Companies Act, 1959 (Act No.I of 1956), provides as follows :\n\"617. Definition of 'Government Company'.- For the purposes of this Act Government company means any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary of a Government company as thus defined.\"\n3. As all the shares of the Corporation are held by different Governments, namely, the Government of India and the Governments of West Bengal and Assam, the Corporation is not only a Government company as defined by the said s. 617 but is a company wholly owned by the Central Government and two State Governments.\nCl. III(A) of the Memorandum of Association of the Corporation lists the main objects of the Corporation and cl. III(B) of the Memorandum of Association lists the objects incidental or ancillary to the main objects. It is unnecessary to reproduce all these objects for according to the Petitions filed by the Corporation for obtaining Special Leave in these Appeals, it is currently engaged in carrying out the following activities, namely,\n(i) maintaining and running river service with ancillary function of maintenance and operation of river-site jetty and terminal;\n(ii) constructing vessels of various sizes and descriptions;\n(iii) repairing vessels of various sizes and descriptions; and\n(iv) undertaking general engineering activities.\n4. Art. 4 of the Articles of Association of the Corporation provides that the Corporation is a private company within the meaning of cl. (iii) of sub-s. (1) of s. 3 of the Companies Act and that no invitation is to be issued to the public to subscribe for any shares in, or debentures or debenture stock of, the Corporation. Art. 51 of the Articles of Association confers upon the President of India the power to issue from time to time such directions or instructions as he may consider necessary in regard to the affairs or the conduct of the business of the Corporation or of the Directors thereof. The said Article also confers upon the President the power to issue such directions or instructions to the Corporation as to the exercise and performance of its functions in matters involving national security or public interest. Under the said Article, the Directors of the Corporation are bound to comply with and give immediate effect to such directions and instructions. Under Article 51A, the President has the power to call for such returns, accounts and other information with respect to properties and activities of the Corporation as might be required from time to time. Under Article 40, subject to the provisions of the Companies Act and the directions and instructions issued from time to time by the President under Article 51, the business of the Corporation is to be managed by the Board of Directors. U/art. 14(a), subject to the provisions of s. 252 of the Companies Act, the President is to determine in writing from time to time the number of Directors of the Corporation which, however is not to be less than two or more than twelve and u/art. 14(b), at every annual general meeting of the Corporation, every Director appointed by the President is to retire but is eligible for re-appointment. U/art. 15(a), the President has the power at any time and from time to time to appoint any person as an Additional Director.\nUnder Article 16, the President has the power to remove any Director appointed by him from office at any time in his absolute discretion. Under Article 17, the vacancy in the office of a Director appointed by the President caused by retirement, removal, resignation, death or otherwise, is to be filled by the President by fresh appointment. Art. 18 provides that the Directors are not required to hold any share qualification. Under Article 37, the President may from time to time appoint one of the Directors to the office of the Chairman of the Board of Directors or to the office of the Managing Director or to both these offices for such time and at such remuneration as the President may think fit and the President may also from time to time remove the person or persons so appointed from service and appoint another or others in his or their place or places. Under Article 41, the Chairman of the Board has the power, on his own motion, and is bound, when requested by the Managing Director in writing, to reserve for the consideration of the President the matters relating to the working of the Corporation set out in the said Article. Art. 42 lists the matters in respect of which prior approval of the President is required to be obtained. Under Article 47, the auditor or auditors of the Corporation are to be appointed or re-appointed by the Central Government on the advice of the Comptroller and Auditor-General of India. The said Article also confers power upon the Comptroller and Auditor-General of India to direct the manner in which the accounts of the corporation are to be audited and to give the auditors instructions in regard to any matter relating to the performance of their function. Under the said Article, he has also the power to conduct a supplementary or test audit of the accounts of the Corporation by such person or persons as he may authorize in that behalf and for the purposes of such audit to require such information or additional information to be furnished to such person or persons on such matters by such person or persons as the Comptroller and Auditor-General may, by general or special order, direct.\n5. U/cl. (V) of the Memorandum of Association, the authorized share capital was rupees four crores. It was raised to rupees ten crores by a special resolution passed at the Annual General Meeting of the Corporation held on December 30, 1972, and further raised to rupees twenty crores by a special resolution passed at the Annual General Meeting held on November 5, 1979.\n6. The above facts and the provisions aforementioned of the Memorandum of Association and the Articles of Association clearly show that not only is the Corporation a Government company of which all the shares were and are owned by the Central Government and two State Governments but is a Government company which is under the complete control and management of the Central Government.\n7. A company called the \"Rivers Steam Navigation Company Limited\" was carrying on very much the same business including the maintenance and running of river service as the Corporation is doing. A Scheme of Arrangement was entered into between the said company and the Corporation. The Calcutta High Court by its order dated May 5, 1967, approved the said Scheme of Arrangement and order the closure of the said Company and further directed that upon payment to all the creditors of the said Company, the said Company would stand dissolved without winding up by an order to be obtained from the High Court and accordingly, upon payment to all the creditors, the said Company was ordered to be dissolved. The said Scheme of Arrangement provided that the assets and certain liabilities of the said Company would be taken over by the Corporation. The said Scheme of Arrangement as approved by the High Court also provided as follows :\n\"a) That the new Company shall take as many of the existing staff or labour as possible and as can be reasonably taken over by the said transferee Company subject to any valid objection to any individual employee or employees.\nb) That as to exactly how many can be employed it is left to the said transferee Company's bona fide discretion.\nc) That those employees who cannot be taken over shall be paid by the transferor Company all moneys due to them under the law and all legitimate and legal compensations payable to them either under Industrial Disputes Act or otherwise legally admissible and that such moneys shall be provided by the Government of India to the existing transferor Company who will pay these dues.\"\n8. The First Respondent in Civil Appeal No. 4412 of 1985, Brojo Nath Ganguly, was, at the date when the said Scheme of Arrangement became effective, working in the said Company and his services were taken over by the Corporation and he was appointed on September 8, 1967, as a Deputy Chief Accounts Officer. The First Respondent in Civil Appeal No. 4413 of 1985, Tarun Kanti Sengupta, was also working in the said Company and his services were also taken over by the Corporation and he was appointed on September 8, 1967, as Chief Engineer on the ship \"River Ganga\". It is unnecessary to refer at this stage to the terms and conditions of the letters of appointment issued to these two Respondents as they have been subsequently superseded by service rules framed by the Corporation except to state that under the said letters of appointment the age of superannuation was fifty-five years unless the Corporation agreed to retain them beyond this period. The said letters of appointment also provided that these Respondents would be subject to the service rules and regulations including the conduct rules. Service rules were framed by the Corporation for the first time in 1970 and were replaced by new rules in 1979.\n9. We are concerned in these Appeals with the \"Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules\" of 1979 framed by the Corporation. These rules will hereinafter be referred to in short as \"the said Rules\". The said Rules apply to all employees in the service of the Corporation in all units in West Bengal, Bihar, Assam or in other State or Union Territory except those employees who are covered by the Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, or those employees in respect of whom the Board of Directors has issued separate orders. Rule 9 of the said Rules deals with termination of employment for acts other than misdemeanour. The relevant provisions of the said Rule 9 relating to permanent employees are as follows :\n\"9. TERMINATION OF EMPLOYMENT FOR ACTS OTHER THAN MISDEMEANOUR. -\n(i) The employment of a permanent employee shall be subject to termination on three months' notice on either side. The notice shall be in writing on either side. The Company may pay the equivalent of three months' basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice.\n(ii) The services of a permanent employee can be terminated on the grounds of \"Services no longer 1 required in the interest of the Company\" without assigning any reason. A permanent employee whose services are terminated under this clause shall be paid 15 days' basic pay and dearness allowance for each completed year of continuous service in the Company as compensation. In addition he will be entitled to encashment of leave at his credit.\"\nUnder Rule 10, an employee is to retire on completion of the age of fifty-eight years though in exceptional cases and in the interest of the Corporation, an extension may be granted with the prior approval of the Chairman-cum-Managing Director and the Board of Directors. Rule 11 provides as follows :\n\"11. RESIGNATION. -\nEmployees who wish to leave the Company's services must give the Company the same notice as the Company is required to give them under Rule 9.\"\nRule 33 provides for suspension of an employee where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation or trial. Rule 34 provides for payment of subsistence allowance during the period of suspension. Rule 36 sets out the different penalties which can be imposed on an employee for his misconduct. These penalties are divided into minor and major penalties. Rule 37 is as follows :\n\"37. ACTS OF MISCONDUCT.-\nWithout prejudice to the general meaning of the term 'misconduct' the Company shall have the right to terminate the services of any employee at any time without any notice if the employee is found guilty of any insubordination, intemperance or other misconduct or of any breach of any rules pertaining to service or conduct or non- performance of his duties.\"\nRule 38 prescribes the procedure for imposing a major penalty and sets out in detail how a disciplinary inquiry is to be held. Rule 39 provides for action to be taken by the H disciplinary authority on the report made by the Inquiring Authority. Rule 40 prescribes the procedure to be followed for imposing minor penalties. Rule 43 provides for a special procedure to be followed in certain cases. This special procedure consists of dispensing with a disciplinary inquiry altogether. The said Rule 43 provides as follows :\n\"43. SPECIAL PROCEDURE IN CERTAIN CASES. -\nNotwithstanding anything contained in Rule 38, 39 or 40, the disciplinary authority may impose any of the penalties specified in Rule 36 in any of the following circumstances :\ni) The employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial; or\nii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner Provided in these Rules; or\niii) where the Board is satisfied that in the interest of the security of the Corporation Company, it is not expedient to hold any inquiry in the manner provided in these rules.\"\nRule 45 provides for an appeal against an order imposing penalty to the appropriate authority specified in the Schedule to the said Rules and Rule 45-A provides for a review.\n10. We are concerned in these Appeals with the validity of cl. (i) of Rule 9 only. So far as Ganguly, the First Respondent in Civil Appeal No. 4412 of 1985, is concerned, he was promoted to the post of Manager (Finance) in October 1980 and also acted as General Manager (Finance) from November 1981 to March 1982. On February 16, 1983, a confidential letter was sent to him by the General Manager (Finance), who is the Third Appellant in Civil Appeal No. 4412 of 1985, to reply within twenty- four hours to the allegation of negligence in the maintenance of Provident Fund Accounts. Ganguli made a representation as also gave a detailed reply to the said show cause notice. Thereafter by a letter dated February 26, 1983, signed by the Chairman-cum-Managing Director of the Corporation, a notice under cl. (i) of Rule 9 of the said Rules was given to Ganguli terminating his service with the Corporation with immediate effect. Along with the said letter a cheque for three months' basic pay and dearness allowance was enclosed.\n11. So far as Sengupta, the First Respondent in Civil Appeal No. 4413 of 1985, is concerned, he was promoted to the post of General Manager (River Services) with effect from January 1, 1980. His name was enrolled by the Bureau of Public Enterprises and he was called for an interview for the post of Chairman-cum-Director of the Corporation by the Public Enterprises Selection Board. According to Sengupta, he could not appear before the Selection Board as he received the letter calling him for the interview after the date fixed in D that behalf. According to Sengupta, the new Chairman-cum-Managing Director who was selected at the said interview bore a grudge against him for having competed against him for the said post and on February 1, 1983, he issued a charge-sheet against Sengupta intimating to him that a disciplinary inquiry was proposed to be held against him under the said Rules and calling upon him to file his written statement of defence. By his letter dated February 10, 1983, addressed to the Chairman-cum-Managing Director, Sengupta denied the charges made against him and asked for inspection of documents and copies of statements of witnesses mentioned in the said charge-sheet. By a letter dated February 26, 1983, signed by the Chairman-cum-Managing Director notice was given to Sengupta under cl. (i) of Rule 9 of the said Rule, terminating his service with the Corporation with immediate effect. Along with the said letter a cheque for three months' basic pay and dearness allowance in lieu of notice was enclosed. G\n12. Both Ganguly and Sengupta filed writ petitions in Calcutta High Court u/art. 226 of the Constitution challenging the termination of their service as also the validity of the said Rule 9(i). In both these writ petitions rule nisi was issued and an ex parte interim order staying the operation of the said notice of termination was passed by a learned Single Judge of the High Court. The Appellants before us went in Letters Patent Appeal before a Division Bench of the said High Court against the said ad interim orders, the appeal in the case of Ganguly being F.M.A.T. No. 1604 of 1983 and in the case of Sengupta being F.M.A.T. No. 649 of 1983. On January 28, 1985, the Division Bench ordered in both these Appeals that the said writ petitions should stand transferred to and heard by it along with the said appeals. The said appeals and writ petitions were thereupon heard together and by a common judgment delivered on August 9, 1985, the Division Bench held that the Corporation was a State within the meaning of Art. 12 of the Constitution and that the said Rule 9(i) was ultra vires Art. 14 of the Constitution. Consequently the Division Bench struck down the said Rule 9(i) as being void. It also quashed the impugned orders of termination dated February 26, 1983. It is against the said judgment and orders of the Calcutta High Court that the present Appeals by Special Leave have been filed.\n13. The contentions raised on behalf of the Corporation at the hearing of these Appeals may be thus summarized :\n(1) A Government company stands on a wholly different footing from a statutory corporation for while a statutory corporation is established by a statute, a Government company is incorporated like any other company by obtaining a certificate of incorporation under the Companies Act and, therefore, a Government company cannot come within the scope of the term \"the State\" as defined in Art. 12 of the Constitution.\n(2) A statutory corporation is usually established in order to create a monopoly in the State in respect of a particular activity. A Government company is, however, not established for this purpose.\n(3) The Corporation does not have the monopoly of inland water transport but is only a trading company as is shown by the objects clause in its u Memorandum of Association. 305\n(4) Assuming a Government company is \"the State\" within the meaning of Article 12, a contract of employment entered into by it is like any other contract entered into between two parties and a term in that contract cannot be struck down under Art. 14 of the Constitution on the ground that it is arbitrary or unreasonable or unconscionable or one-sided or unfair.\nAt the hearing of these Appeals the Union of India, which is the Second Respondent in these Appeals, joined in the contentions raised by the Corporation.\nThe arguments advanced on behalf of the contesting Respondents in broad outlines were as follows :\n(1) The definition of the expression \"the State\" given in Art. 12 is wide enough to include within its scope and reach a Government company.\n(2) A State is entitled to carry on any activity, even a trading activity, through any of its instrumentalities or agencies, whether such instrumentality or agency be one of the Departments of the Government, a statutory corporation, a statutory authority or a Government company incorporated under the Companies Act.\n(3) Merely because a Government company carries on a trading activity or is authorized to carry on a trading activity does not mean that it is excluded from the definition of the expression \"the State\" contained in Art. 12.\n(4) A Government company being \"the State\" within , the meaning of Art. 12 is bound to act fairly J and reasonably and if it does not do so, its action can be struck down under Art. 14 as being arbitrary.\n(5) A contract of employment stands on a different footing from other contracts. A term in a contract of employment entered into by a private employer H which is unfair, unreasonable and unconscionable is bad in law. Such a term in a contract of employment entered into by the State is, therefore, also bad in law and can be struck down u/art. 14.\n14. During the course of the hearing of these Appeals the Central Inland Water Transport Corporation Officers' Association made an application for permission to intervene in these Appeals and permission to intervene was granted to it by this Court. The said Association supported the stand taken by the contesting Respondents.\nWe will now examine the correctness of the rival submissions advanced at the Bar.\n15. The word \"State\" has different meanings depending upon the context in which it is used. In the sense of being a polity, it is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2005, as \"a body of people occupying a defined territory and organized under a sovereign government\". The same dictionary defines the expression \"the State\" as \"the body politic as organized for supreme civil rule and government; the political organization which is the basis of civil government; hence, the supreme civil power and government vested in a country or nation\". According to Black's Law Dictionary, Fifth Edition, page 1262, \"In its largest sense, a 'state' is a body politic or a society of men\". According to Black, the term \"State\" may refer \"either to the body politic of a nation (e.g. United States) or to an individual governmental unit of such nation (e.g. California)\". In modern international practice, whether a community is deemed a State or not depends upon the general recognition accorded to it by the existing group of other States. A State must have a relatively permanent legal organization, determining its structure and the relative powers of its major governing bodies or organs. This legal organizational permanence of a State is to be found in its Constitution. With rare exceptions, such as the United Kingdom, most States now have a written Constitution. the Constitutional structure of a State may be either unitary, as when it has a single system of government applicable to all its parts, or federal when it has one system of government operating in certain respects and in certain matters in all its parts and also separate governments operating in other respects in distinct parts of the whole. In such a case the units or sub-divisions having separate governments are variously called 'states' as in India, U.S.A. and Australia, 'provinces' as in Canada, 'cantons' as in Switzerland, or designated by other names. B\n16. Our Constitution is federal in structure. Cl. (1) of Art. 1 of the Constitution provides that \"India, that is Bharat, shall be a Union of States\" and cl. (2) of that Article provides that \"The States and the territories thereof shall be as specified in the First Schedule\". me word \"States\" used in Art. 1 thus refers to the federating units, India itself being a State consisting of these units. The term \"States\" is defined variously in some of the other Articles of the Constitution as the context of the particular Part of the Constitution in which it is used requires. Part VI of the Constitution is headed \" me States\" and provides for the form of the three organs of a State, namely, the Executive, the Legislature and the Judiciary. Article 152, which is the opening Article in Part VI of the Constitution, provides as follows :\n\"152. Definition. -\nIn this Part, unless the context otherwise requires, the expression 'State' does not include the State of Jammu and Kashmir.\"\n17. The State of Jammu and Kashmir is excluded because that State, though one of the States which constitute the Union of India, had, in pursuance of the provisions of Art. 370 of the Constitution read with the Constitution (Application to Jammu and Kashmir) Order, 1954 (C.O. 48), set up a Constituent Assembly for the internal Constitution of the State and it had framed the Constitution of Jammu and Kashmir which was adopted and enacted by that Constituent Assembly on November 17, 1965. Art. 152 also, therefore, uses the expression \"State\" as meaning the federating units which constitute the Union of India. Part XIV of the Constitution deals with services under the Union and the States. Art. 308 provides as follows :\n\"308. Interpretation. -\n18. This definition read with the other provisions of Part XIV shows that the word \"State\" applies to the federating units (other than the State of Jammu and Kashmir for the reason mentioned above) which together constitute the Union of India because in the other Articles of Part XIV wherever the Union of India is referred to, it is described as \"the Union\". Art. 366 of the Constiution defines certain expressions used in the Constitution of India. That Article, however, does not contain any definition of the term \"State\". U/art. 367(1), unless the context otherwise requires, the General Clauses Act, 1897 (Act No. X of 1897), subject to any adaptations and modifications that may be made therein by the President of India u/art. 372 to bring that Act into accord with the provisions of the Constitution, applies for the interpretation of the Constitution. Cl. (58) of s. 3 of the General Clauses Act defines the term \"State\" as follows :\n\"(58) 'State' -\n(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part State or a Part State. and\n(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union Territory.\"\nThis definition, therefore, also confines the term \"State\" to the federating units which together form the Union of India.\nWe are concerned in these Appeals with Art. 12. Art. 12 forms part of Part III of the Constitution which deals with Fundamental Rights and provides as follows :\n\"12. definition. - In this Part, unless the context otherwise requires, 'the State' includes the Government and Parliament of India and the Government and the Legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India.\"\nThe same definition applies to the expression \"the State\" when used in Part IV of the Constitution which provides for the Directive Principles of State Policy, for the opening Article of Part IV, namely, Article 36, provides :\n\"36. Definition. -\nIn this Part, unless the context otherwise requires, 'the State' has the same meaning as in\nPart III.\"\nThe expression \"local authority\" is defined in cl. (31) of s. 3 of the General Clauses Act as follows :\n\"(31) 'Local authority' shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.\"\n19. Thus, the expression \"the State\" when used in Parts III and IV of the Constitution is not confined to only the federating States or the Union of India or even to both. By the express terms of Art. 12 the expression \"the State\" includes -\n(1) the Government of India,\n(2) Parliament of India\n(3) the Government of each of the States which constitute the Union of India,\n(4) the Legislature of each of the States which constitute the Union of India,\n(5) all local authorities within the territory of India,\n(6) all local authorities under the control of the Government of India,\n(7) all other authorities within the territory of India, and\n(8) all other authorities under the control of the Government of India.\nThere are three aspects of Art. 12 which require to be particularly noticed. These aspects are\n(i) the definition given in Art. 12 is not an explanatory and restrictive definition but an extensive definition,\n(ii) it is the definition of the expression \"the State\" and not of the term \"State\" or \"States\", and\n(iii) it is inserted in the Constitution for the purposes of Parts III and IV thereof.\n20. As pointed out in Craies on Statute Law, Seventh Edition, page 213, where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and facie restrictive; and whenever an interpretation clause defines a term to include something, the definition is extensive. While an explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause, so that wherever the word defined is used in the particular statute in which that interpretation clause occurs, it will bear only that meaning unless where, as is usually provided, the subject or context otherwise requires, an extensive definition expands or extends the meaning of the word defined to include within it what would otherwise not have been comprehended in it when the word defined is used in its ordinary sense. Art. 12 uses the word \"includes\". It thus extends the meaning of the expression \"the State\" so as to include within it also what otherwise may not have been comprehended by that expression when used in its ordinary legal sense.\nArt. 12 defines the expression \"the State\" while the other Articles of the Constitution referred to above, such as Art. 152 and Article 308, and cl. (58) of s. 3 of the General Clauses Act defines the term \"State\". The deliberate use of the expression \"the State\" in Art. 12 as also in Art. 36 would have normally shown that this expression was used to denote the State in its ordinary and Constitutional sense of an independent or sovereign State and the inclusive clause in Art. 12 would have extended this meaning to include within its scope whatever has been expressly set out in Art. 12. The definition of the expression \"the State\" in Article 12, is however, for the purposes of Parts III and IV of the Constitution. The contents of these two Parts clearly show that the expression \"the State\" in Art. 12 as also in Art. 36 is not confined to its ordinary and Constitutional sense as extended by the inclusive portion of Art. 12 but is used in the concept of the State in relation to the Fundamental Rights guaranteed by Part III of the Constitution and the Directive Principles of State Policy contained in Part IV of the Constitution which Principles are declared by Art. 37 to be fundamental to the governance of the country and enjoins upon the State to apply in making laws.\n21. What then does the expression \"the State\" in the context of Parts III and IV of the Constitution mean?\nMen's concept of the State as a polity or a political unit or entity and what the functions of the State are or should be have changed over the years and particularly in the course of this century. A man cannot obstinately cling to the same ideas and concepts all his life. As Emerson said in his essay on \"Self-Reliance\", \"A foolish consistency is the hobgoblin of little minds\". Man is by nature ever restless, ever discontent, ever seeking something new, ever dissatisfied with what he has. m is inherent trait in the nature of man is reflected in the society in which he lives for a society is a conglomerate of men who live in it. Just as man by nature is H dissatisfied, so is society. Just as man seeks something new, ever hoping that a change will bring about something better, so does society. Old values, old ideologies and old systems are thus replaced by new ideologies, a new set of values and a new system, they in their turn to be replaced by different ideologies, different values and a different system. The ideas that seem revolutionary become outmoded with the passage of time and the heresies of today become the dogmas of tomorrow. What proves to be adequate and suited to the needs of a society at a given time and in particular circumstances turns out to be wholly unsuited and inadequate in different times and under different circumstances.\n22. The story of mankind is punctuated by progress and retrogression. Empires have risen and crashed into the dust of history. Civilizations have flourished, reached their peak and passed away. In the year 1625, Carew, C.J., while delivering The opinion of the House of Lords in Re the Earldom of Oxford, [1625] W.Jo. 96, 101. s.c. [1626] 82 E.R. 50, 53, in a dispute relating to the descent of that Earldom, said :\n\"And yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene \"\nThe cycle of change and experiment, rise and fall, growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from \"The Rock\" said :\n\"O Perpetual revolution of configured stars, O Perpetual recurrence of determined seasons, O world of spring and autumn, birth and dying! The endless cycle of idea and action, Endless invention, endless experiment\".\n23. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations Of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said, 'Then I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool.\" The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time-consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society. n\n24. A large number of authorities were cited before us to show how the courts have interpreted the expression, \"the State\" in Art. 12. As these authorities are decisions of this Court, we must perforce go through the whole gamut of them though we may preface an examination of these authorities with the observation that they only serve to show how the concepts of this Court have changed both with respect to Art. 12 and Art. 14 to keep pace with changing ideas and altered circumstances. Before embarking upon this task we would, however, like to quote the following passage (which has become a classic) from the opening paragraph of Justice Oliver Wendell Holmes's \"The Common Law\" which contains the lectures delivered by him while teaching law at Harvard and which book was published in 1881 just one year before he was appointed an Associate Justice of the Massachusetts Supreme Judicial Court:\n\" It is something to show that the consistency of a system requires a particular result, but it is not all. me life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.\"\nWe will, therefore, briefly sketch the temper of the times in which our Constitution was enacted and the purposes for which Parts III and IV inserted in our Constitution.\n25. The bombs which had rained down upon the cities of Europe, Africa and Asia and the Islands in the Pacific had changed, and changed dramatically, not only the political but also the sociological, ideological and economic map of the world. A world reeling from the horrors of the Second World War and seeking to recover from the trauma caused by its atrocities sought to band all nations into one Family of Man and for this purpose set up the United Nations Organization in order to save succeeding generations from the scourge of war which had twice in this century brought untold sorrow to mankind and in order to reaffirm faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights, of man and woman and of nations large or small, and thus to give concrete shape to the dream of philosophers and poets that the war-drums would throb no longer and the battle-banners would be furled in the Parliament of Man and the Federation of the World.\nBut much had gone before. There was the signing of the Inter-Allied Declaration of June 12, 1941, at St. James's Palace in London by the representatives of the United Kingdom, the Commonwealth, General de Gaulle and the governments in exile of the European countries conquered by Nazi Germany; there was the Atlantic Charter of August 14, 1941; there was the Declaration of the United Nations signed on New Year's Day of 1942 at Washington, D.C., by twenty-six nations who were fighting the Axis; there was the Declaration made at the Moscow Conference in October 1943 and at the Teheran Conference on December 1, 1943; there was the Dumbarton Oaks Conference held in Washington, D.C., in August and September 1944; there was the Yalta Conference in February 1945; all these culminating in the adoption on June 25, 1945, of the Charter of the United Nations in the Opera House of San Francisco and the affixing of signatures thereon the next day in the auditorium of the Veterans' Memorial Hall. Thereafter, in pursuance of Art. 68 of the Charter of the United States, the Economic and Social Council set up the Human Rights Commission in 1946. This Commission began its work in January 1947 under the chairmanship of Mrs. Eleanore Roosevelt, the widow of President Franklin D. Roosevelt. The Universal Declaration of Human Rights prepared by the Commission was adopted by the General Assembly on December 10, 1948, at its session held in the Palais de Chaillot in Paris. Of the fifty-eight nations represented at that Session, none voted against it, two were absent, and eight abstained from voting.\n26. It was thus in an atmosphere surcharged with human suffering and yet a firm resolve not to succumb to it that the Constituent Assembly which was set up to frame the Constitution of India embarked upon its task on December 9, 1946, re-assembled after the midnight of August 14, 1947, as the sovereign Constituent Assembly for India. After Partition and fresh elections in the new Provinces of West Bengal and East Punjab, it re-assembled on October 31, 1947, and thereafter on November 26, 1949 adopted and enacted the Constitution of India.\nBefore commencing its work, the Constituent Assembly adopted a Resolution laying down its objectives :\n\" 1. This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution.\n4. Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people: and\n5. Wherein shall be guaranteed and secured to all the people of India justice, social, economic and political : equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association, and action, subject to law and public morality; and\n6. Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and\n7. Whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilised nations: and\n8. This ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind\".\n27. In its strict legal sense the written Constitution of a country is a document which defines the regular form or system of its government, containing the rules that directly or indirectly affect the distribution or exercise of the sovereign power of the State and it is thus mainly concerned with the creation of the three organs of the State - the executive, the legislature and the judiciary, and the distribution of governmental power among them and the definition of their mutual relation\n28. The framers of our Constitution did not, however, want to frame for the Sovereign Democratic Republic which was to emerge from their labours a Constitution in the strict legal sense. They were aware that there were other Constitutions which had given expression to certain ideals as the goal towards which the country should strive and which had defined the principles considered fundamental to the governance of the country. They were aware of the events that had culminated in the Charter of the United Nations. They were aware that the Universal Declaration of Human Rights had been adopted by the General Assembly of the United Nations, for India was a signatory to it. They were aware that the Universal Declaration of Human Rights contained certain basic and fundamental rights appertaining to all men. They were aware that these rights were born of the philosophical speculations of the Greek and Roman Stoics and nurtured by the jurists of ancient Rome. They were aware that these rights had found expression in a limited form in the accords entered into between the rulers and their powerful nobles, as for instance, the accord of 1188 entered into between King Alfonso IX and the Cortes of Leon, the Magna Carta of 1215 wrested from King John of England by his barons on the Meadow of Runnymede and to which he was compelled to affix his Great Seal on a small island in the Thames in Buckinghamshire - still called Magna Carta Island, and the guarantees which King Andrew II of Hungary was forced to give by his Golden Bull of 1822. They were aware of the international treaties of the midseventeenth century for safeguarding the right of religious freedom and the rights of aliens.\nThey were aware of the full blossoming of the concept of Human Rights in the writings of the \"philosophes\" such as Voltaire, Rousseau, Diderot, Rayal, d'Alembert and others, and of the concrete expression given to it in the various Declarations of Rights of the American Colonies (particularly Virginia) and in the American Declaration of Independence. They were aware that in 1789, during the early years of the French Revolution, the French National Assembly had in \"The Declaration of the Rights of Man and of the Citizen\" proclaimed these rights in lofty words and that Revolutionary France had translated them into practice with bloody deeds. They were aware of the treaties entered into between various States in the nineteenth century providing protection for religious and other minorities. They were aware that these rights had at last found universal recognition in the Universal Declaration of Human Rights.\n29. They were aware that the first ten Amendments to the Constitution of the United States of America contained certain rights akin to Human Rights. They knew that the Constitution of Eire contained a chapter headed \"Fundamental Rights\" and another headed \"Directive Principles of State Policy\". They were aware that the Constitution of Japan also contained a chapter headed \"Rights and Duties of the People\". They were aware that the major traditional functions of the State have been the defence of its territory and its inhabitants against external aggression, the maintenance of law and order; the administration of justice, the levying of taxes and the collection of revenue. They were also aware that increasingly, and particularly in modern times, several States have assumed numerous and wide ranging functions, especially in the fields of education, health, social security, control and maintenance of natural resources and natural assets, transport and communication services and operation of certain industries considered basic to the economy and growth of the nation. They were also aware that s. 8 of Art. 1 of the Constitution of the United States of America contained \"a welfare clause\" empowering the federal government to enact laws for the overall general welfare of the people. They were aware that countries such as the United States, the United Kingdom and Germany had passed social welfare legislation.\n30. The framers of our Constitution were men of vision and ideals, and many of them had suffered in the cause of freedom. They wanted an idealistic and philosphic base upon which to raise the administrative superstructure of the Constitution. They, therefore, headed our Constitution with a preamble which declared India's goal and inserted Parts III and IV in the Constitution.\nThe Preamble to the Constitution, as amended by the A Constitution (Forty-second Amendment) Act, 1976, proudly proclaims:\n\"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens :\nJUSTICE, social, economic and political;\nLIBERTY of thought, expression, belief, faith and worship;\nEQUALITY of status and of opportunity; and to promote among them all\nFRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;\nIN OUR CONSTITUENT ASSEMBLY this twentysixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE\nTO OURSELVES THIS CONSTITUTION.\"\n31. Part III of the Constitution gives a Constitutional mandate for certain Human Rights - called Fundamental Rights in the Constitution -- adapted to the needs and requirement of a country only recently freed from foreign rule and desirous of forging a strong and powerful nation capable of taking an equal place among the nations of the world. It also provides a Constitutional mode of enforcing them. Amongst these Rights is the one contained in Art. 14 which provides : G\n\"14. Equality before law .--\nThe State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.\"\nPart IV of the Constitution prescribes the Directive Principles of State Policy. These Directive Principles have not received the same Constitutional mandate for their enforcement as the Fundamental Rights have done. In the context of the Welfare State which is the goal of our Constitution, Arts. 37 and 38(1) are important. They are as follows :\n\"37. Application of the Principles contained in this Part. -\nThe provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.\"\n\"38. (1) State to secure A social order for the promotion of welfare of the people. -\n(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.\"\nU/cl. (a) of Article 39, the State is, in particular, to direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Art. 41 directs that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work.\n32. The difference between Part III and Part IV is that while Part III prohibits the State from doing certain things (namely, from infringing any of the Fundamental Rights), Part IV enjoins upon the State to do certain things. This duty, however, is not enforceable in law but none the less the Court cannot ignore what has been enjoined upon the State by Part IV, and though the Court may not be able actively to enforce the Directive Principles of State Policy by compelling the State to apply them in the governance of the country or in the making of laws, the Court can, if the State commits a breach of its duty by acting contrary to these Directive Principles, prevent it from doing so.\n33. In the working of the Constitution it was found that some of the provisions of the Constitution were not adequate for the needs of the country or for ushering in a Welfare State and the constituent body empowered in that behalf amended the Constitution several times. By the very first amendment made in the Constitution, namely, by the Constitution (First Amendment) Act, 1951, cl. (6) of Art. 19 was amended with retrospective effect. Under this amendment, sub-cl. (g) of cl. (1) of Art. 19 which guarantees to all citizens the right to carry on any occupation, trade or business, was not to prevent the State from making any law reIating to the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. This amendment also validated the operation of all existing laws in so far as they had made similar provisions. Article 298, as originally enacted, provided that the executive power of the Union and of each State was to extend, subject to any law made by the appropriate Legislature, to the grant, sale, disposition or mortgage of any property held for the purposes of the Union or of such State, as the case may be, and to the purchase or acquisition of property for those purposes respectively, and to the making of contracts; and it further provided that all property acquired for the purposes of the Union or of a State was to vest in the Union or in such State, as the case may be. Art. 298 was substituted by the Constitution (Seventh Amendment) Act, 1956. As substituted, it provides as follows :\n\"298. Power to carry on trade, etc. -\nThe executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose :\nProvided that -\n(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and\n(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to Legislation by Parliament.\"\n34. Article 298, as so substituted, therefore, expands the executive power of the Union of India and of each of the States which collectively constitute the Union to carry on any trade or business. By extending the executive power of the Union and of each of the States to the carrying on of any trade or business, Art. 298 does not, however, convert either the Union of India or any of the States which collectively form the Union into a merchant buying and sell- ing goods or carrying on either trading or business activity, for the executive power of the Union and of the States, whether in the field of trade or business or in any other field, is always subject to Constitutional limitations and particularly the provisions relating to Fundamental Rights in Part III of the Constitution and is exerciseable in accordance with and for the furtherance of the Directive Principles of State Policy prescribed by Part IV of the Constitution.\n35. The State is an abstract entity and it can, therefore, only act through its agencies or instrumentalities, whether such agency or instrumentality be human or juristic. me trading and business activities of the State constitute \"public enterprise\". The structural forms in which the Government operates in the field of public enterprise are many and varied. These may consist of Government departments, statutory bodies, statutory corporations, Government companies, etc. In this context, we can do no better than cite the following passage from \"Government Enterprise - A Comparative Study\" by W. Friedmann and J.F. Garner,:\n\"The variety of forms in which the various States have, at different times, proceeded to establish public enterprises is almost infinite, but three main types emerge to which almost every public enterprise approximates: (1) departmental administration; (2) the joint stock company controlled completely or partly by public authority; and finally (3) the public corporation proper, as a distinct type of corporation different from the private law company. Each of these three types will be briefly analysed in a comparative perspective.\nAs the tasks of Government multiplied, as a result of defence needs, post-war crises, economic depressions and new social demands, the framework of civil service administration became increasingly insufficient for the handling of the new tasks which were often of a specialised and highly technical character. At the same time, 'bureaucracy' came under a cloud. In Great Britain j the late Lord Hewart had written of 'the new l despotism,' and Dr. C.K. Allen of 'bureaucracy triumphant'.\n36. In France the Confederation Generale du Travail (CGT) had stated in its Programme in 1920 that 'We do not wish to increase the functions of the State itself nor strengthen a system which would subject the basic industry to a civil service regime, with all its lack of responsibility and its basic defects, a process which would subject the forces of production to a fiscal monopoly. This distrust of government by civil service, justified or not, was a powerful factor in the development of a policy of public administration through separate corporations which would operate largely according to business principles and be separately accountable. In the common law countries, where the Government still enjoys considerable immunities and privileges in the fields of legal responsibility, taxation, or the binding force of statutes, other considerations played their part. It seemed necessary to create bodies which, if they were to compete on fair terms in the economic field, had to be separated and distinct from the Government as regards immunities and privileges.\"\n37. The immunities and privileges possessed by bodies so set up by the Government in India cannot, however, be the same as those possessed by similar bodies established in the private sector because the setting up of such bodies is referable to the executive power of the Government under Art. 298 to carry on any trade or business. As pointed out by Mathew, J., in Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another, 1975 Indlaw SC 107, \"The governing power wherever located must be subject to the fundamental constitutional limitations\". The privileges and immunities of these bodies, therefore, are subject to Fundamental Rights and exercisable in accordance with and in furtherance of the Directive Principles of State Policy.\n38. It is in the context of what has been stated above that we will now review the authorities cited at the Bar. When we consider these authorities, we will see how as Constitutional thinking developed and the conceptual horizen widened, new vistas, till then shrouded in the mist of conventional legal phraseology and traditional orthodoxy, opened out to the eye of judicial interpretation, and many different facets of several Articles of the Constitution, including Art. 12 and 14, thitherto unperceived, became visible. There, however, still remain vistas yet to be opened up, veils beyond which we today cannot see to be lifted, and doors to which we still have found no key to be unlocked.\n39. In Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab, 1955 Indlaw SC 16, the State of Punjab, which used to select books published by private publishers for prescribing them as text-books and for this purpose used to invite offers from publishers and authors, altered that practice and amended the notification in that behalf so that thereafter only authors were asked to submit their books for approval as text-books. The validity of this notification was challenged inter alia on the ground that the executive power of a State u/art. 162 extended only to executing the laws passed by the legislature or supervising the enforcement of such laws. Under Article 162, subject to the provisions of the Constitution, the executive power of a State extends to the matters with respect to which the Legislature of the State has power to make laws, namely, the matters enumerated in the State List (List II) in the Seventh Schedule to the Constitution. Under the proviso to that Article, in any matter with respect to which the Legislature of a State and Parliament have power to make laws, that is, the matters enumerated in the Concurrent List (List III) in the Seventh Schedule to the Constitution, the executive power of the State is to be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. U/art. 154(1), the executive power of the State is vested in the Governor and is to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. The corresponding provisions as regards the executive power of the Union of India are contained in Art. 73 and Art. 53(1). Repelling the above contention, Mukherjea, C.J., who spoke for the Constitution Bench of the Court observed  :\n\"A modern State is certainly expected to engage in all activities necessary for the promotion of the social and economic welfare of the community.\"\n40. The following passage from the judgment of the Court in that case with respect to the meaning of the expression \"executive function\" is instructive and requires to be reproduced :\n\"It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legis lature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of art. 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.\"\n41. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal and others, 1967 Indlaw SC 23 a Constitution Bench of this Court by a majority held that the Electricity Board of Rajasthan constituted under the Electricity (supply) Act, 1948 (Act No. 54 of 1948) was \"the State\" as defined in Art. 12 because it was \"other authority\" within the meaning of that Article. The Court held that the expression \"other authority\" was wide enough to include within it every authority created by a statute, on which powers are conferred to carry out governmental or quasi-governmental functions and functioning within the territory of India or under the control of the Government of India and the fact that some of the powers conferred may be for the purpose of carrying on commercial activities is not at all material because u/arts. 19(1)(g) and 298 even the State is empowered to carry on any trade or business. The Court further held that in interpreting the expression \"other authority\" the principle of ejusdem generis should not be applied, because, for the application of A that rule, there must be distinct genus or category running through the bodies previously named; and the bodies specially named in Art. 12 being the executive Government of the Union and the States, the Legislatures of the Union and the States and local authorities, there is no common genus running through these named bodies, nor could these bodies be placed in one single category on any rational basis.\n42. Praga Tools Corporation v. C.A. Imanual and others,1969 Indlaw SC 404 was a case heavily relied upon by the Appellants. Praga Tools Corporation was a company incorporated under the Companies Act, 1913, and therefore, a company within the meaning of the Companies Act, 1956. At the material time the Union of India held fifty-six per cent of the shares of the company and the Government of Andhra Pradesh held thirty-two per cent of its shares, the balance of twelve per cent shares being held by private individuals. As being the largest shareholder, the Union of India had the power to nominate the company's directors. The company had entered into two settlements with its workmen's union. These settlements were arrived at and recorded in the presence of the Commissioner of Labour. Subsequently, the company entered into another agreement with the union, the effect of which was to enable the company, notwithstanding the earlier two settlements, to retrench ninety-two of its workmen. Some of the affected workmen thereupon filed a writ petition u/art. 226 of the Constitution in the Andhra Pradesh High Court challenging the validity of the subsequent agreement.\n43. A learned Single Judge of the High Court dismissed the petition on merits. In appeal, a Division Bench of that High Court held that the company being one registered under the Companies Act and not having any statutory duty or function to perform was not one against which a writ for mandamus or any other writ could lie. The Division Bench, however, held that though the writ petition was not maintainable the High Court could grant a declaration in favour of the petitioners that the impugned agreement was illegal and void and granted the said declaration. In appeal by the company, a two-Judge Bench of this Court held that the Company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus. So far as declaration given by the Division Bench of the High Court was concerned, the Court held  :\n\"In our view once the writ petition was held to be misconceived on the ground that it could not lie against a company which was neither a statutory company nor one having public duties or responsibilities imposed on it by a statute, no relief by way of a declaration as to invalidity of an impugned agreement between it and its employees could be granted. The High Court in these circumstances ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder.\"\n44. Though this case was strongly relied upon by the Appellants, we fail to see how it is relevant to the submissions advanced by the Appellants. The subsequent agreement enabling the company to retrench some of its workmen was challenged on the ground that it was in breach of the earlier settlements entered into between the company and the workmen's union. No question of violation of any of the Fundamental Rights was at all raised in that case. The only question which fell for determination was whether a writ of mandamus can issue to compel the performance of the earlier settlements or to restrain the enforcement of the impugned subsequent agreement and the dispute, therefore, was one which fell within the scope of the Industrial Disputes Act, 1947 (Act No. 14 of 1947).\n45. In State of Bihar v. Union of India and another, 1969 Indlaw SC 386 the State of Bihar filed nine suits u/art. 131 in connection with the delayed delivery of iron and steel materials for the construction work- of the Gandak project. In all these suits the first defendant was the Union of India while the second defendant in six of these suits was the Hindustan Steel Ltd. and in the remaining three, the Indian Iron and Steel Company Ltd. This Court held that the specification of the parties in Art. 131 was not of an extensive kind and excluded the idea of a private citizen, a firm or a corporation figuring as a disputant either alone or even along with a State or with the Government of India in the category of a party to the dispute u/art. 131. The Court further held that the enlarged definition of the expression \"the State\" given in Parts III and IV of the Constitution did not apply to Art. 131 and, therefore, a body like the Hindustan Steel Ltd. could not be considered as \"a State\" for the purpose of Art. 131. We fail to see in what way this decision is at all relevant to the point. The question before the Court in that case was whether the Hindustan Steel Ltd. Or the Indian Iron and Steel Company Ltd. was a State to enable a suit to be filed against it u/art. 131 and not whether either of these companies fell within the scope of the definition of the expression \"the State\" in Art. 12.\n46. Another authority relied upon by the Appellants was S.L. Agarwal v. General Manager, Hindustan Steel Ltd.1969 Indlaw SC 36. The facts of that case and the contentions raised thereunder show that this authority is equally Irrelevant. In that case an employee of the Hindustan Steel Ltd., whose services were terminated, filed a petition u/art. 226 claiming that such termination was wrongful as it was really by way of punishment as the provisions of Art. 311(2) of the Constitution had not been complied with. This Court held that the protection of cl. (2) of Art. 311 was available only to the categories of persons mentioned in that clause and that though the appellant held a civil post as opposed to a military post, it was not a civil post under the Union or a State and, therefore, he could not claim the protection of Art. 311(2). The contention which was raised on behalf of the appellant was that as Hindustan Steel Ltd. was entirely financed by the Government and its management was directly the responsibility of the Government, the post was virtually under the Government of India. This contention was rejected by the Court holding that the company had its independent existence and by law relating to corporations it was distinct from its members and, therefore, it was not a department of the Government nor were its employees servants holding posts under the Union. No question arose in that case whether the company was \"the State\" within the meaning of Art. 12 and all that was sought to be contended was that it was a department of the Government.\n47. In Sabhajit Tewary v. Union of India and others, 1975 Indlaw SC 106 this Court held that the Council of Scientific and Industrial Research which was a society registered under the Societies Registration Act was not an authority within the meaning of Art. 12 and, therefore, certain letters written by it to the petitioner with respect to his remuneration could not be challenged as being discriminatory and violative of Art. 14. The contention raised in that case was that the rules governing the said Council showed that it was really an agent of the Government. This Court rejected the said contention in these words  :\n\"This contention is unsound. The Society does not have a statutory character like the Oil and Natural Gas Commission, or the Life Insurance Corporation or Industrial Finance Corporation. It is a society incorporated in accordance with the provisions of the Societies Registration Act. The fact that the t) Prime Minister is the President or that the Government appoints nominees to the Governing Body or that the Government may terminate the membership will not establish anything more than the fact that the Government takes special care that the promotion, guidance and co-operation of scientific and industrial research, the institution and financing of specific researches, establishment or development and assistance to special institutions or departments of the existing institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner.\"\n48. We now come to a case of considerable importance, namely, Sukhdev Singh and others v. Bhagatram Sardar Singh Kaghuvanshi and another, 1975 Indlaw SC 107. Two questions fell to be determined in this case, namely, (i) whether statutory corporations are comprehended within the expression \"the State\" as defined in Article 12, and (ii) whether the regulations framed by a statutory corporation in exercise of the power conferred by the statute creating the corporation have the force of law. The majority of a Constitution Bench of this court answered both these A questions in the affirmative. me statutory corporations before the Court in that case were the Oil and Natural Gas Commission established under the Oil and Natural Gas Commission Act, 1956, the Life Insurance Corporation established under the Life Insurance Corporation Act, 1956, and the Industrial Finance Corporation established under the Industrial Finance Corporation Act, 1948. Ray, C.J., speaking for himself and Chandrachud and Gupta, JJ., pointed out  that \"The State undertakes commercial functions in combination with Governmental functions in a welfare State.\" The majority held that \"the State\" as defined in Art. 12 comprehends bodies created for the purpose of promoting economic interests of the people and the circumstance that statutory bodies are required to carry on some activities of the nature of trade or commerce does not indicate that they must be excluded from the scope of the expression \"the State\", for a public authority is a body which has public or statutory duties to perform and which performs those duties and carries on its transactions for the benefit of the public and not for private profit and by that fact such an authority is not excluded from making a profit for the public benefit. Mathew, J., in his concurring judgment held that a finding of State financial support plus an unusual degree of control over the management and policies might lead one to characterize an operation as State action. The learned Judge observed  :\n\"Institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the function performed government agencies. Activities which are too fundamental to the society are by definition too important not to be considered government function. This demands the delineation of a theory which requires government to provide all persons with all fundamentals of life and the determinations of aspects which are fundamental. The State today has an affirmative duty of seeing that all essentials of life are made available to all persons. The task of the State today is to make possible the achievement of a Good life both by removing obstacles in the path of such achievements and in assisting individual in realizing his ideal of self-perfection. Assuming that indispensable functions are government functions, the problem remains of defining the line between fundamentals and non-fundamentals. The analogy of the doctrine of 'business affected with a public interest' immediately comes to mind.\"\n49. After referring to the relevant provisions of the Acts under which the above statutory bodies were established, Mathew, J., continued  :\n\"The fact that these corporations have independent personalities in the eye of law does not mean that they are not subject to the control of government or that they are not instrumentalities of the government. These corporations are instrumentalities or agencies of the state for carrying on businesses which otherwise would have been run by the state departmentally. If the state had chosen to carry on these businesses through the medium of government departments, there would have been no question that actions of these departments would be 'state actions'. Why then should actions of these corporations be not state actions? The ultimate question which is relevant for our purpose is whether such a corporation is an agency or instrumentality of the government for carrying on a business for the benefit of the public. In other words, the question is, for whose benefit was the corporation carrying on the business? When it is seen from the provisions of that Act that on liquidation of the Corporation, its assets should be divided among the shareholders, namely, the Central and State governments and others, if any, the implication is clear that the benefit of the accumulated income would go to the Central and State Governments. Nobody will deny that an agent has a legal personality different from that of the principal. The fact that the agent is subject to the direction of the principal does not mean that he has no legal personality of his own. Likewise, merely because a corporation has legal personality of its own, it does not follow that the corporation 1 cannot be an agent or instrumentality of the state, l if it is subject to control of government in all important matters of policy. No doubt, there might be some distinction between the nature of control exercised by principal over agent and the control exercised by government over public corporation. That, I think is only a distinction in degree. The crux of the matter is that public corporation is a new type of institution which has sprung from the new social and economic functions of government and that it therefore does not neatly fit into old legal categories. Instead of forcing it into them, the later should be adapted to the needs of changing time and conditions.\"\n50. Various aspects of the question which we have to decide were exhaustively considered by this Court in Ramana Dayaram Shetty v. The International Airport Authority of India and others, 1979 Indlaw SC 16. In that case the Court observed ,  \"Today the Government, as a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights, etc.\" The ques- tion in that case was whether the International Airport Authority constituted under the International Airports Authority Act, 1971, came within the meaning of the expression \"The State\" in Art. 12. Under the said Act, the Authority was a body corporate having perpetual succession and a common seal and was to consist of a Chairman and certain other members appointed by the Central Government. The Central Government had the power to terminate the appointment of or remove any member from the Board. Although the authority had no share capital of its own, capital needed by it for carrying out its functions was to be provided only by the Central Government. While considering the question whether such a body corporate was included within the expression \"the State\", this Court said  :\n\"A corporation mar be created in one of two ways. It may be either established by statute or incor- porated under a law such as the Companies Act 1956 or the Societies Registration Act 1860. Where a Corporation is wholly controlled by Government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government. But ordinarily where a corporation is established by statute, it is autonomous in its working, subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a corporation incorporated under law is managed by a board of directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government?\"\n51. After considering various factors and the case law on the subject, the Court thus summed up the position :\n\"It will thus be seen that there are several factor which may have to be considered in determining whether corporation is an agency or instrumentality of Government. We have referred to some of these factors and they may be summarised as under : Whether there is any financial assistance given by the State, and if so what is the magnitude of such assistance whether there is any other form of assistance, given by the State, and if so, whether it is of the usual kind or lt is extraordinary, whether there is any control of the management and policies of the corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and Government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency. Moreover even amongst these factors which we have described, no one single factor will yield a satisfactory answer to the question and the court will have to consider the cumulative effect of these various factors and arrive at its decision on the basis of a particularised inquiry into the facts and circumstances of each case.\"\n52. In the course of its judgment, the Court distinguished the case of Praga Tools Corporation as also the decision in S.L. Agarwal v. General Manager, Hindustan Steel Ltd 1969 Indlaw SC 36. in very much the same manner as we have done. So far as the case of Sabhajit Tewary v. Union of India and others 1975 Indlaw SC 106 is concerned, the Court said as follows :\n\"Lastly, we must refer to the decision in Sarabhajit Tewari v. Union of India & Ors. where the question was whether the Council of Scientific and Industrial Research was an 'authority' within the meaning of Art. 12. The Court no doubt took the view on the basis of facts relevant to the Constitution and functioning of the Council that it was not an 'authority', but we do not find any discussion in this case as to what are the features which must be present before a corporation can be regarded as an 'authority' within the meaning of Art. 12. This decision does not lay down any principle or test for the purpose of determining when a corporation can be said to be an 'authority'. If at all any test can be gleaned from the decision, it is whether the Corporation is \"really an agency of the Government\". The Court seemed to hold on the facts that the Council was not an agency of the Government and was, therefore, not an 'authority'.\"\n53. In Managing Director, Uttar Pradesh Warehousing Corpora tion and another v. Vinay Narayan Vajpayee, 1980 Indlaw SC 217 an employee of the corporation successfully challenged his dismissal from service. The appellant corporation was established under the Agricultural Produce (Development and Warehousing) Corporation Act, 1956, and was deemed to be a Warehousing Corporation for a State under the Warehousing Corporation Act, 1962. In his concurring judgment, Chinnappa Reddy, J.,said :\n\"I find it very hard indeed to discover any distinction, on principle between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the Government or a Corporation, set up under a statute or incorporated but wholly owned by the Government. It is self evident and trite to say that the function of the State has long since ceased to be confined to the preservation of the public peace, the exaction of taxes and the defence of its frontiers. It is now the function of the State to secure 'social, economic and political justice', to preserve 'liberty of thought, expression, belief, faith and worship', and to ensure 'equality of status and of opportunity\".\n54. In Ajay Hasia etc. v. Khalid Mujib Sehravardi and others etc.,1980 Indlaw SC 244 the Regional Engineering College which was established and administered and managed by a society registered under the Jammu and Kashmir Registration of Societies Act, 1898, was held to be \"the State\" within the meaning of Art. 12. In that case the Court said :\n\"It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure A of its own and it carries on its functions on business principles with a certain amount of autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government. It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government. Now it is obvious that if a corporation is an instrumentality or agency of the Government, it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity. If the Government acting through its officers is subject to certain constitutional limitations, it must follow a fortiorari that the Government acting through the instrumentality or agency of a corpora tion should equally be subject to the same limitations.\"\n55. After referring to various authorities, the court summarized the relevant tests which are to be gathered from the Inter- national Airport Authority of India's case as follows :\n\"(1) 'One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government.' G\n(2) 'Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.'\n(3) 'It may also be a relevant factor. . . whether the corporation enjoys monopoly status which is the State conferred or State protected.'\n(4) 'Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.'\n(5) 'If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government'.\"\n56. The right, title and interest of the Burmah Shell Oil Storage and Distributing Company of India Limited in relation to its undertakings in India were transferred to and vested in the Central Government under s. 3 of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976. Thereafter, u/s. 7 of the said Act, the right, title, interest and liabilities of the said company which had become vested in the Central Government, instead of continuing so to vest in it, were directed to be vested in a Government company, as defined by s. 617 of the Companies Act, 1956, namely, Bharat Petroleum. In Som Prakash Rekhi v. Union of India and another,1980 Indlaw SC 227 this Court held that Bharat Petroleum fell within the meaning of the expression \"the State\" used in Art. 12. The following passage  from the judgment in that case is instructive and requires to be reproduced :\n\"For purposes of the Companies Act, 1956, a government company has a distinct personality which cannot be confused with the State. Likewise, a statutory corporation constituted to carry on a commercial or other activity is for many purposes a distinct juristic entity not drowned in the sea of State, although, in substance, its existence may be but a projection of the State. What we wish to emphasise is that merely because a company or other legal person has functional and jural individuality for certain purposes and in certain areas of law, it does not necessarily follow that for the effective enforcement of fundamental rights under our constitutional scheme, we should not scan the real character of that entity; and if it is found to be a mere agent or surrogate of the State, in fact owned by the State, in truth controlled by the State and in effect an incarnation of the State, constitutional lawyers must not blink at these facts and frustrate the enforcement of fundamental rights despite the inclusive definition of Art. 12 that any authority controlled by the Government of India is itself State. Law has many dimensions and fundamental facts must govern the applicability of fundamental rights in a given situation.\"\n57. At the first blush it may appear that the case of S.S.Dhanoa v. Municipal Corporation, Delhi and others1981 Indlaw SC 248 runs counter to the trend set in the authorities cited above but on a closer scrutiny it turns out not to be so. The facts in that case were that the Cooperative Store Limited, which was a society registered under the Bombay Cooperative Societies Act, 1925, had established and was managing Super Bazars at different places including at Connaught Place in New Delhi. U/s. 23 of the said Act, the society was a body corporate by the name under which it was registered, with perpetual succession and a common seal. The Super Bazars were not owned by the Central Government but were owned and managed by the said society, though pursuant to an agreement executed between the said society and the Union of India, the Central Government had advanced a loan of rupees forty lakhs to the said society for establishing and managing Super Bazars and it also held more than ninety-seven per cent of the shares of the said society.\n58. The appellant who was a member of the Indian Administrative Service was sent on deputation as the General Manager of the Super Bazar at Connaught Place. He along with other officials of the Super Bazar were prosecuted under the Prevention of Food Adulteration Act, 1954. He raised a preliminary objection before the Metropolitan Magistrate, Delhi, before whom he was summoned to appear that no cognizance of the alleged offence could be taken by him for want of sanction u/s. 197 of the Code of Criminal Procedure, 1973. On his contention being rejected, he appealed to this Court. Under the said section 197, when any person who is or was inter alia a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court is to take cognizance of such offence except with the previous sanction in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union or of the Central Government. As stated in the opening paragraph of the judgment in the said case, the question before the Court was whether the appellant was a public servant within the meaning of Clause Twelfth of s. 21 of the Indian Penal Code for purposes of s. 197 of the Code of Criminal Procedure. The relevant provisions of Clause Twelfth of s. 21 are as follows:\n\"21. Public servant. - The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely : -\nTwelfth. - Every person -\n(a) in the service or pay of the Government or remunerated by fees or commission for the Performance of any public duty by the Government;\n(b) in the service or pay of a local authority, a corporation established by or under a General, Provincial or State Act or a Government company as defined in s. 617 of the Companies Act, 1956.\"\n59. The Court pointed out that Clause Twelfth did not use the words \"body corporate\" and, therefore, the question was whether the expression \"corporation\" contained therein taken in collocation of the words \"established by or under a Central or Provincial or State Act\" would bring within its sweep a cooperative society. The Court said :\n\"In our opinion, the expression 'corporation' must, in the context, mean a corporation created by the legislature and not a body or society brought into existence by an act of a group of individuals. A cooperative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.\"\n60. The Court then proceeded to point out that a corporation is an artificial being created by law, having a legal entity entirely separate and distinct from the individuals who compose it, with the capacity of continuous existence and succession. The Court held that corporations established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. An association of persons constituting themselves into a company under the Companies Act or a society under the Societies Registration Act owes its existence not to the act of Legislature but to acts of parties, though it may owe its status as a body corporate to an Act of Legislature. The observation of the Court in that case with respect to companies were not intended by it to apply to Government companies as defined in s. 617 of the Companies Act, 1956, for by the express terms of sub- cl. (b) of Clause Twelfth of s. 21 of the Indian Penal Code every person in the service or pay of a Government company as defined in s. 617 of the Companies Act, 1956, is a public servant. The second part of the question which the Court was called upon to decide in that case was whether the appellant can be said to be a person who was employed in connection with the affairs of the Union. The Court held that the Super Bazar was not an instrumentality of the State and, therefore, it could not be said that the appellant was employed in connection with the affairs of the Union within the meaning of the s. 197 of the Code of Criminal Procedure. This observation was again made with reference to the argument that the appellant was employed in connection with the affairs of the Union. He undoubtedly was not employed in connection with the affairs of the Union just as a person employed in a corporation is not and cannot be said to be holding a civil post under the Union or a State as held by this Court in S.L. Agarwal v. General Manager, Hindustan Steel Ltd 1969 Indlaw SC 36. In S.S. Dhanoa's case the Court was not called upon to decide and did not decide whether a Government company was an instrumentality or agency of the State for the purposes of Parts III and IV of the Constitution and thus, \"the State\" within the meaning of that expression as used in Art. 12 of the Constitution.\n61. The Indian Statistical Institute is a society registered under the Societies Registration Act, 1860, and is governed by the Indian Statistical Institute Act, 1959, under which its control completely vests in the Union of India. The society is also wholly financed by the Union of India. In B.S. Minhas v. Indian Statistical Institute and others1983 Indlaw SC 42 this Court, following Ajay Hasia's case, held that the said society was an \"authority\" within the meaning of Art. 12 and hence a writ petition u/art. 32 filed against it was competent and maintainable. In Manmohan Singh Jaitla v. Commissioner, Union Territory of Chandigarh and others1984 Indlaw SC 251 this Court once again following Ajay Hasia's case held that an aided school which received a Government grant of ninety-five per cent was an \"authority\" within the meaning of Art. 12 and, therefore, amenable to the writ jurisdiction both of this Court and the High Court.\n62. In Workmen of Hindustan Steel Ltd. and another v. Hindustan Steel Ltd. and others1984 Indlaw SC 249, 560 the Court held that the hindustan Steel Ltd. was a public sector undertaking and, therefore, was \"other authority\" within the meaning of that expression in Art. 12.\n63. In P.K. Ramachandra Iyer and others v. Union of India and others, 1983 Indlaw SC 248 once again following Ajay Hasia's case, the Court held that the Indian Council of Agricultural Research which was a society registered under the Societies Registration Act was an instrumentality of the State falling under the expression 'other authority' within the meaning of Art. 12. The said Council was wholly financed by the Government. Its budget was voted upon as part of the expenses incurred in the Ministry of Agriculture. The control of the Government of India permeated through all its activities. Since its inception, it was set up to carry out the recommendations of the Royal Commission on Agriculture. According to this Court, these facts were sufficient to make the said Council an instrumentality of the State.\n64. In A.L. Kalra v. Project and Equipment Corporation of India Ltd.,1984 INDLAW SC 289, 319, 325 the said corporation was held to be an instrumentality of the Central Government and hence falling within Art. 12. The Project and Equipment Corporation of India Ltd. was a wholly owned subsidiary company of the State Trading Corporation but was separated in 1976 and thereafter functioned as a Government of India undertaking. The finding that it was an instrumentality of the Central Government was, however, based upon concession made by the said corporation. In West Bengal State Electricity Board and others v. Desh Banahu Ghosh and others1985 Indlaw SC 439 the West Bengal State Electricity Board was held to be an instrumentality of the State.\n65. As pointed out earlier, the Corporation which is the First Appellant in these Appeals is not only a Government company as defined in s. 617 of the Companies Act, 1956, but is wholly owned by three Governments jointly. It is financed entirely by these three Governments and is completely under the control of the Central Government, and is managed by the Chairman and Board of Directors appointed by the Central Government and removable by it. In every respect it is thus a veil behind which the Central Government operates through the instrumentality of a Government company. The activities carried on by the Corporation are of vital national importance. The Fifth Five Year Plan 1974-79 states that the \"outlay of Rs.14.73 crores for the next two years includes development of Rajabagan Dockyard and operation of the Central Inland Water Transport Corporation and operation of river services on the Ganga.\" According to the Sixth Five Year Plan, 1980-85, inland water transport is recognized as the cheapest mode of transport for certain kinds of commodities provided the points of origin and destination are both located on the water front; that it is one of the most energy efficient modes of transport and has considerable potential in limited areas H which have a net-work of waterways. This Plan further emphasises that in the North-Eastern Region where other transport infrastructure is severely lacking and more expensive, inland water transport has an additional importance as an instrument of development. The said Plan goes on to state, \"In the Central Sector, an outlay of Rs.45 crores has been made for IWT. The most important programme relates to the investment proposal of Central Inland Water Transport Corporation (CIWTC)\". The Annual Plan 1984-85 of the Government of India Planning Commission states as follows in paragraph 10.33 :\n\"Inland Water Transport Against the approved outlay of Rs.12 crores in 1983-84, the revised expenditure in the Central Sector is estimated at Rs.10.40 crores. Bulk of the allocation was for the scheme of Central Inland Water Transport Corporation (CIWTC) for acquisition of vessels, development of Rajabagan Dockyard, creation of infrastructural facilities etc.\"\n66. The Annual Report 1984-85 of the Government of India, Ministry of Shipping and Transport, states in paragraph 6.1.2. as follows :\n\"The Inland Water Transport\nDirectorate is an attached office of this Ministry headed by a Chief Engineer-cum-Administrator. It has a complement of technical officers who are charged with the responsibility for planning of techno-economic studies on waterways and conducting hydrographic surveys. The Directorate has a Regional Office at Patna Two sub-offices of this Regional Office have also been sanctioned. One of the sub-offices has been set up at Gauhati and arrangements are under way to set up the other at Varanasi. The Ministry has also under its control a public sector under taking, namely, the Central Inland Water Transport Corporation which is the only major company in inland water transport in the country.\"\n67. As shown by the Statement of Objects and Reasons to the Legislative Bill, which when enacted became the National Waterway (Allahabad-Halda Stretch of the Ganga-Bhagirathi- Hooghly River) Act, 1982 (Act No. 49 of 1982), published in the Gazette of India Extraordinary, Part II, Section 2, dated May 6, 1982,  the Central Government had set up various committees in view of the advantages in the mode of inland water transport such as its low cost of transport, energy efficiency, generation of employment among weaker sections of the community and less pollution. These committees had recommended that the Central Government should declare certain waterways as national waterways and assume responsibility for their development. A beginning in respect of this matter was thus made by the enactment of the said Act No. 49 of 1982. Under the said Act, the said stretch was declared to be a national waterway and it was the responsibility of the Central Government to regulate and develop this national waterway and to secure its efficient utilization for shipping and navigation. In the Demands for Grant of the Ministry of Shipping and Transport 1985-86 additional provision was made for an overall increase in Budget Estimates 1985-86 mainly for equity participation/investment in the Corporation. The activities carried on by the Corporation were thus described in the said Demands for Grant :\n\"Central Inland Water Transport Corporation - CIWTC runs river services between Calcutta and Assam and Calcutta and Bangladesh. It undertakes movement of oil from Haldia to Budge- Budge/Paharpur for the Indian Oil Corporation. It also undertakes lighterage, stevedoring operations, ship building, ship repairing and other engineering services. To meet cash losses over riverine and engineering operations, construction of vessel and for purchase of machinery/equipment etc., budget estimates 1985-86 provide Rs. 13.50 crores for loan and Rs. 15.41 crores for equity investment in the Corporation.\"\n68. Last year Parliament passed the Inland Waterways Authority of India Act, 1985. This Act received the assent of the President on December 30, 1985. Under this act, an Authority called the Inland Waterways Authority of India is to be constituted and it is to be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power, subject to the provisions of the said Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and to sue and be sued by the said name. It is to consist of a Chairman, a Vice-Chairman and other persons not exceeding five. The Chairman, Vice-Chairman and the other persons are to be appointed by the Central Government. The term of office and other conditions of service of the members of the Authority are to be prescribed by the rules. The Central Government has also the power to remove any member of the Authority or to suspend him pending inquiry against him. Under the said act, the Authority is, in the discharge of its functions and duties, to be bound by such directions on questions of policy as the Central Government may give in writing to it from time to time. It may be mentioned that neither the said Act nor Act No.49 of 1982 appears to have been yet brought into force.\n69. There can thus be no doubt that the Corporation is a Government undertaking in the public sector. The Corporation itself has considered that it is a Government of India undertaking. The complete heading of the said Rules is \"Central Inland Water Transport Corporation Limited (A Government of India Undertaking) - Service, Discipline Appeal Rules, 1979\".\n70. In the face of so much evidence it is ridiculous to describe the Corporation as a trading company as the Appellants have attempted to do. What has been set out above is more than sufficient to show that the activities of the Corporation are of great importance to public interest, concern and welfare, and are activities of the nature carried on by a modern State and particularly a modern Welfare State.\n71. It was, however, submitted on behalf of the Appellants that even though the cases, out of those referred to above, upon which the Appellants had relied upon were either distinguishable or inapplicable for determining the question whether a Government company was \"the State\" or not, the case of A. L. Kalra v. Project and Equipment Corporation of India Ltd. 1984 Indlaw SC 289 relied upon by the Respondents was based upon a concession and there was thus no direct authority on the point in issue. It was further submitted that all the other cases in which various bodies were held to be \"the State\" under Art. 12 were those which concerned either a statutory authority or a corporation established by a statute.\n72. It is true that the decision in A.L. Kalra v. Project and Equipment Corporation of India Ltd. was based upon a concession made by the respondent corporation but the case of Workmen of Hindustan Steel Ltd. and another v. Hindustan Steel Ltd. and others 1984 Indlaw SC 249 was that of a Government company for Hindustan Steel Limited is a Government company as defined by s. 617 of the Companies Act as pointed out in Gurugobinda Basu v. Sankari Prasad Ghosal and others, 1963 Indlaw SC 163. The case of the Workmen of Hindustan Steel Ltd. related to a question whether a disciplinary inquiry was validly dispensed with under Standing Order No. 32 of the Hindustan Steel Limited.\nUnder that Standing Order, where a workman had been convicted for a criminal offence in a court of law or where the General Manager was satisfied, for reasons to be recorded in writing, that it was inexpedient or against the interest of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure for holding a disciplinary inquiry laid down in Standing Order No. 31. The order of removal from service of the concerned workman did not set out any reason for the satisfaction arrived at by the disciplinary authority but merely stated that such authority was satisfied that it was no longer expedient to employ the particular workman any further and the order then proceeded to remove him from the service of the company. In these circumstances, this Court held that the order of removal from service was bad in law. In the course of its judgment, this Court observed as follows  :\n\"It is time for such a public sector undertaking as Hindustan Steel Ltd. to recast S.O. 32 and to bring it in tune with the philosophy of the Constitution failing which it being other authority and therefore a State under Art. 12 in an appropriate proceeding, the vires of S.O. 32 will have to be examined. It is not necessary to do so in the present case because even on the terms of H S.O. 32 the order made by the General Manager is unsustainable.\"\n73. The only reason given by the Court for holding that Hindustan Steel Limited was \"other authority\" and, therefore, \"the State\" under Art. 12 was the fact that it was a public sector undertaking. In the entire judgment, there is no other discussion on this point except what is stated in the passage quoted above. Thus, to the extent that there is no authority of this Court in which the question, namely, whether a Government company is \"the State\" within the meaning of Art. 12 has been discussed and decided, the above submission is correct.\n74. Does this, therefore, make any difference? There is a basic fallacy vitiating the above submission. That fallacy lies in the assumption which that submission makes that merely because a point has not fallen for decision by the Court, it should, therefore, not be decided at any time. Were this assumption true, the law would have remained static and would have never advanced. The whole process of judicial interpretation lies in extending or applying by analogy the ratio decidendi of an earlier case to a subsequent case which differs from it in certain essentials, so as to make the principle laid down in the earlier case fit in with the new set of circumstances. The sequitur of the above assumption would be that the Court should tell the suitor that there is no precedent governing his case and, therefore, it cannot give him any relief. This would be to do gross injustice. Had this not been done, the law would have never advanced. For instance, had Rylands v. Fletcher  not been decided in the way in which it was, an owner or occupier of land could with impunity have brought and kept on his land anything likely to do mischief if it escaped and would have himself escaped all liability for the damage caused by such escape if he had not been negligent. Similarly, but for Donoghue v. Stevention manufacturers would have been immune from liability to the ultimate consumers and users of their products.\n75. What is the position before us? Is it only one case decided on a concession and another based upon an assumption that a Government Company is \"the State\" under Article 12? That is the position in fact but not in substance. As we have seen, authorities constituted under, and corporations established by, statutes have been held to be instrumentalities and agencies of the Government in a long catena of decisions of this Court. The observations in several of these decisions, which have been emphasised by us in the passages extracted from the judgments in those cases, are general in their nature and take in their sweep all instrumentalities and agencies of the State, whatever be the form which such instrumentality or agency may have assumed. Particularly relevant in this connection are the observations of Mathew, J., in Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another1975 Indlaw SC 107, of Bhagwati, J., in the International Airport Authority's case and Ajay Hasia's case and of Chinnappa Reddy, J., in Uttar Pradesh Warehousing Corporations case.\nIf there is an instrumentality or agency of the state which has assumed the garb of a Government company as defined in s. 617 of the Companies Act, it does not follow that it thereby ceases to be an instrumentality or agency of the State. For the purposes of Art. 12 one must necessarily see through the corporate veil to ascertain whether behind that veil is the face of an instrumentality or agency of the State. The Corporation, which is the Appellant in these two Appeals before us, squarely falls within these observations and it also satisfies the various tests which have been laid down. Merely because it has so far not the monopoly of inland water transportation is not sufficient to divest it of its character of an instrumentality or agency of the State. It is nothing but the Government operating behind a corporate veil, carrying out a governmental activity and governmental functions of vital public importance. mere can thus be no doubt that the Corporation is \"the State\" within the meaning of Art. 12 of the Constitution.\n76. We now turn to the second question which falls for determination in these Appeals, namely, whether an unconscionable term in a contract of employment entered into with the Corporation, which is \"the State\" within the meaning of the expression in Article 12, is void as being violative of Art. 14. What is challenged under this head is cl. (i) of Rule 9 of the said Rules. This challenge levelled by the Respondent in each of these two Appeals succeeded in the High Court.\n77. The first point which falls for consideration on this part of the case is whether Rule 9(i) is unconscionable. In order to ascertain this, we must first examine the facts leading to the making of the said Rules and then the setting in which Rule 9(i) occurs. To recapitulate briefly, each of the contesting Respondents was in the service of the Rivers Steam Navigation Company Limited. Their services were taken over by the Corporation after the Scheme of Arrangement was sanctioned by the Calcutta High Court. Under the said Scheme of Arrangement if their services had not been taken over, they would have been entitled to compensation payable to them, either under the Industrial Disputes Act, 1947, or otherwise legally admissible, by the said company, and the Government of India was to provide to the said company the amount of such compensation. Under the letters of appointment issued to these Respondents, the age of superannuation was fifty-five.\n78. Thereafter, Service Rules were framed by the Corporation in 1970 which were replaced in 1979 by new rules namely, the said Rules. The said Rules did not apply to employees covered by the Industrial Employment (Standing Orders) Act, 1946, that is, to workmen, or to those in respect of whom the Board of Directors had issued separate orders. At all relevant times, these Respondents were employed mainly in a managerial capacity. No separate orders were issued by the Board of Directors in their case. These Respondents were, therefore, admittedly governed by the said Rules. Under Rule 10 of the said Rules, they were to retire from the service of the Corporation on completion of the age of fifty-eight years though in exceptional cases and in the interest of the Corporation an extension might have been granted to them with the prior approval of the Chairman-cum-Managing Director and the Board of Directors of the Corporation. me said Rules, however, provide four different modes in which the services of the Respondents could have been terminated earlier than the age of superannuation, namely, the completion of the age of fifty-eight years. These modes are those provided in Rule 9(i), Rule 9(ii), sub-cl. (iv) of cl. (b) of Rule 36 read with Rule 38 and Rule 37. Of these four modes, the first two apply to permanent employees and the other two apply to all employees. Rule 6 classifies employees as either Permanent or Probationary or Temporary or Casual or Trainee. Cl. (i) of Rule 6 defines the expression \"Permanent employee\" as meaning \"an employee whose services have been confirmed in writing according to the Recruitment and Promotion Rules\".\nUnder Rule 9(i) which has been extracted above, the employment of a permanent employee is to be subject to termination on three months' notice in writing on either side. If the Corporation gives such a notice of termination, it may pay to the employee the equivalent of three months' basic pay and dearness allowance, if any, in lieu of notice, and where a permanent employee terminates the employment without giving due notice, the Corporation may deduct a like amount from the amount due or payable to the employee. Under Rule 11, an employee who wishes to leave the service of the Corporation by resigning therefrom, is to give to the Corporation the same notice as the Corporation is required to give to him under Rule 9, that is, a three months' notice in writing. Under rule 9(ii), the services of a permanent employee can be terminated on the ground of \"Services no longer required in the interest of the Company\" (that is, the Corporation). In such a case, a permanent employee whose service is terminated under this clause is to be paid fifteen days' basic pay and dearness allowance for each completed year of continuous service in the Corporation and he is also to be entitled to encashment of leave to his credit. Rule 36 prescribes the penalties which can be imposed, \"for good and sufficient reasons and as hereinafter provided\" in the said Rules, on an employee for his misconduct. Cl. (a) of Rule 36 sets out the minor penalties and cl. (b) of Rule 36 sets out the major penalties. Under sub-cl. (iv) of cl. (b) of Rule 36, dismissal from service is a major penalty. None of the major penalties including the penalty of dismissal is to be imposed except after holding an inquiry in accordance with the provisions of Rule 38 and until after the inquiring authority, where it is not itself the disciplinary authority, has forwarded to the disciplinary authority the records of the inquiry together with its report, and the disciplinary authority has taken its decision as provided in Rule 39. Rule 40 prescribes the procedure to be followed in imposing minor penalties. Under Rule 43, notwithstanding anything contained in Rules 38, 39 or 40, the disciplinary authority may dispense with the disciplinary inquiry in the three cases set out in Rule 43 and impose upon an employee either a major or minor penalty. We have reproduced Rule 43 earlier. Rule 45 provides for an appeal against an order imposing any of the penalties specified in Rule 36. Under Rule 37, the Corporation has the right to terminate the service of any employee at any time without any notice if the employee is found guilty of any insubordination, intemperance or other misconduct or of any breach of any rules pertaining to service or conduct or non- performance of his duties. The said Rules do not require that any disciplinary inquiry should be held before terminating an employee's service under rule 37.\n79. Each of the contesting Respondents in these Appeals was asked to submit his written explanation to the various allegations made against him. Ganguly, the First Respondent in Civil Appeal No. 4412 of 1985, gave a detailed reply to the said show cause notice. Sengupta, the First Respondent in Civil Appeal No. 4413 of 1985, denied the charges made against him and asked for inspection of the documents and copies of statements of witnesses mentioned in the charge- sheet served upon him to enable him to file his written statement. Without holding any inquiry into the allegations made against them, the services of each of them were terminated by the said letter dated February 26, 1983, under Rule 9(i). The action was not taken either under Rule 36 or Rule 37 nor was either of them dismissed after applying to his case Rule 43 and dispensing with he disciplinary inquiry.\n80. It was submitted on behalf of the Appellants that there was nothing unconscionable about Rule 9(i), that Rule 9(i) was not a nudum pactum for it was supported by mutuality inasmuch as it conferred an equal right upon both parties to terminate the contract of employment, that the grounds which render an agreement void and unenforceable are set out in the Indian Contract Act, 1872 (Act No. IX of 1872), that unconscionability was not mentioned in the Indian Contract Act ,as one of the grounds which invalidates an agreement, that the power conferred by Rule 9(i) was necessary for the proper functioning of the administration of the Corporation, that in the case of the Respondents this power was exercised by the Chairman-cum-Managing Director of the Corporation, and that a person holding the highest office in the Corporation was not likely to abuse the power conferred by Rule 9(i).\n81. The submissions of the contesting Respondents, on the other hand, were that the parties did not stand on an equal S footing and did not enjoy the same bargaining power, that the contract contained in the service rules was one imposed upon A these Respondents, that the power conferred by rule 9(i) was arbitrary and uncanalized as it did not set out any guidelines for the exercise of that power and that even assuming it may not be void as a contract; in any event it offended Art. 14 as it conferred an absolute and arbitrary power upon the Corporation.\nAs the question before us is of the validity of cl. (i) of Rule 9, we will refrain from expressing any opinion with respect to the validity of cl. (ii) of Rule 9 or Rule 37 or 40 but will confine ourselves only to Rule 9(i).\n82. The said Rule constitute a part of the contract of employment between the Corporation and its employees to whom the said Rules apply, and they thus form a part of the contract of employment between the Corporation and each of the two contesting Respondents. The validity of Rule 9(i) would, therefore, first fall to be tested by the principles of the law of contracts.\n83. U/s. 19 of the Indian Contract Act, when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. It is not the case of either of the contesting Respondents that there was any coercion brought to bear upon him or that any fraud or misrepresentation had been practised upon him. Under section 19A, when consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused and the court may set aside any such contract either absolutely or if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the court may seem just. Sub-s. (1) of s. 16 defines \"Undue influence\" as follows :\n\"16. 'Undue influence' defined.\n(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.\"\nThe material provisions of sub-s. (2) of s. 16 are as follows :\n\"(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another -\n(a) where he holds a real or apparent authority over the other.\"\n84. We need not trouble ourselves with the other sections of the Indian Contract Act except ss. 23 and 24. S. 23 states that the consideration or object of an agreement is lawful unless inter alia the Court regards it as opposed to public policy. This section further provides that every agreement of which the object or consideration is unlawful is void. Under section 24, if any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object is unlawful, the agreement is void. The agreement is, however, not always void in its entirety for it is well settled that if several distinct promises are made for one and the same lawful consideration, and one or more of them be such as the law will not enforce, that will not of itself prevent the rest from being enforceable. The general rule was stated by Willes, J., in Pickering v. Ilfracombe Ry. Co.   as follows :\n\"The general rule is that, where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good\".\n85. Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. No case of the type before us appears to have fallen for decision under the law of contracts before any court in India nor has any case on all fours of a court in any other country been pointed out to us. The word \"unconscionable\" is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288, when used with reference to actions etc. as \"showing no regard for conscience; irreconcilable with what is right or reasonable\". An unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable.\n86. Although certain types of contracts were illegal or void, as the case may be, at Common Law, for instance, those contrary to public policy or to commit a legal wrong such as a crime or a tort, the general rule was of freedom of contract. This rule was given full play in the nineteenth century on the ground that the parties were the best judges of their own interests, and if they freely and voluntarily entered into a contract the only function of the court was to enforce it. It was considered immaterial that one party was economically in a stronger bargaining position than the other; and if such a party introduced qualifications and exceptions to his liability in clauses which are today known as \"exemption clauses\" and the other party accepted them, then full effect would be given to what the parties agreed. Equity, however, interfered in many cases of harsh or unconscionable bargains, such as, in the law relating to penalties, forfeitures and mortgages. It also interfered to asset aside harsh or unconscionable contracts for salvage services rendered to a vessel in distress, or unconscionable contracts with expectant heirs in which a person, usually a money-lender, gave ready cash to the heir in return for the property which he expects to inherit and thus to get such property at a gross undervalue. It also interfered with harsh or unconscionable contracts entered into with poor and ignorant persons who had not received independent advice\n87. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another.\n88. In this connection, it is useful to note what Chitty has to say about the old ideas of freedom of contract in modern times. The relevant passages are to be found in Chitty on Contracts, Twenty-fifth Edition, Volume I, in paragraph 4, and are as follows :\n\"These ideas have to a large extent lost their appeal today. 'Freedom of contract,' it has been said, 'is a reasonable social ideal only to the - extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large.' Freedom of contract is of little value when one party has no alternative between accepting a set of terms proposed by the other or doing without the goods or services offered. Many contracts entered into by public utility undertakings and others take the form of a set of terms fixed in advance by one party and not open to discussion by the other. These are called 'contracts d'adhesion' by French lawyers. Traders frequently contract, not on individually negotiated terms, but on those contained in a standard form of contract settled by a trade association. And the terms of an employee's contract of employment may be determined by agreement between his trade union and his employer, or by a statutory scheme of '' employment. Such transactions are nevertheless ? contracts notwithstanding that freedom of contract is to a great extent lacking.\nWhere freedom of contract is absent, the disadvantages to consumers or members of the public have to some extent been offset by administrative procedures for consultation, and by legislation. Many statutes introduce terms into contracts which the parties are forbidden to exclude, or declare that certain provisions in a contract shall be void. And the courts have developed a number of devices for refusing to implement exemption clauses imposed by the economically stronger party on the weaker, although they have not recognised in themselves any general power (except by statute) to declare broadly that an exemption clause will not be enforced unless it is reasonable. Again, more recently, certain of the judges appear to have recognised the possibility of relief from contractual obligations on the ground of 'inequality of bargaining power.\"\nWhat the French call \"contracts d'adhesion', the American call A \"adhesion contracts\" or \"contracts of adhesion.\" An \"adhesion contract\" is defined in Black's Law Dictionary, Fifth Edition,  as follows :\n\"'Adhesion contract'. Standardized contract form offered to consumers of goods and services on essentially 'take it or leave it' basis without affording consumer realistic opportunity to bargain and under such conditions that consumer cannot obtain desired product or services except by acquiescing in form contract. Distinctive feature of adhesion contract is that weaker party has no realistic choice as to its terms. Not every such contract is unconscionable.\"\n89. The position under the American Law is stated in \"Reinstatement of the Law - Second\" as adopted and promulgated by the American Law Institute, Volume II xx which deals with the law of contracts, in s. 208  as follows :\n\"$ 208. Unconscionable Contract or Tern\nIf a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.\"\n90. In the Comments given under that section it is stated :\n\"Like the obligation of good faith and fair dealing (S 205), the policy against unconscionable contracts or terms applies to a wide variety of types of conduct. The determination that a contract or term is or is not unconscionable is made in the light of its setting, purpose and effect. Relevant factors include weaknesses in the contracting process like those involved in more specific rules as to contractual capacity, fraud and other invalidating causes; the policy also overlaps with rules which render particular bargains or terms unenforceable on grounds of public policy. Policing against unconscionable contracts or terms has sometimes been accomplished by adverse construction of language, by manipulation of the rules of offer and acceptance or by determinations that the clause is contrary to public policy or to the dominant purpose of the contract'. Uniform Commercial Code $ 2-302 Comment 1. . . . A bargain is not unconscionable merely because the parties to it are unequal in bargaining position, nor even because the inequality results in an allocation of risks to the weaker party. But gross inequality of bargaining power, together with terms unreasonably favourable to the stronger party, may confirm indications that the transaction involved elements of deception or compulsion, or may show that the weaker party had no meaningful choice, no real alternative, or did not in fact assent or appear to assent to the unfair terms.\"\n91. There is a statute in the United States called the Universal Commercial Code which is applicable to contracts relating to sales of goods. Though this statutes is inapplicable to contracts not involving sales of goods, it has proved very influential in, what are called in the United States, L \"non-sales\" cases. It has many times been used either by analogy or because it was felt to embody a general accepted social attitude of fairness going beyond its statutory application to sales of goods. In the Reporter's Note to the said section 208, it is stated :\n\"It is to be emphasized that a contract of adhesion is not unconscionable per se, and that all unconscionable contracts are not contracts of adhesion. Nonetheless, the more standardized the agreement and the less a party may bargain meaningfully, the more susceptible the contract or a term will be to a claim of unconscionability.\"\nThe position has been thus summed up by John R. Pedan in \"The Law of Unjust Contracts\" published by Butterworths in 1982, :\n\"Unconscionability represents the end of a A cycle commencing with the Aristotelian concept of justice and the Roman law iaesio enormis, which in turn formed the basis for the medieval church's concept of a just price and condemnation of usury. These philosophies permeated the exercise, during the seventeenth and eighteenth centuries, of the Chancery court's discretionary powers under which it upset all kinds of unfair transactions. Subse quently the movement towards economic individualism in the nineteenth century hardened the exercise of these powers by emphasizing the freedom of the parties to make their own contract. While the principle of pacta sunt servanda held dominance, the consensual theory still recognized exceptions where one party was overborne by a fiduciary, or entered a contract under duress or as the result of fraud. However, these exceptions were limited and had to be strictly proved. It is suggested that the judicial and legislative trend during the last 30 years in both civil and common law jurisdictions has almost brought the wheel full circle. Both courts and parliaments have provided greater protection for weaker parties from harsh contracts. In several jurisdictions this included a general power to grant relief from unconscionable contracts, thereby providing a launching point from which the courts have the opportunity to develop a modern doctrine of unconscionability. American decisions on art. 2.302 of the UCC have already gone some distance into this new arena\nThe expression \"laesio enormis\" used in the above passage refers to \"laesio ultra dimidium vel enormis\" which in Roman law meant the injury sustained by one of the parties to an onerous contract when he had been overreached by the other to the extent of more than one-half of the value of the subject-matter, as for example, when a vendor had not received half the value of property sold, or the purchaser had paid more then double value. The maxim \"pacta sunt servanda\" referred to in the above passage means \"contracts are to be kept\"\n92. It would appear from certain recent English cases that the courts in that country have also begun to recognize the possibility of an unconscionable bargain which could be brought about by economic duress even between parties who may not in economic terms be situate differently Refer occidental worldwide Investment Corpn. v. Skibs A/S Avanti, North ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd., Pao On v. Lau Yin Long  and Universe Tankships of Monrovia v. International Transport Workers Federation, reversed  and the commentary on these cases in Chitty on Contracts, Twenty-fifth Edition, Volume I, paragraph 486.\n93. Another jurisprudential concept of comparatively modern origin which has affected the law of contracts is the theory of \"distributive justice\". According to this doctrine, distributive fairness and justice in the possession of wealth and property can be achieved not only by taxation but also by regulatory control of private and contractual transactions even though this might involve some sacrifice of individual liberty. In Lingappa Pochanna Appelvar v. State of Maharashtra & Anr.1984 Indlaw SC 301 this Court, while upholding the Constitutionality of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, said :\n\"The present legislation is a typical illustration of the concept of distributive justice, as modern jurisprudence know it. Legislators, Judges and administrators are now familiar with the concept of distributive justice. Our Constitution permits and even directs the State to administer what may be termed 'distributive justice'. The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle : 'From each according to his capacity, to each according to his needs'. Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct A regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargains should be restored their property. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements.\"\n94. When our Constitution states that it is being enacted in order to give to all the citizens of India \"JUSTICE, social, economic and political\", when cl. (1) of Art. 38 of the Constitution directs the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which social, economic and political justice shall inform all the institutions of the national life, when cl. (2) of Art. 38 directs the State, in particular, to minimize the inequalities in income, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations, and when Art. 39 directs the State that it shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment and that there should be equal pay for equal work for both men and women, it is the doctrine of distributive justice which is speaking through these words of the Constitution.\n95. Yet another theory which has made its emergence in recent years in the sphere of the law of contracts is the test of reasonableness or fairness of a clause in a contract where there is inequality of bargaining power. Lord Denning, M.R., appears to have been the propounder, and perhaps the originator - at least in England, of this theory. In Gillespie Brothers & Co. Ltd. v. Roy Bowles Transport Ltd. where the question was whether an indemnity clause in a contract, on its true construction, relieved the indemnifier from liability arising to the indemnified from his own negligence, Lord Denning said:\n\"The time may come when this process of 'construing' the contract can be pursued no further. The words are too clear to permit of it. Are the courts then powerless? Are they to permit the party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreasonably, as to be unconscionable? When it gets to this point, I would say, as I said many years ago :\n'there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused' : John Lee & Son (Grantham) Ltd. v. Railway Executive. It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so.\"\n96. In the above case the Court of Appeal negatived the defence of the indemnifier that the indemnity clause did not cover the negligence of the indemnified. It was in Lloyds Bank Ltd. v. Bundy  that Lord Denning first clearly enunciated his theory of \"inequality of bargaining power\". He began his discussion on this part of the case by stating  :\n\"There are cases in our books in which the courts will set aside a contract. Or a transfer of property, when the parties have not met on equal terms, when the one is so strong in bargaining power and the other so weak that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall. Hitherto those exceptional cases have been treated each as a separate category in itself. But I think the time has come when we should seek to find a principle to unite them. I put on one side contracts or transactions which are voidable for fraud or misrepresentation or mistake. All those are governed by settled principles. I go only to those where there has been inequality of bargaining power such as to merit and intervention of the court.\"\n97. He then referred to various categories of cases and ultimately deduced therefrom a general principle in these words  :\n\"Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on 'inequality of bargaining power'. By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word 'undue' I do not mean to suggest that the principle depends on proof of any wrongdoing. The one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconsciou6 of the distre66 he is bringing to the other. I have also avoided any reference to the will of the one being 'dominated' or 'overcome' by the other. One who is in extreme need may knowingly consent to a most improvident bargain, solely to relieve the straits in which he finds hlmself. Again, I do not mean to suggest that every transaction is saved by independent advice. But the absence of it may be fatal. With these explanations, I hope this principle will be found to reconcile the cases.\"\n98. Though the House of Lords does not yet appear to have unanimously accepted this theory, the observations of Lord Diplock in A. Schroeder Nusic Publishing Co. Ltd. v. Macaulay (Formerely Instone) are a clear pointer towards this direction. In that case a song writer had entered into an agreement with a music publisher in the standard form whereby the publishers engaged the song writer's exclusive services during the term of the agreement, which was five H years. Under the said agreement, the song writer assigned to the publisher the full copyright for the whole world in his musical compositions during the said term. By another term of the said agreement, if the total royalties during the term of the agreement exceeded Rs. 5,000 the agreement was to stand automatically extended by a further period of five years. Under the said agreement, the publisher could determine the agreement at any time by one month's written notice but no corresponding right was given to the song writer.\nFurther, while the publisher had the right to assign the agreement, the song writer agreed not to assign his rights without the publisher's prior written consent. The song writer brought an action claiming, inter alia, a declaration that the agreement was contrary to public policy and void. Plowman, J., who heard the action granted the declaration which was sought and the Court of Appeal affirmed his judgment. An appeal filed by the publishers against the judgment of the Court of Appeal was dismissed by the House of Lords. The Law Lords held that the said agreement was void as it was in restraint of trade and thus contrary to public policy. In his speech Lord Diplock however, outlined the theory of reasonableness or fairness of a bargain. The following observations of his on this part of the case require to be reproduced in extenso  :\n\"My Lords, the contract under consideration in this appeal is one whereby the respondent accepted restrictions upon the way in which he would exploit his earning power as a song writer for the next ten years. Because this can be classified as a contract in restraint of trade the restrictions that the respondent accepted fell within one of those limited categories of contractual promises in respect of which the courts still retain the power to relieve the promisor of his legal duty to fulfil them. In order to determine whether this case is one in which that power ought to be exercised, what your Lordships have in fact been doing has been to assess the relative bargaining power of the publisher and the song writer at the time the contract was made and to decide whether the publisher had used his superior bargaining power to exact from the song writer promises that were unfairly onerous to him. Your Lordships have not A been concerned to inquire whether the public have in fact been deprived of the fruit of the song writer's talents by reason of the restrictions, nor to assess the likelihood that they would be so deprived in the future if the contract were permitted to run its full course.\nIt is, in my view, salutary to acknowledge that in refusing to enforce provisions of a contract whereby one party agrees for the benefit of the other party to exploit or to refrain from exploiting his own earning power, the public policy which the court is implementing is not some 19th century economic theory about the benefit to the general public of freedom of trade, but the protection of those whose bargaining power is weak against being forced by those whose bargaining power is stronger to enter into bargains that are unconscionable. Under the influence of Bentham and of laissez-faire the courts in the 19th century abandoned the practice of applying the public policy against unconscionable bargains to contracts generally, as they had formerely done to any contract considered to be usurious; but the policy survived in its application to penalty clauses and to relief against forfeiture and also to the special category of contracts in restraint of trade. If one looks at the reasoning of 19th century judges in cases about contracts in restraint of trade one finds lip service paid to current economic theories, but if one looks at what they said in the light of what they did, one finds that they struck down a bargain if they thought it was unconscionable as between the parties to it and upheld it if they thought that it was not.\nSo I would hold that the question to be answered as respects a contract in restraint of trade of the kind with which this appeal is concerned is : \"Was the bargain fair?\" The test of fairness is, no doubt, whether the restrictions are both reasonably necessary for the protection of the legitimate interests of the promisee and commensurate with the benefits secured to the promisor under the contract. For the purpose of this test all the provisions of the contract must be taken into consideration.\"\n99. Lord Diplock then proceeded to point out that there are two kinds of standard forms of contracts. The first is of contracts which contain standard clauses which \"have been settled over the years by negotiation by representatives of the commercial interests involved and have been widely adopted because experience has shown that they facilitate the conduct of trade\". He then proceeded to state, \"If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable.\" Referring to the other kind of standard form of contract Lord Diplock said  :\n\"The same presumption, however, does not apply to the other kind of standard form of contract. This is of comparatively modern origin. It is the result of the concentration of particular kinds of business in relatively few hands. The ticket cases in the 19th century provide what are probably the first examples. The terms of this kind of standard form of contract have not been the subject of negotiation between the parties to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services, enables him to say: 'If you want these goods or services at all, these are the only terms on which they are obtainable. Take it or leave it'. To be in a position to adopt this attitude towards a party desirous of entering into a contract to obtain goods of services provides a classic instance of superior bargaining power.\"\nThe observations of Lord Denning, M.R., in Levison and another v. Patent Steam Carpet Co. Ltd. are also useful and require to be quoted. These observations are as follows  :\n\" In such circumstances as here the Law Commission in 1975 recommended that a term which exempts the stronger party from his ordinary common law liability should not be given effect except when it is reasonable: see The Law Commission and the Scottish Law Commission Report, Exemption Clauses, Second Report (1975) (August 5, 1975), Law Com. No. 69 (H. C. 605), pp. 62, 174; and there is a bill now before Parliament which gives effect to the test of reasonableness. This is a gratifying piece of law reform: but I do not think we need wait for that bill to be passed into law. You never know what may happen to a bill. meanwhile the common law has its own principles ready to hand. In Gillespie Bros. & Co. Ltd. v. Roy Bowles Transport Ltd., 416, I suggested that an exemption or limitation clause should not be given effect if it was unreasonable, or if it would be unreasonable to s apply it in the circumstances of the case. I see no reason why this should not be applied today, at any rate in contracts in standard forms where there is inequality of bargaining power.\"\n100. The Bill referred to by Lord Denning in the above passage, when enacted, became the Unfair Contract Terms Act, 1977. This statute does not apply to all contracts but only to certain classes of them. It also does not apply to contracts entered into before the date on which it came into force, namely, February 1, 1978; but subject to this it applies to liability for any loss or damage which is suffered on or after that date. It strikes at clauses excluding or restricting liability in certain classes of contracts and torts and introduces in respect of clauses of this type the test of reasonableness and prescribes the guidelines for determining their reasonableness. The detailed provisions of this statute do not concern us but they are worth a study.\n101. In photo Production Ltd. v. Securicor Transport Ltd. a case before the Unfair Contract Terms Act, 1977, was enacted, the House of Lords upheld an exemption clause in a contract on the defendants' printed form containing standard conditions. The decision appears to proceed on the ground that the parties were businessmen and did not possess unequal bargaining power. The House of Lords did not in that case reject the test of reasonableness or fairness of a clause in a contract where the parties are not equal in bargaining position. On the contrary, the speeches of Lord Wilberforce, Lord Diplock and Lord Scarman would seem to show that the house of Lords in a fit case would accept that test. Lord Wilberforce in his speech, after referring to the Unfair Contract Terms Act, 1977, said  :\n\"This Act applies to consumer contracts and those based on standard terms and enables exception clauses to be applied with regard to what is just and reasonable. It is significant that Parliament refrained from legislating over the whole field of contract. After this Act, in commercial matters generally, when the parties are not of unequal bargaining power, and when risks are normally borne by insurance, not only is the case for judicial intervention undemonstrated, but there is everything to be said, and this seems to have been Parliament's intention, for leaving the parties free to apportion the risks as they think fit and for respecting their decisions.\"\nLord Diplock said :\n\"Since the obligations implied by law in a commercial contract are those which, by judicial consensus over the years or by Parliament in passing a statute, have been regarded as obligations which a reasonable business an would realise that he was accepting when he entered into a contract of a particular kind, the court's view of the reasonableness of any departure from the implied obligations which would be involved in construing the express words of an exclusion clause in one sense that they are capable of bearing rather than another, is a relevant consideration in deciding what meaning the words were intended by the parties to bear.\"\n102. Lord Scarman, while agreeing with Lord Wilberforce, described  the action out of which the appeal before the I House had arisen as \"a commercial dispute between parties well able to look after themselves\" and then added, \"In such a situation what the parties agreed (expressly or impliedly) is what matters; and the duty of the courts is to construe their contract according to its tenor.\"\n103. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at 1 least in certain areas of the law of contracts, that there can i be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, i s. 138(2) of the German Civil Code provides that a , transaction is void \"when a person\" exploits \"the distressed q situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages . . . which are obviously disproportionate to the performance given in return.\" The position according to the French law is very much the same.\n104. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to \"uphold the Constitution and the laws\". the Constitution was enacted to secure to all the citizens of this country social and economic justice. Art. 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws.\nThe principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art. 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them.\n105. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.\n106. It is not as if our civil courts have no power under the existing law. U/s. 31(1) of the Specific Relief Act, 1963 (Act No. 47 of 1963), any person against whom an instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the court may in its discretion, so adjudge it and order it to be delivered up and cancelled. B\n107. Is a contract of the type mentioned above to be adjudged voidable or void? If it was induced by undue influence, then under section 19A of the Indian Contract Act, it would be voidable. It is, however, rarely that contracts of the types to which the principle formulated by us above applies are induced by undue influence as defined by s. 16(1) of the Indian Contract Act, even though at times they are between parties one of whom holds a real or apparent authority over the other. In the vast majority of cases, however, such contracts are entered into by the weaker party under pressure of circumstances, generally economic, which results in inequality of bargaining power.\nSuch contracts will not fall within the four corners of the definition of \"undue influence\" given in s. 16(1). Further, the majority of such contracts are in a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms meant for those individuals alone, Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable, are injurious to the public interest. To say that such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no court should encourage and would also not be in the public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void. While the law of contracts in England is mostly judge-made, the law of contracts in India is enacted in a statute, namely, the Indian Contract Act, 1872. In order that such a contract should be void, it must fall under one of the relevant sections of the Indian Contract Act. The only relevant provision in the Indian Contract Act which can apply is s. 23 when it states that \"The consideration or object of an agreement is lawful, unless . . . the court regards it as . . . Opposed to public policy.\"\n108. The Indian Contract Act does not define the expression \"public policy\" or \"opposed to public policy\". From the very nature of things, the expressions \"public policy\", \"opposed to public policy\" or \"contrary to public policy\" are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy.\n109. There are two schools of thought - \"the narrow view\" school and \"the broad view\" school. According to the former, courts can not create new heads of public policy whereas the latter countenances judicial law-making in this area. The adherents of \"the narrow view\" school would not invalidate a contract on the ground of public policy unless that particular ground had been well-established by authorities. Hardly ever has the voice of the timorous spoken more clearly and loudly than in these words of Lord Davey in Janson v. Uriefontein Consolidated Mines Limited  , 500 \"Public policy is always an unsafe and treacherous ground for legal decision.\" That was in the year 1902. Seventy-eight years earlier, & Burros, J., in Richardson v. Mellish , 266, described public policy as \"a very unruly horse, and when once you get astride it you never know where it will carry you.\" The Master of the Rolls, Lord Denning, however, was not a-man to shy away from unmanageable horses and in words which conjure up before our eyes the picture of the young Alexander the Great taming Bucephalus, he said in Enderyby Town Football Club Ltd. v. Football Association Ltd.,\n\"With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles.\" Had the timorous always held the field, not only the doctrine of public policy but even the Common Law or the principles of Equity would never have evolved. Sir William Holdsworth in his \"History of English Law\", Volume III,  has said :\n\"In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to supress practices which, under ever new disguises, seek to weaken or negative them.\"\n110. It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which D covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution.\n111. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay , however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani and others v. Prahlad Rai and others,1959 Indlaw SC 220 reversing the High Court and restoring the decree passed by the trial court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said :\n\"The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Willistone and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.\"\n112. The types of contracts to which the principle formulated by us above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. They are opposed to public policy and require to be adjudged void.\n113. We will now test the validity of Rule 9(i) by applying to it the principle formulated above. Each of the contesting Respondents was in the service of the Rivers Steam Navigation Company Limited and on the said Scheme of arrangement being sanctioned by the Calcutta High Court, he was offered employment in the Corporation which he had accepted. Even had these Respondents not liked to work for the Corporation, they had not much of a choice because all that they would have got wag \"all legitimate and legal compensation payable to them either under the Industrial Disputes Act or otherwise legally admissible\". These Respondents were not covered by the Industrial Disputes Act for they were not workmen but were officers of the said company.\nIt is, therefore, difficult to visualize what compensation they would have been entitled to get unless their contract of employment with their previous employers contained any provision in that behalf. So far as the original terms of employment with the Corporation are concerned, they are contained in the letters of appointment issued to the contesting Respondents. These letters of appointment are in a stereotype form. Under these letters of appointment, the Corporation could without any previous notice terminate their service, if the Corporation was satisfied on medical evidence that the employee was unfit and was likely for a considerable time to continue to be unfit for the discharge of his duties. The Corporation could also without any previous notice dismiss either of them, if he was guilty of any insubordination, intemperance or other misconduct, or of any breach of any rules pertaining to his service or conduct or non-performance of his duties. The above terms are followed by asset of terms under the heading \"Other Conditions\". One of these terms stated that \"You shall be subject to the service rules and regulations including the conduct rules\". Undoubtedly, the contesting Respondents accepted appointment with the Corporation upon these terms. They had, however, no real choice before them. Had they not accepted the appointments, they would have at the highest received some compensation which would have been probably meagre and would certainly have exposed themselves to the hazard of finding another job.\n114. It was argued before us on behalf of the contesting Respondents that the term that these Respondents would be subject to the service rules and regulations including the conduct rules, since it came under the heading \"Other Conditions\" which followed the clauses which related to the termination of service, referred only to service rules and regulations other than those providing for termination of service and, therefore, Rule 9(i) did not apply to them. It is unnecessary to decide this question in the view which we are inclined to take with respect to the validity of Rule 9(i).\nThe said Rules as also the earlier rules of 1970 were accepted by the contesting Respondents without demur. Here again they had no real choice before them. They had risen higher in the hierarchy of the Corporation. If they had refused to accept the said Rules, it would have resulted in termination of their service and the consequent anxiety, harassment and uncertainty of finding alternative employment.\nRule 9(i) confers upon the Corporation the power to terminate the service of a permanent employee by giving him three months' notice in writing or in lieu thereof to pay him the equivalent of three months' basic pay and dearness allowance. A similar regulation framed by the West Bengal State Electricity Board was described by this Court in West Bengal State Electricity Board and others v. Desh Bandhu Ghosh and others 1985 Indlaw SC 439 as \". a naked 'hire and fire' rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII clause so familiar to administrative lawyers.\"\n115. As all lawyers may not be familiar with administrative law, we may as well explain that \"the Henry VIII clause\" is a provision occasionally found in legislation conferring delegated legislative power, giving the delegate the power to amend the delegating Act in order to bring that Act into full operation or otherwise by Order to remove any difficulty, and at times giving power to modify the provisions of other Acts also. The Committee on Ministers' Powers in its report submitted in 1932 (Cmd. 4060) pointed out that such a provision had been nicknamed \"the Henry VIII clause\" because \"that King is regarded popularly as the impersonation of executive autocracy\". m e Committee's Report  criticised these clauses as a temptation to slipshod work in the preparation of bills and recommended that such provisions should be used only where they were justified before Parliament on compelling grounds. Legislation enacted by Parliament in the United Kingdom after 1932 does not show that this recommendation had any particular effect.\n116. No apter description of Rule 9(i) can be given than to call it \"the Henry VIII Clause\". It confers absolute and arbitrary power upon the Corporation. It does not even state who on behalf of the Corporation is to exercise that power. It was submitted on behalf of the Appellants that it would be the Board of Directors. me impugned letters of termination, however, do not refer to any resolution or decision of the Board and even if they did, it would be irrelevant to the validity of Rule 9(i). m ere are no guidelines whatever laid down to indicate in what circumstances the power given by Rule 9(i) is to be exercised by the Corporation. No opportunity whatever of a hearing is at all to be afforded to the permanent employee whose service is being terminated in the exercise of this power. It was urged that the Board of Directors would not exercise this power arbitrarily or capriciously as it consists of responsible and highly placed persons. This submission ignores the fact that however highly placed a person may be, he must necessarily possess human frailties. It also overlooks the well-known saying of Lord Acton, which has now almost become a maxim, in the Appendix to his \"Historical Essays and Studies\", that \"Power tends to corrupt, and absolute power corrupts absolutely.\" As we have pointed out earlier, the said Rules provide for four different modes in which the services of a permanent employee can be terminated earlier than his attaining the age of superannuation, namely, Rule 9(i), Rule 9(ii), sub- cl. (iv) of cl. (b) of Rule 36 read with Rule 38 and Rule 37. Under Rule 9(ii) the termination of service is to be on the ground of \"Services no longer required in the interest of the Company.\" Sub-cl. (iv) of cl. (b) of Rule 36 read with Rule 38 provides for dismissal on the ground of misconduct. Rule 37 provides for termination of service at any time without any notice if the employee is found guilty of any of the acts mentioned in that Rule. Rule 9(i) is the only Rule which does not state in what circumstances the power conferred by that Rule is to be exercised.\n117. Thus even where the Corporation could proceed under Rule 36 and dismiss an employee on the ground of misconduct after holding a regular disciplinary inquiry, it is free to resort instead to Rule 9(i) in order to avoid the hassle of an inquiry. Rule 9(i) thus confers an absolute, arbitrary and unguided power upon the Corporation. It violates one of the two great rules of natural justice - the audi alteram partem rule. It is not only in cases to which Art. 14 applies that the rules of natural justice come into play. As pointed out in Union of India etc. v. Tulsiram Patel etc..1985 Indlaw SC 401, \"The principles of natural justice are not the creation of Art. 14. Art. 14 is not their begetter but their constitutional guardian.\" That case has traced in some detail the origin and development of the concept of principles of natural justice and of the audi alteram partem rule. They apply in diverse situations and not only to cases of State action. As pointed out by 0. Chinnappa Reddy, H J., in Swadeshi Cotton Mills v. Union of India1981 Indlaw SC 349, 591 they are implicit in every decision-making function, whether judicial or quasi-judicial or administrative. Undoubtedly, in certain circumstances the principles of natural justice can be modified and, in exceptional cases, can even be excluded as pointed out in Tulsiram Patel's case. Rule 9(i), however, is not covered by any of the situations which would justify the total exclusion of the audi alteram partem rule.\n118. The power conferred by Rule 9(i) is not only arbitrary but is also discriminatory for it enables the Corporation to discriminate between employee and employee. It can pick up one employee and apply to him cl. (i) of Rule 9. It can pick up another employee and apply to him cl. (ii) of Rule 9. It can pick up yet another employee and apply to him sub-cl. (iv) of cl. (b) of Rule 36 read with Rule 38 and to yet another employee it can apply Rule 37. All this the Corporation can do when the same circumstances exist as would justify the Corporation in holding under Rule 38 a regular disciplinary inquiry into the alleged misconduct of the employee. Both the contesting Respondents had, in fact, been asked to submit their explanation to the charges made against them. Sengupta had been informed that a disciplinary inquiry was proposed to be held in his case. The charges made against both the Respondents were such that a disciplinary inquiry could easily have been held. It was, however, not held but instead resort was had to Rule 9(i).\n119. The Corporation is a large organization. It has offices in various parts of West Bengal, Bihar and Assam, as shown by the said Rules, and possibly in other States also. me said Rules form part of the contract of employment between the Corporation and its employees who are not workmen. These employees had no powerful workmen's Union to support them. They had no voice in the framing of the said rules they had no choice but to accept the said Rules as part of their contract of employment. m ere is gross disparity between the Corporation and its employees, whether they be workmen or officers. m e Corporation can afford to dispense with the services of an officer. It will find hundreds of others to take his place but an officer cannot afford to lose his job because if he does so, there are not hundreds of jobs waiting for him. A clause such as cl. (i) of Rule 9 is against right and reason. It is wholly unconscionable. It has been A entered into between parties between whom there is gross inequality of bargaining power. Rule 9(i) is term of the contract between the Corporation and all its officers. It affects a large number of persons and it squarely falls within the principle formulated by us above. Several statutory authorities have a clause similar to Rule 9(i) in their contracts of employment. As appears from the decided cases, the West Bengal State Electricity Board and Air India International have it. Several Government companies apart from the Corporation (which is the First Appellant before us) must be having it. There are 970 Government companies with paid-up capital of Rs.16,414.9 crores as stated in the written arguments submitted on behalf of the Union of India.\n120. The Government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as Rule 9(i) in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it-is void u/s. 23 of the Indian Contract Act.\n121. It was, however, submitted on behalf of the Appellants that this was a contract entered into by the Corporation like any other contract entered into by it in the course of its trading activities and the Court, therefore, ought not to interfere with it. It is not possible for us to equate employees with goods which can be bought and sold. It is equally not possible for us to equate a contract of employment with a mercantile transaction between two businessmen and much less to do so when the contract of employment is between a powerful employer and a weak employee.\n122. It was also submitted on behalf of the Appellants that Rule 9(i) was supported by mutuality inasmuch as it conferred an equal right upon both the parties, for under it just as the employer could terminate the employee's service by giving him three months' notice or by paying him three months' basic pay and dearness allowance in lieu thereof, the employee could leave the service by giving three months' notice and when he failed to give such notice, the Corporation could deduct an equivalent amount from whatever may be payable to him. It is true that there is mutuality in cl. 9(i) - the same mutuality as in a contract between the lion and the lamb that both will be free to roam about in the jungle and each will be at liberty to devour the other. When one considers the unequal position of the Corporation and its employees, the argument of mutuality becomes laughable.\n123. The contesting Respondents could, therefore, have filed a civil suit for a declaration that the termination of their service was contrary to law on the ground that the said Rule 9(i) was void. In such a suit, however, they would have got a declaration and possibly damages for wrongful termination of service but the civil court could not have ordered reinstatement as it would have amounted to granting specific performance of a contract of personal service. As the Corporation is \"the State\", they, therefore, adopted the far more efficacious remedy of filing a writ petition u/art. 226 of the Constitution.\n124. As the Corporation is \"the State\" within the meaning of Article 12, it was amenable to the writ jurisdiction of the High Court u/art. 226. It is now well-established that an instrumentality or agency of the State being \"the State\" under Art. 12 of the Constitution is subject to the Constitutional limitations, and its actions are State actions and must be judged in the light of the Fundamental Rights guaranteed by Part III of the Constitution\nThe actions of an instrumentality or agency of the State must, therefore, be in conformity with Art. 14 of the Constitution. The progression of the judicial concept of Art. 14 from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Tulsiram Patel's Case . The principles of natural justice have now come to be recognized as being a part of the Constitutional guarantee contained in Art. 14. In Tulsiram Patel's Case this Court said  :\n\"The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Art. 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is violation of Article 14; therefore, a violation of a principle of natural justice by a State action is a violation of Art. 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter.\"\nAs pointed out above, Rule 9(i) is both arbitrary and unreasonable and it also wholly ignores and sets aside the audi alteram partem rule it, therefore, violates Art. 14 of the Constitution.\n125. On behalf of the Appellants reliance was placed upon the case of Radhakrishna Agarwal and others v. State of Bihar and others, 1977 Indlaw SC 282. The facts in that case were that a contract, called a \"lease\", to collect and exploit Sal seeds from a forest area was entered into between the State of Bihar and the appellants in that case. Under one of the clauses of the said contract, the rate of royalty could be revised at the expiry of every three years in consultation with the lessee and was to be binding on the lessee. The State unilaterally revised the rate of royalty payable by the appellants and thereafter cancelled the lease. The Patna High Court dismissed the writ petition filed by the appellants and the appellants' appeal to this Court was also dismissed. In that case it was held that when a State acts purely in its executive capacity, it is bound by the obligations which dealings of the State with individual citizens import into every transaction entered into in exercise of its constitutional powers, but this is only at the time of entry into the field of consideration of persons with whom the Government could contract, and after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the Constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. The court then added :\n\"No question arises of violation of Art. 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract.\"\n126. We fail to see what relevance that decision has to the case before us. Employees of a large organization form a separate and distinct class and we are unable to equate a contract of employment in a stereotype form entered into by \"The State\" with each of such employees with the \"lease\" executed in Radhakrishna Agarwal's Case. Further, the contract or the lease between the parties in that case was a legally valid contract. In that case what the appellants were doing was to complain of a breach of contract committed by the State of Bihar acting through its officers. The contesting Respondents are not complaining of any breach of contract but their contention is that Rule 9(i) which is a term of their contract of employment is void. They are not complaining that the action of termination of their service is in breach of Rule 9(i). Their complaint is not merely with respect to the State action taken under Rule 9(i) but also with respect to the action of the State in entering into a contract of employment with them which contains such a clause or rather forcing upon them a contract of employment containing such a clause. As we have held earlier, Rule 9(i) is void even under the ordinary law of contracts.\n127. We must now turn to two decisions of the Bombay High Court as each party has relied strongly upon one of them, namely, S.S. Muley v. J.R.D. Tata and others  and Manohar P. Kharkhar and another v. Raghuraj and another 1981 Indlaw MUM 4036 commonly known as the \"Makalu\" Case as it related to certain cables which were damaged in an aircraft named 'Makalu' belonging to Air India International. The decision in Muley's Case was relied upon by the Respondents while the decision in Makalu's Case was relied upon by the Appellants.\nBoth the cases related to Regulation 48 of the Air India Employees' Service Regulations framed by Air India International. Air India International is a corporation established under the Air Corporations Act, 1953 (Act No.27 of 1953) and it is indisputably \"The State\" within the meaning of Art. 12 of the Constitution. Under Cl. (a) of the said Regulation 48, the services of a permanent employee can be terminated \"without assigning any reason\" by giving him thirty days' notice in writing or pay in lieu of notice. In both these cases, the services of the concerned employees were terminated under Regulation 48(a). The said Regulations also provided for dismissal of an employee who was found guilty of misconduct in a disciplinary inquiry held according to the procedure prescribed in the said Regulations.\n128. In Muley's Case a learned Single Judge of the Bombay High Court, Sawant, J., held the said Regulation 48(a) to be void as infringing Art. 14 of the Constitution. In West Bengal State Electricity Board's Case this Court stated , \"The learned Judge struck down Regulation 48(a) and we agree with his reasoning and conclusion.\" The reasoning upon which Sawant, J., reached his conclusion was that there was no guidance given anywhere in the impugned Regulation for the exercise of the power conferred by it, that it placed untrammelled power in the hands of the authorities, that it was an arbitrary power which was conferred and it did not make any difference that it was to be exercised by high ranking officials. In the Makalu Case a contrary view was taken by a Division Bench of the Bombay High Court. The Division Bench rightly held that the employees of a statutory corporation did not enjoy the protection conferred by Art. 311(2). It, however, further held that the phrase \"without assigning any reason\" used in the said Regulation 48 only meant a disclosure of the reasons to the employee concerned. After going into the facts which had been pleaded by Air India International to justify the termination of the service of the petitioners in that case, the Division Bench held that the impugned orders were justified.\n129. It further held that Regulation 48 was not a one-sided regulation since under Regulation 49 the employee was also permitted to resign without assigning any reason by giving the notice prescribed therein. The Division Bench applied to the said Regulation 48 the analogy of the ordinary law of master and servant under which no servant can claim any security of tenure. It also brought in it the analogy of the right to compulsorily retire an employee where a provision in that behalf is made in the Service Rules. The Division Bench further held that it was difficult to conceive of any authority, which was \"the State\" under Art. 12 of the Constitution and bound by the Constitutional guarantees contained in Part III of the Constitution, terminating the services of its employees without reason or arbitrarily. It further held that the existence of relevant reasons was a sine qua non for exercising the power under Regulation 48. It went on to state that because of the complexity of modern administration and the unpredictable exigencies which may arise in the course thereof, it was necessary for an employer to be vested with powers such as those conferred by Regulation 48. The Division Bench took great pains to discern in some of the sections of the Air Corporations Act guidelines for the exercise of the power conferred by Regulation 48. According to the Division Bench, the choice of Air India International to proceed under Regulation 48 would have to be dictated for the purpose of the needs and exigencies of its administration and if that power was exercised arbitrarily, the court would strike down the action taken under Regulation 48.\n130. We were invited by Learned Counsel for the Appellants to peruse the judgment in that case and we did so with increasing astonishment. Though the said judgment bears the date September 18, 1981, we were unable to make out whether it was a judgment given in the year 1981 or in the year 1881 or even earlier. We find ourselves wholly unable to agree with the view taken by the Division Bench. Apart from the factual aspects of the case, as to which we say nothing, we find every single conclusion reached by the Division Bench and the reasons given in support thereof to be wholly erroneous. The Division Bench overlooked that it was not dealing with a case of a non-speaking order but with the validity of a regulation. The meaning given by it to the expression \"without assigning any reason\" was wrong and untenable. Starting with this wrong premise, it has gone from one wrong premise to another. In the light of what we have said earlier about the principles of public policy evolved, and tested by the principle which we have formulated, the said Regulation 48(a) could never have been sustained. In West Bengal State Electricity Board's Case, a three-Judge Bench of this Court said as follows :\n\"The learned counsel for the appellant relied upon Manohar P. Kharkhar v. Raghuraj 1981 Indlaw MUM 4036 to contend that Regulation 48 of the Air India Employees' Service Regulations was valid. It is difficult to agree with the reasoning of the Delhi High Court that because of the complexities of modern administration and the unpredictable exigencies arising in the course of such administration it is necessary for an employer to be vested with such powers as those under Regulation 48. We prefer the reasoning of Sawant, J. of the Bombay High Court and that of the Calcutta High Court in the judgment under appeal to the reasoning of the Delhi High Court.\"\n131. The mention of the Delhi High Court in the above passage is a slip of the pen, for it was the Bombay High Court which decided the case. We are in respectful agreement with what has been stated in the above passage. The Makalu Case was wrongly decided and requires to be overruled. We are, however, informed that an appeal against that judgment is pending in this Court and rather than overrule it here, we leave it to the Bench which hears that appeal to reverse it.\n132. We would like to observe here that as the definition of \"the State\" in Art. 12 is for the purposes of both Part III and Part IV of the Constitution, State actions, including actions of the instrumentalities and agencies of the State, must not only be in conformity with the Fundamental Rights guaranteed by Part III but must also be in accordance with the Directive Principles of State Policy prescribed by Part IV. Cl. (a) of Art. 39 provides that the State shall, in particular, direct its policy towards \"securing that the citizens, men and women, equally have the right to adequate means of livelihood.\" Art. 41 requires the State, within the limits of its economic capacity and development, to \"make effective provision for securing the right to work\". An adequate means of livelihood cannot be secured to the citizens by taking away without any reason the means of livelihood. The mode of making \"effective provision for securing the right to work\" cannot be by giving employment to a person and then without any reason throwing him out of employment. The action of an instrumentality or agency of the State, if it frames a service rule such as cl. (a) of Rule 9 or a rule analogous thereto would, therefore, not only be violative of Art. 14 but would also be contrary to the Directive Principles of State Policy contained in cl. (a) of Art. 39 and in Art. 41.\n133. The Calcutta High Court was, therefore, right in quashing the impugned orders dated February 26, 1983, terminating the services of the contesting Respondents and directing the Corporation to reinstate them and to pay them all arrears of salary. The High Court was, however, not right in declaring cl. (i) of Rule 9 in its entirety as ultra vires Art. 14 of the Constitution and in striking down as being void the whole of that clause. What the Calcutta High Court overlooked was that Rule 9 also confers upon a permanent employee the right to resign from the service of the Corporation. By entering into a contract of employment a person does not sign a bond of slavery and a permanent employee can not be deprived of his right to resign. A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee. The Corporation ought to make suitable provisions in that behalf in the said Rules. Therefore, while the judgment of the High Court requires to be confirmed, the declaration given by it requires to be suitably modified.\n134. In the result, both these Appeals fail and are dismissed but the order passed by the Calcutta High Court is modified by substituting for the declaration given by it a declaration that cl. (i) of Rule 9 of the \"Service, Discipline & Appeal Rules - 1979\" of the Central Inland Water Transport Corporation Limited is void u/s. 23 of the Indian Contract Act, 1872, as being opposed to public policy and is also ultra vires Art. 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months' notice in writing or by paying him the equivalent of three months' basic pay and dearness allowance in lieu of such notice.\n135. By interim orders passed in the Petitions for Special Leave to Appeal filed by the Corporation, we had granted pending the disposal of those Petitions a stay of the order of the Calcutta High Court in so far as it directed the reinstatement of the contesting Respondents. At that stage the Corporation had undertaken to pay to the said Respondents all arrears of salary and had also undertaken to pay thereafter their salary from month to month before the tenth day of each succeeding month until the disposal of the said Petitions. We hereby vacate the stay order of reinstatement passed by us and direct the Corporation forthwith to reinstate the First Respondent in each of these Appeals and to pay to him within six weeks from today all arrears of salary and allowances payable to him, if any still unpaid.\n136. The First Appellant in both these Appeals, namely, the Central Inland Water Transport Corporation Limited, will pay to the First Respondent in each of these Appeals the costs of the respective Appeals. The other parties to these Appeals and the Intervener will bear and pay their own costs of the Appeals.\nAppeal dismissed.\n"}
+{"id": "YsP6ihgIqL", "title": "", "text": "West Bengal State Electricity Board and Others v Desh Bandhu Ghosh and Others\nSupreme Court of India\n\n26 February 1985\nCivil Appeal No. 562 of 1985\nThe Judgment was delivered by : O. Chinnappa Reddy, J.\nSpecial leave granted.\n1.  The West Bengal State Electricity Board is the principal appellant in this appeal by special leave which we have just now granted. The first respondent, a permanent employee of the West Bengal State Electricity Board, filed the writ petition out of which the appeal arises in the Calcutta High Court to quash an order dated march 22, 1984 of the Secretary, West Bengal State Electricity Board terminating his services as Deputy Secretary with immediate effect on payment of three month's salary in lieu of three month's notice. The order gave no reasons for terminating the services of the respondent and there was nothing in the order which could possibly be said to attach any stigma to the respondent. Apparently the order was made under Regulation 34 of the Board's regulations which enables the Board to terminate the services of any permanent employee 'by serving three months' notice or on payment of salary for the corresponding period in lieu there-of'. The High Court contrasted Regulation 34 with Regulation 33 which provides for the termination of services of both permanent and temporary employees of the Board on attaining the age of superannuation, as a result of the disciplinary action etc.\n2.  For the sake of convenience we extract below Regulation 33 and the first paragraph (which alone is relevant) of Regulation 34:\n\"33 (1) Unless otherwise specified in the appointment order in any particular case, the services of a permanent employee of the Board may be terminated without notice-\n(i) On his attaining the age of retirement or by reason of a declaration by the competent medical authority that he is unfit for further service; or\n(ii) as a result of disciplinary action;\n(iii) if he remains absent from duty, on leave or other wise, for a continuous period exceeding 2 years.\n(2) In the case of a temporary employee, his service may be terminated by serving of-\n(a) one month's notice on other side or on payment of a month's salary in lieu thereof; or\n(b) notice on either side for the period specified in the appointment order or contract or on payment of salary in lieu thereof, as the case may be.\n(c) the service of a temporary employee shall also be deemed to have been terminated automatically if the period of extraordinary leave without pay and/or of unauthorized absence from duties exceeding(s) a maximum period of 90 days.\n\"34. in case of a permanent employees, his services A may be terminated by serving three months' notice or on payment of salary for the corresponding period in lieu thereof.\"\n3.  Contrasting Regulations 33 and 34 the High Court came to the conclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination. The High Court, therefore, struck down the first paragraph of Regulation 34 and as a consequence quashed the order terminating the services of the first respondent.\n4.  The learned counsel for the West Bengal State Electricity Board submitted that Regulation 34 did not offend Art. 14 of the Constitution, that sec. 18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way.\n5.  We are not impressed with the submission of the learned counsel for the Board. On the face of it, the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination- It is a naked 'hire and fire' rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers In Moti Ram Deka v. North East frontier Railway, AIR 1964, S C. 600 1963 Indlaw SC 215 Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to Art. 311 (2) of the Constitution. The challenge was upheld though no opinion was expressed on the question whether the rule offended art 14 of the Constitution. Since then Art. 14 has been interpreted in several decisions of this Court and conferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this court as offending Art. 14. In S. S. Muley v. J.R. D. Tata and Ors., [1979] 2 S.L.R. 438 1979 Indlaw MUM 3781 P. B. Sawant, J. of the Bombay High Court considered at great length Regulation 48 (a) of the Air India Employee's Service Regulations which conferred similar power on the Corporation as Regulation 34 confers on the Board in the present case.\n6.  The learned judge struck down Regulation 48 (a) and we agree with his reasoning and conclusion. In Workman, Hindustan Steel Ltd. v. Hindustan Steel Ltd., A.I.R. 1985 S.C. 251 1984 Indlaw SC 249 this Court had occasioned to hold that a Standing Order which conferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an inquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to continue to employ the workman was violative of the basic requirement of natural justice.\n7.  The learned counsel for the appellant relied upon Manohar P. Kharkhar v. Raghuraj, [1981] II L.L.J. 459 1981 Indlaw MUM 4036 to contend that Regulation 48 of the Air India Employee's Service Regulations was valid. It is difficult to agree with the reasoning of the Delhi High Court that because of the complexities of modern administration and the unpredictable exigencies arising in the course of such administration it is necessary for an employer to be vested with such powers as those under Regulation 48. We prefer the reasoning of Sawant, J. Of the Bombay High Court and that of the Calcutta High Court in the judgment under appeal to the reasoning of the Delhi High Court. In the result the appeal is dismissed with costs.\nAppeal dismissed.\n"}
+{"id": "QMgV0Lh8Wv", "title": "", "text": "R. K. Lakshmanan v A. K. Srinivasan and Another\nSupreme Court of India\n\n1 August 1975\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1 30 of 1975. Appeal by Special Leave from the Judgment and Order dated the 13th March, 1974 of the Kerala High Court in Criminal Misc. Petition No. 7 of 1974 with Crl. M.P. No. 967/73.\nThe Judgment was delivered by: R. S. Sarkaria, J.\n1.  This appeal by special leave is directed against a judgment of the Kerala High Court rejecting the appellant's application under s. 561-A. Criminal Procedure Code for expunction of certain remarks made against him in the High Court's order, dated 20-11-1973, in Criminal Misc. Petition No. 967 of 1973.\n2.  The appellant is a member of the Kerala Judicial Service, while the respondent herein is an Advocate practising at Ernakulam. On 14-8-1973, the appellant was working as District Magistrate Ernakulam. One Kamaleswaran, who was an accused in C.C. Nos. 216 and 217 of 1973 pending before him, was ordered to be released on bail on his executing a bond for Rs. 1,000/with two sureties in the like amount. The two sureties were Kamaleswaran, the brother of the accused, and Sri Thankappan Nair. Thankappan's address was given as \"businessman, son of Parameswaran Pillai, Thambanoor Trivandrum.\" The affidavit filed by Thankappan, while offering himself as surety, was attested by Sri A. K. Srinivasan Advocate stating \"solemnly affirmed at Ernakulam on this 14th day of August 1973 and signed before me who is personally known to me\".\n3.  The above cases stood posted for examination of the accused under s. 342 of the Code of Criminal Procedure. When on that date the cases were called for hearing, the accused was absent. His Counsel Shri Srinivasan appeared and represented that although he had no information from the accused, who had to come from Trivandrum. yet he was expecting him to reach the court in time. The appellant (District Magistrate) thereupon ordered cancellation of the bail bonds and directed issue of notices to the Surety under s. 514 of the Code of Criminal Procedure calling upon him to show cause before 16-10-1973 why the terms of the Surety bonds providing for forfeiture of the sum of Rs. 1,000/be not enforced. The notices issued to the Surety Thankappan Nair, were returned unserved whereupon on the 17th October, 1973. the appellant issued a non-bailable warrant for the arrest of the Surety. On the following day, the appellant issued a notice to Sri A. K. Srinivasan, Advocate which ran as under:\n\"Ernakulam District Magistrate Court No. M.C. 106 and M.C. 107 of 1973.\nNotice for Shri A. K. Srinivasan, Advocate.\nThe above-mentioned cases are being fixed for hearing 3-11-1973 at 11 A.M. You are required to appear before the Court. .... .............\nBy order\nSd./\n18th October. 1973 SARISHADAR.\"\n4.  It may be mentioned here that in the proceedings initiated under s. 514 of the Code of Criminal Procedure in the two cases . Mr. Srinivasan, Advocate was not the duly constituted attorney or the Surety, Thankappan.\n5. On receipt of the aforesaid notice, Mr. Srinivasan, Advocate filed Crl. M.P. 967 of 1973 before the High Court of Kerala under s. 561-A of the Code of Criminal Procedure praying that the appellant be directed to withdraw the notice, dated 18-10-1973, on the ground that the issue of notice was arbitrary and amounted to an abuse of the process of the court because-\n(a) There is no provision in the Criminal Procedure Code empowering the Magistrate to issue such a notice to command the Advocates' appearance when he is not connected either as a witness or a party or otherwise with the proceedings relating to cancellation of bailbonds;\n(b) The notice was issued to humiliate him and the Bar since the latter had passed a resolution, on 21-7-1973, pro testing against the improper and discourteous treatment meted out by the Magistrate to the members of the Bar.\n6.  The learned Judge of the High Court before whom this petition came up for hearing, by an order dated 2-11-1973, called for a report from the appellant by 5-11-1973 regarding the allegations contained in, the Advocate's petition and particularly as to under which provision of law and under what circumstances he had thought it fit to issue a notice to the Advocate requiring him to appear before him on 3-11-1973. The appellant thereupon submitted the report to the High Court, the material part of which reads:\n\"When notice was sent to the surety Thankappan Nair whose address is given as, business-man, Thambanoor, Trivandrum, it was reported by the Police that there is no such person, as far as they could gather, from the detailed enquiries made and therefore notice could not be served. In the affidavits filed by Shri Thankappan Nair in these two cases when he offered himself as surety the signatures of the deponent were attested by Shri A. K. Sreenivasan, Advocate stating Solemnly affirmed at Ernakulam on this the 14th day of August 1973 and signed before me? who is personally, known to me. From the report of the Police Trivandrum it appeared that this might be a case of false personation. It is seen that in several cases the accused have been got re leased by false sureties. have already submitted a report about this to the Hon'ble High Court as per my letter dated 31-10-1973.\nThere are several other similar instances of false personation and filing false affidavits pending enquiry before this Court. Under the circumstances in this case also it appeared to the court that a false affidavit has been filed by false personation. If it is false personation, the attestation by the advocate should necessarily be false. The offences under Sections 193, 196, 197, 199 and 205 of the Indian Penal Code appear to have been committed. These are some of the offences mentioned in S. 195 Cr. P.C. Under s. 476 of the Cr. P.C. when any Civil, Revenue or Criminal Court is whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in s. 195, Sub-s. (1), Cl. (b) or cl. (c), which appears to have been committed in or in relation to a proceeding in that court, such court may, after such preliminary inquiry if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court.. To ascertain whether there is a person as described in the affidavits filed in the name of Shri Thankappan Nair notice was issued as part of the preliminary enquiry contemplated u/s. 476 Cr. P.C. to Shri A. K. Sreenivasan who has attested the affidavits of the said Thankappan Nair stating that the deponent is personally known to him. This had to be done in view of the report of the police. Notice to Shri A K. Sreenivasan was issued to appear in court on 3-11-1913 not in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said surety stating that he personally knows the surety. The court can make the preliminary enquiry mentioned above, either through the police or to the accused or to the other surety or to the person who attested the affidavit. In this matter accused is absconding. the other surety could not be served and the police report is as stated above. So the only person to whom the inquiry under 476 could be made in the circumstances is the person who has attested the affidavit.\"\n7.  On 8-11-1973, the Advocate filed an affidavit in which he inter alia averred:\n\"I submit that the present explanation that the notice was issued to me as a part of the preliminary enquiry contemplated under sec. 476 of the Criminal Procedure Code is obviously an after-thought, since it is difficult that any reasonable man would have inferred from the Police Report dated 12-10-1973 that Sri Thankappan Nair\" one of the sureties was a nonexistent person and therefore the attestation mad by me on 14-8-1973 would have been false\".\n8. He further reiterated with elaboration the allegations in his petition that the impugned action of the Magistrate lacked good faith and due care and had been issued to humiliate the bar generally and the petitioner particularly. After taking into consideration the appellant's report and other material on record, the High Court quashed the notice holding that the \"action of the District Magistrate in issuing the impugned notice to the appellant constitutes grave misuse of his power and flagrant abuse of the process of the court\".\n9.  The appellant then moved an application (Cr. M.P. No. 7 of 1974) for expunction of the remarks made against him by the High Court in its order, dated 20-11-1973. The application was rejected.\n10. Against that order, dated 13-3-1974, refusing to expunge the adverse remarks, Shri Lakshmanan the District Magistrate has come in appeal to this Court.\n11.  11l the reply affidavit, dated 21-3-1975, filed in this Court, the appellant has submitted that if this Court is prima In of the opinion that the passages requested to be expunged are too many and spread over throughout the order, at least these four passages be expunged from the order in question:\n\"(i) I cannot help remarking that the information furnished to this Court by the District Magistrate in his report dated 3-11-1973 regarding the contents of the Police Report is grossly inaccurate and misleading.\"\n\"(ii) I make no secret of my opinion that the action taken by the District Magistrate, in the present case in issuing a notice to the petitioner, who is a member of the bar, was most highly arbitrary and the very casual fashion in which the said action has been done renders it all the more objectionable.\"\n\"(iii) that the action taken against the petitioner by the District Magistrate is totally devoid of any legal sanction and highly arbitrary. '\n\"(iv) l hold that the action of the District Magistrate in issuing the impugned notice to the petitioner constitutes a grave misuse of his power and also flagrant abuse of the process of his court\".\n12.  The tests to be applied in considering the expunction of disparaging remarks against persons or authorities whose conduct comes in for consideration before courts of law in cases to be decided by them, were neatly summed up by this Court, speaking through S. K. Das, J., in State of U.P. v. Muhammad Nain, thus:\n\"(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;\n(ii) Whether there is evidence on record bearing on that conduct justifying the remarks; and\n(iii)Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that con duct. It has also been recognised that judicial pronouncements must be judicial in nature, and should n not normally depart from sobriety, moderation and reserve.\"\nLet us now apply these tests to the present case.\n13. In the petition filed under s. 561-A, Code of Criminal Procedure by the Advocate, the appellant was impleaded as the sole respondent. The appellant was called upon by the High Court to explain his conduct in issuing the impugned notice. In reply, the appellant submitted a detailed report. It is not controverted that before the High Court. the appellant was represented by a senior Public Prosecutor who had been directed to defend him by the State Government. The appellant had thus adequate opportunity of explaining his conduct and defending the impugned action. Indeed, in his report submitted to the High Court, he did his best to justify his conduct in that case. The appellant therefore, cannot complain that the remarks in question were passed by the High Court without affording him due opportunity to explain and defend his action.\n14.  Nor can it be said that this is a case where there was no evidence on record bearing on the conduct of the appellant to which the re marks in question pertain.\n15. It is true that ex-facie, the notice requiring the Advocate to attend the Court of the Appellant on 3-11-73, though couched in curt and peremptory language, was not, by itself, a very offensive document. But the Advocate's allegation was that it had not been issued in good faith and the sole purpose of issuing this notice was to humilate the Advocate and the Bar who had earlier passed a resolution complaining to the High Court against the misbehaviour of the appellant towards the members of the Bar. Subsequently, on 8-11-1973 the Advocate field an affidavit setting forth full particulars of the circumstances which, according to him, showed how the notice was illegal. arbitrary and tainted by bad faith. He annexed a copy of the Bar's resolution, to his affidavit. the report sent by the appellant to the High Court confirmed that the allegations made in the Advocate's petition were not empty apprehensions. The report revealed that the notice was not an innocuous request to the Counsel to furnish better k particulars of the Surety, but it was a preliminary step taken under cover of s. 476, Criminal Procedure Code for possible prosecution of the Advocate. The appellant gave a clear clue to his ulterior intent, when in the report, he said:\n\"Notice to Shri A. K. Sreenivasan was issued....not in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said Surety .... \"\n16.  Thus there was ample material before the High Court bearing on the impugned conduct of the appellant, justifying the adverse comments in question.\n17. Again, the passages sought to be expunged could not be said to be irrelevant or alien to the subject matter of the case before the High Court. The notice issued to the Surety had been returned by the police with an endorsement which, rendered into English, reads as under:\n\"Notice could not be served on the person referred to in the notice as he (process server) did not get any information about him after detailed enquiry made about him in Tampanoor from different businessmen. For want of sufficient information and more detailed particulars regarding the nature of the business conducted at Tampanoor by the person referred to in the notice, the service could not be ' effected. Submitted for orders\".\n18.  But in his report submitted to the High Court, the appellant stated that \"it was reported by the Police that there is no such person as far as they could gather from the detailed inquiries made and therefore notice could not be served\". Manifestly, this statement did not present a faithful and correct picture of the endorsement of the process server. Evidently, this misleading stand was taken by the appellant to show that action under s. 476, Criminal Procedure Code against the Advocate would not be groundless. In these premises it cannot be said that the observations of the High Court that \"information furnished to this Court by the District Magistrate in his report dated 3-11-73 regarding the contents of the Police Report is grossly inaccurate and misleading\" was unjustified.\n19.  The substance of the other remarks in question is substantially the same, viz., that the issue of the impugned notice to the Advocate by the appellant was illegal and arbitrary and amounted to a gross abuse of the process of the Court. These remarks were an integral part of the reasoning of the High Court. They were not irrelevant or foreign to the matter in issue. They were inextricably intertwined with the findings and the order recorded by the High Court in that case. Excision of these remarks would emasculate the order of the High Court, robbing it of its very rationale.\n20. Judged by the aforesaid tests, no case for interference by this Court has been made out.\n21.  Accordingly, we dismiss the appeal, with no order as to costs.\nAppeal dismissed.\n"}
+{"id": "0pKGytvukF", "title": "", "text": "State of Uttar Pradesh v Mohammad Naim\nSupreme Court of India\n\n15 March 1963\nCriminal Appeal No. 81 of 1962\nThe Judgment was delivered by S. K. DAS J.\n1. This is an appeal by special leave, and it Presents some unusual features. The short facts are these. The Additional Sessions judge of Hardoi in the State of Uttar Pradesh tried Zafar Ali Khan and three other persons on charges under ss. 452 and 307 read with s. 34, Indian Penal Code, 1860. The case against the aforesaid accused persons started on a first information report lodged at a police station called Shahabad, purporting to have been so lodged at about 3.30 A. M. by one Farasat Ali Khan on the night between the 7th and 8th November, 1958. The case was investigated by one Mohammad Naim who was then the Station Officer of Shahabad police station. The learned Additional Sessions judge convicted the accused persons though he found, on the evidence given in the case, that it was more probable that the first information was lodged at the police station at about 7 or 8 A.m. rather than at 3.30 A. M. From the conviction and sentences passed by the Additional Sessions judge there was an appeal to the High Court at Allahabad (Lucknow Bench). This appeal was heard by Mulla J. He found that Mohammad Naim had dressed' up a totally unbelievable case which destroyed the evidentiary value of the statements of Farasat Ali and his wife, Ummati Begum, two of the principal witnesses for the prosecution. The Learned judge allowed the appeal and set aside the conviction and sentences of the four appellants before him. The learned judge further observed in his judgment:\n\"There is ample evidence to prove that the first information report in this case was not lodged at 3.30 A. M. This is also the finding of trial court. The time noted in the first information report is, therefore, a fictitious time and a fabrication has been made in the public records. I, therefore, direct the office to issue a notice to Sri Mohammad Naim as to why a complaint should not be instituted against him by this court u/s. 195 I. P. Code.\"\n\"I issued the notice because I want to clean the public administration as for as possible but an individual's efforts cannot go very far. If I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single-handed. I am on the verge of retirement and taking such steps for two months or three months more would not make any difference to the constitution and the character of the police force...... Somehow the police force in general, barring few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law and this can only be achieved by breaking or circumventing the law. At least the traditions of a hundred years indicate that this is what they believe.\nIf this belief is not rooted out of their minds, there is hardly any chance of improvement............ I say it with all sense of responsibility that there is not a single lawless group in the whole of the country. whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force. If the Police Force must be manned by officers like Mohmmad Naim then it is better that we tear up our Constitution, forget all about democracy and the rights of citizens and change the meaning of law and other terms not only in our penal enactments but also in our dictionaries. It is for these reasons that I am accepting this apology and not filing any complaint against Mohmmad Naim. Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks. 1, therefore, discharge the notice issued against Shri Mohmmad Naim.\"\n\"If I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single handed.\"\n(b)\" That there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit whichh is known as the Indian Police Force.\"\n(c)\" Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks.\"\n2. The main ground which the State of Uttar Pradesh urged in support of their petition was that\n\"the observations over the entire police force, bring the same into contempt, lower its prestige in the eyes of mankind, have a tendency to interfere with the' administration of the country and injure the security of the State.\"\n3. Mr. justice Mulla heard the application and came to the following main conclusions :- (1) That the State of Uttar Pradesh was not an aggrieved party and had no locus standi to make an application under s. 561-A Code of Criminal Procedure in respect of the observations made.\n(2) The observations required only one clarification namely, that they were made in respect of the police force of Uttar Pradesh and not of the whole country.(3) The observations made under (a) above would have been expunged, if the aggrieved party had approached the learned Judge.\n(4) As to the rest of the observations, there were no good grounds for expunging them because they were based upon the learned Judge's personal knowledge and experience and did not contain any over statements.\n4. He accordingly dismissed the application of the State. The State then moved the High Court for a certificate of fitness under Art. 134(1) (c) of the Constitution of India and being unsuccessful there, asked for special leave of this court under Art. 136 of the Constitution. This court granted special leave on April 12, 1962. The present appeal has been preferred from the order of the learned judge rejecting the application under s. 5(31-A Cr. P. C., in pursuance of the leave granted by this court.\n5. The first point which falls for consideration is whether the State of Uttar Pradesh had locus standi to make the application under s. 561-A Cr. P. C. We may first read the section :\n\"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.\"\n6. It is now well settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the -court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code , We shall presently deal with the question whether the High Court has inherent power to expunge the remarks made by it or by a lower court to prevent abuse of the process of any court or otherwise to secure the ends of justice. Assuming that the High Court has such power, the question now before us is, can the State Government invoke this inherent jurisdiction of the High Court? The learned judge of the High Court gave two reasons for his finding that the State Government had no locus standi to make an application under s. 561-A Cr. P. C. The first reason he gave was that the State Government could not be said to have been aggrieved by the observations made by him. The second reason he gave was that the State represented the executive as well as the judiciary and therefore it would be anomalous if it made an application under s. 561-A Cr. P. C., for such an application would be by the State through its executive to expunge remarks made by it as the judiciary.\n7. We do not think that any of these two grounds is tenable. Under Art. 154 of the Constitution the executive power of the State is vested in the Governor and shall be exercised by him either directly or through officers subordinate to him. The expression \"State Government\" has a meaning assigned to it under the General Clauses Act, 1897 (X of 1897). Briefly stated, it means the authority or person authorised at the relevant date to exercise executive government in the State, and after the commencement of the Constitution, it means the Governor of the State. It is not disputed that the police department is a department of the State Government through which the executive power of the State as respects law and order is exercised. If the State Government considers that the observations made by a court in respect of a department or officers through whom the State Government exercises its executive powers are such as require invoking the inherent power of the High Court under s. 561 -A Cr.P. C., it is difficult to see why the State Government cannot be considered to be the party aggrieved by such observations. Furthermore, it is not disputed that the State is a juristic person. The Code of Criminal Procedure itself recognises in some of its provisions the rights of the State Government; such as, the right to give sanction and to move the court for necessary action etc. the State Government being the authority or person authorised to exercise executive Government at the relevant date.\n8. Some of these provisions are contained in ss. 144 (6), 190 (2), 190 (3), 196, 196-A, 197 etc. of the Code. One outstanding example is furnished by s. 417 of the Code which gives to the State Government a right of appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court. It is also not disputed that the State Government may invoke the revisional jurisdiction of the High Court under s. 439 of the Code, though that section is general in its terms and does not specifically mention the State Government. Therefore, we fail to see why the State Government cannot make an application under s. 561-A. We see nothing anomalous in the State Government moving the court for redress when it feels aggrieved by remarks made against it, The State Government may make an application to the High Court under s. 561-A in the same way as it may direct the Public Prosecutor to present an appeal on its behalf to the High Court under s. 417 or may invoke through one of its officers the jurisdiction of the High Court under s. 439 of the Code. We have, therefore, come to the conclusion that the finding of the learned judge that the State Government has no locus standi to make the appli- cation under s. 561-A Cr. P.C. is erroneous in law. Our attention was drawn to some cases where the State Government made such applications in a pending appeal. No question was however raised therein whether the State Government had locus standi to make the applications; therefore, we have thought fit to decide the point on principle rather than on cases where such applications were made.The second point for consideration is this, has the High Court inherent power to expunge remarks made by itself or by a lower court to prevent abuse of the process of any court or otherwise to secure the ends of justice ? There was at one time some conflict of judicial opinion on this question. The position as to case-law now seems to be that except for a somewhat restricted view taken by the Bombay High Court, the other High Courts have taken the view that though the jurisdiction is of an exceptional nature and is to be exercised in most exceptional cases only, it is undoubtedly open to the High Court to expunge remarks from a judgment in order to secure the ends of justice and prevent abuse of the process of the court lsee Emperor v. Ch. Mohd. Hassan 1943 AIR(Lah) 298.); State v. Chhotay Lal 1955 ALJ 240.); Lalit Kumar v. S. S. Bose 1956 Indlaw ALL 121.); S.Lal Singh v. State 1959 AIR(P&H) 211.) Ram Sagar Singh v. Chandrika Singh 1960 Indlaw PAT 790.); and In re Ramaswami 1958 AIR(Mad) 303.) The view taken in the Bombay High Court is that the High Court has no jurisdiction to expunge passages from the judgment of an inferior court which has not been brought before it in regular appeal or revision; but an application under s. 561-A Cr. P. C. is maintainable and in a proper case the High Court has inherent jurisdiction, even though no appeal or revision is preferred to it, to correct judicially the observations made by pointing out that they were not justified, or were without foundation, or were wholly wrong or improper I see State v. Nilkanth Shripad Bhave 1954 ILR(Bom) 148.). In State of U. P. v. J. N. Bagga (judgment in Cr. A. 122/1959 of this court decided on January 16 1961.), this court made an order expunging certain remarks made against the State Government by a learned Judge of the High Court of Allahabad. The order was made in an appeal brought to this court from the appellate judgment and order of the Allahabad High Court. In State of U. P. v. Ibrar Hussain (Judgment of this court in Cr. As. 148/) 957 and 4 of 1958 decided on April 28, 1959.), this court observed that it was not necessary to make certain remarks which the High Court made in its judgment. Here again the observation was made in an appeal from the judgment and order of the High Court. We think that the view taken in the High Courts other than the High Court of Bombay is correct and the High Court can in the exercise of its inherent jurisdiction expunge remarks made by it or by a lower court if it be necessary to do so to prevent abuse of the process of the court or otherwise to secure the ends of justice; the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only. In fairness to learned counsel for the appellants we may state here that he has submitted before us that the State Government will be satisfied if we either expunge the remarks or hold them to be wholly unwarranted on the facts of the case. He has submitted that the real purpose of the appeal is to remove the stigma which has been put on the police force of the entire State by those remarks the truth of which it had no opportunity to challenge.The last question is, is the present case a case of an exceptional nature in which the learned judge should have exercised his inherent jurisdiction under s. 561-A Cr. P. C. in respect of the observations complained of by the State Government ? If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself ; (b) whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.\n9. In the case before us the learned judge chose to make sweeping and general observations against the entire police force of the State. The case before him related to only one police officer, Mohammad Naim, about whose conduct the learned judge was undoubtedly justified in making adverse remarks. The learned Judge himself realised that the remarks which he had made were much too general and sweeping in character, because in his later order he said that the remarks were meant for the police force in Uttar Pradesh only and he further said he would have expunged the remarks under the head (a) referred to earlier, if the party aggrieved had come before him. We consider that the remarks made by the learned judge in respect of the entire police force of the State were not justified on the facts of the case, nor were they necessary for the disposal of the case before him. The learned judge conceded that the general remarks he made were not based on any evidence in the record; he said that he drew largely from his knowledge and experience at the Bar and on the Bench.\n10. Learned counsel for the appellant has very frankly stated before us that the learned judge has had very great experience in the matter of criminal cases, and was familiar with the method of investigation adopted by the local police. He has contended, however, that it was not proper for the judge to import his personal knowledge into the matter. We do not think that in the present case we need go into the question as to the extent to which a judge or Magistrate may draw upon his experience in assessing or weighing evidence or even in judging the conduct of a person. We recognise the existence of exceptional circumstances in a case where the judge or Magistrate may have to draw upon his experience to determine what is the usual or normal conduct with regard to men and affairs. We say this with respect, but it appears to us that in the present case even allowing' for the great experience which the learned judge had in the matter of criminal trials, his statement that\n\"there was not a single lawless group in the whole country whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force\"\n11. To characterise the whole Police Force of the State as a lawless group is bad enough ; to say that its record of crime is the highest in the State is worse and coming as it does from a Judge of the High Court, is sure to bring the whole administration of law and order into disrepute. For a sweeping generalisation of such a nature, there must be a sure foundation and the necessity of the case must demand it. We can find neither in the present case. We think that the State Government was justifiably aggrieved by such a sweeping remark. Similar in nature is the remark about the stinking of \"every fish in the police force barring, perhaps, a few.\" The word \"perhaps\" seems to indicate that even about the few, the learned judge had some doubt. We consider that these sweeping generalisations defeat their own purpose. They were not necessary for the disposal of the case against Mohammad Naim. It would have been enough for the learned judge to say that when a large number of police officers were resorting to an objectionable method of investigation, it was unnecessary to pick out one petty officer and prosecute him for doing what several others had done with impugnity, It was wholly unnecessary for the learned judge to condemn the entire police force and say that their record of crime was the highest in the country. Such a remark instead of serving the purpose of reforming the police force, which is the object the learned judge says he had in mind, is likely to undermine the efficiency of the entire police force. We think that in his zeal and solicitude for the reform of the police force, the learned judge allowed himself to make these very unfortunate remarks which defeated the very purpose he had in mind. Having said all this, we must add, lest we be misunderstood, that the conduct of Mohammad Naim and officers like him deserves the severest condemnation, and the learned judge rightly observed that such conduct required very serious notice by superior officers of the Police. It is difficult to avoid the reflection that unless an example is made of such officers by taking the most stringent action against them, no improvement in police administration is possible.For the reasons given above, we have come to the conclusion, a conclusion which justice demands, that the present case is one of those exceptional cases where the inherent jurisdiction of the court should have been exercised and the remarks earlier referred to as (a), (b) and (c) should have been expunged. We accordingly allow the appeal and direct that the aforesaid remarks do stand expunged from the order of the learned judge dated August 4, 1961.\n"}
+{"id": "3UDqpNVGMr", "title": "", "text": "Masud Khan v State Of Uttar Pradesh\nSupreme Court of India\n\n26 September 1973\nWrit Petition No. 117 of 1973\nThe Judgment was delivered by : A. Alagiriswami, J.\n1.  Petitioner Masud Khan prays for his release on the ground that he, an Indian citizen has been illegally arrested and confined to, jail under Paragraph 5 of the Foreigners (Internment) Order, 1962. He had come to India from Pakistan on the basis of a Pakistani passport dated 137-1954and Indian visa dated 9-4-1956. In his application for visa he had stated that he had migrated to Pakistan in 1948 and was in Government service in Pakistan in P.W.D. as a Darogha and had given his permanent address as Hyderabad (Sind).\n2.  If these statements were correct the petitioner would clearly be a Pakistani national. When this fact was brought out in the counter affidavit filled on behalf of the respondent, the petitioner filed a further affidavit stating that he was appointed as a Police Constable in Hasanganj Police Station, District Fatehpur, U.P. in February 1947 and continued as a Police Constable till the middle of 1950 when he was dismissed from service, and that he went to Pakistan in the year 1951.In the reply affidavit filed on behalf of the respondent it is stated that one Md. Masood Khan son of Zahoor Khan was enrolled as Police Constable on 16-9-1947 and he was discharged from service on 20-5-1949. It is fairly clear that this information culled from the English Order Book from 1-101947 to 27-12-1951 refers to the petitioner. While, therefore, it is established that the petitioner did not go to Pakistan in 1948, it cannot be said that it has been established that the petitioner went to Pakistan only in 1951.When he went to Pakistan is a matter peculiarly within his knowledge and the produced no evidence in support of that statement.\n3.  Considering the frequent change of ground which the petitioner has resorted to, a mere statement from him cannot be accepted as true. Nor can we accept his contention that it is for the respondent to establish that lie did not go to Pakistan in 1951 but that he went on some other date. The petitioner has also alleged that he was married in U.P. on 25th December, 1949.Even assuming that this statement is correct; the petitioner cannot establish that he is a citizen of India unless lie succeeds in establishing that he was in India on 26-1-1950. If he bad been in India on 26-1-1950 but had gone to Pakistan in 1951 it would be for the Central Government to decide whether he is a Pakistani national or an Indian citizen even though he may have come to India on a Pakistani passport in 1956. That question does not arise here.\n4.  We are not prepared to assume that the petitioner should be deemed to have been present in India on 26-1-1950, as was urged on behalf of the petitioner. There is no room for any such presumption. Under s-9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner the onus of proving that he is not a foreigner lies upon him. The burden is therefore, upon the petitioner to establish that be is a citizen of India in the manner claimed by him and therefore be is not a foreigner. This burden not having been discharged by the petitioner it should be held that he is a foreigner and his claim that he is an Indian citizen cannot be dealt with under the Foreigners (Internment) Order, 1962 must be rejected.\n5.  It appears, however, that in 1960 he had been prosecuted before the Sub-Divisional Magistrate, Fatehpur under s. 14 of the Foreigner--, Act and was acquitted on the ground that he was not a foreigner. It was therefore contended that the question whether the petitioner is -a foreigner or not is a matter of issue estoppels. The decision that he was not a foreigner seems to have been based on the decision of the Allahabad High Court in Mohd. Hanif Khan v. State (AIR 1960 All. 434). 1959 Indlaw ALL 154It was held there that a Pakistani national who entered into India before the amendment to the Foreigners Act in 1957, when he could not be considered to be a foreigner, could not be so held because of that amendment. That decision was that of a learned Single Judge. On the point at issue he differed from an earlier decision of a learned Single Judge of the same Court in Ali Sher v. The State (AIR 1960 All. 431). 1959 Indlaw ALL 153But he decided that case before him on a different point and did not think it necessary to refer the case before him to a Bench for considering which of the two decisions was correct on the question regarding the nationality of a person who came to India on a Pakistani passport before 1957. There are thus two conflicting decisions of the same court on the same point and the Magistrate who decided the petitioner's case followed one of them.\n6.  But that apart, this matter could bedecided on another point.. The question of issue-estoppels has been considered by this Court in Pritam Singh v. State, of Punjab (AIR1956 SC 415), 1955 Indlaw SC 111 Manipur Administration v. Thokchom, Bira Singh (1964 7 SCR 123) 1964 Indlaw SC 413 and Piara Singh S. State of Punjab. Issue-estoppels arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken, under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India.\n7.  It is nota criminal prosecution. The principle of issue estoppels is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favored an accused, such a finding would constitute an estoppels or res judicator against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently, even for different offence which might be permitted by law. Pritam Singh's case 1955 Indlaw SC 111 (supra) was based on the decision of the Privy Council in Sambasivam v. Public, Prosecutor, Federation of Malaya (1950 A.C. 458). In that case Lord McDermott speaking for the Board said:\n\"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.\"\nIt should bekept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue-estoppels not the same as the, plea of double jeopardy or aura foist acquit. In The King v. Wilkes (77 C.L.R.511)\nDivon, J.\n8.  Referring to the question of issue estoppel said. view that there is an issue estoppels, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoners There must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppels should not apply Issue-estoppels concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the reiteration of issues which are settled by prior litigation.\"\n\"The emphasis here again would be seen to be on the determination of, criminal liability. In Marz v. The Queen (96 C.L.R. 62) the High Court of Australia said \"The Crown is as much precluded by an estoppels by judgment in criminal proceedings as is a subject in civil proceedings The laws which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppels, still less with the process of reasoning by which the finding was reached. in fact It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the other.\"\nHere again it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention.\n"}
+{"id": "ZDYUvh7i71", "title": "", "text": "Ajay Agarwal v Union Of India And Ors\nSupreme Court of India\n\n5  May  1993\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No400 of 1993. From the Judgment land order dated 3.6. 1992 of the Punjab and Haryana High Court in Criminal Revision No. 443 of 1990.\nThe Judgment was delivered by: K. Ramaswamy, J.\nSpecial leave granted.\n1.  The appellant, accused No. 2 in p.Ch. (CBI) No. 40/2, dated February 18, 1985, F.I.R. No. RC No. 2 to 4/1983 dated March 4,1983 and P.S. SPE/CBI/CTU (E) I/New Delhi, Dist. Delhi and four other namely, V.P. Anand, Baldev Raj Sharma, Bansi La] and Ranjit KumarMarwah are accused in the said case. It is the prosecution case that the accused hatched a conspiracy at Chandigarh to cheat Punjab National Bank for short'PNB '. In furtherance thereof V.P. Anand floated three New Link Enterprises and M/s. Moonlight Industries in the name of Baldev Raj Sharms, his employee and M/s. Guru Nanak Industries in the name of Bansi Lal, yet another employee. He opened current accounts in their respective names in the P.N.B. at Chandigarh. In furtherance of the conspiracy and in confabulation with V.P. Anand, the appellant, Ajay Aggarwal, a non-resident Indian at Dubai who is running M/s. Sales International, Dubai, agreed to and got credit facility by way of Foreign Letters of Credit Nos. 4069-p, 4070-p and 4084-p, issued proforma invoices of the said concern and addresses to PNB through Guru Nanak Industries and New Link Enterprises. Ranjit Marwah, the 5th accused, Manager of P.N.B., In-charge, of foreign exchange department confabulated with the accused, issued Foreign Letter of Credit in violation of import policy. The Bills of Lading were addressed to PNB at Chandigarh.The cable confirmation of P.N.B. was sent to M/ s Sales International by P.N.B., Chandigarh for confirmation of discrepancy. The appellant had confirmed correctness thereof in the name of V.P. Anand. Placing reliance thereon authority letter was issued by P.N.B., Chandigarh and cables were sent subsequent thereto to remit the amounts to Emirates National Bank Ltd. through Irving Trust Company. V.P. Anand was present on September 16, 1981 at Dubai and at his instance the Emirats National Bank, Dubai informed the P.N.B., Chandigarh that the discrepancy in the document adeptable to V.P. Anand and claimed to have inspected the goods on board in vessel, M.V. Atefeh. On receipt of the information from the Sales International, Dubai, full amount in US Dollars 4, 39,200 was credited against all the three Letters of Credit on discount basis. During investigation it was found that Vessel M.V. Atefeh was a nonexistent one and three Foreicn Letters of Credit were fabricated on the basis of false and forged shipping documents submitted by the appellant, Ajay Aggarwal to the Emirates National Bank, Dubai.\nThus the P.N. B. was cheated of an amount of Rs. 40,30,329. Accordingly charge sheet was laid against the appellant. and others for offences punishable under sections 120B read with Ss. 420 (Cheating), 468 (Forgery) and 471 using as genuine (Forged documents), I.P.C. The Chief Judicial Magistrate, Chandigarh by his order dated January 11, 1990 discharged all, the accused of the offences on the ground that conspiracy and the acts done in furtherance thereof had taken place outside India and, therefore the sanction u/s. 188 Criminal Procedure Code, 1973 for short the 'Code' is mandatory. Since no such sanction was produced the prosecution is not maintainable. On revision, the High Court of Punjab and Haryana in Criminal Revision No. 443 of 1990 by order dated June 3, 1992 held, that the conspiracy had taken place at Chandigarh. The overt acts committed in pursuance of that conspiracy at Dubai constituted offences under sections 420, 467 and 471, I.P.C., are all triable at Chandigarh without previous sanction of the central Govt. The order of discharge, therefore, was set aside and the appellant and other accused were directed to be present through their counsel in person in the Trial Court on July 17,1992 to enable the court to take further proceedings in accordance with law. This appeal has been filed by the appellant alone under Art. 136 of the constitution.\n2.  Sri Chidambaram learned senior counsel contended that the appellant was not a privy to the conspiracy. He was an N.I.R. businessman at Dubai. He never visited Chandigarh. Even assuming for the sake of argument that conspiracy had taken place and all act committed in furtherance thereof were also at Dubai. The transaction through, bank is only bank to bank transaction. Even assuming that some of the offences were committed in India since as per the prosecution case itself that part of the conspiracy and related offences were committed at Dubai, by operation of S. 188 read with the proviso thereto with a non- obstanti clause, absence of sanction by the Central Govt. knocks of the bottom of the jurisdiction of the courts in India to take cognisance of or to enquire into of try the accused. He placed strong reliance on 1. Fakhrulla khan and Ors. v. Emperor AIR 1935 Mad. 326 1935 Indlaw MAD 145, In re M.L. Verghese AIR 1947 MAD. 352, kailash Sharma v. State [1973] Crl. Law Journal 1021 1972 Indlaw DEL 55 and K. Satwant Singh v. State of Punjab [1960] 2 SCR 89 1959 Indlaw SC 113. Sri Goswami, the learned senior counsel for the respondents contended that the conspiracy to cheat. PNB was hatched at Chandigarh. All the accused committed overt acts in furtherance. All the accused committed overt acts in furtherance on the conspiracy at Chandigarh and, therefore, the sanction of the Central Govt. is not necessary. The High Court had rightly recorded those findings. There is no need to obtain sanction under s. 188 of the Code.\n3.  The diverse contentions give rise to the primary question whether the sanction of the Central Govt. as required under proviso to s. 188 of the Code is necessary. S. 188 of the Code reads thus:\n\"Offence committed outside India-when an offence is committed outside India -\n(a) by a citizen of India, whether on the high seas or elsewhere; or\n(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence asif it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except. with the previous sanction of the Central Government.\"\n4.  Section 3, IPC prescribes punishment of offences committed beyond, but which by law may be tried with, India, It provided that any person liable, by any Indian law, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. S. 4 extends its territorial operation postulating that IPC shall apply to any offence committed by-\n(1) Any citizen of India in any place without any beyond India;\n(2) Any person on any ship or aircraft registered in India wherever it may be.\n5.  Explanation-in this section the word offence' includes every act committed outside India which, if committed in India, would be punishable under this Code.. Illustration-A, who is a citizen of India, commits a Murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found.\n6.  The Code of Criminal Procedure extends to whole of India except the State of Jammu & Kashmir and except chapters 8, 10 and 11, the other provisions of the Code shall not apply to the State of Nagaland and to the tribal area. However, the State Govt. has been empowered, by a notification, to apply all other provisions of the Code or any of them to the whole or part of the State of Nagaland and such other tribal areas, with supplemental, incidental or consequential modifications, as may be specified in the notification.\nTherefore, the Code also has territorial operation. The Code is to consolidate and amend the law relating to Criminal procedure. S. 188 was suitably amended pursuant to the recommendation made by the Law Commission. Chapter VIII deals with jurisdiction of the courts in inquiries and trials. S. 177 postulates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed but exceptions have been engrafted in subsequent sections in the Chapter. S. 179 provides venue for trial or enquiry at the place where the act is done or consequences ensued. So inquiry or trial may be had by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. S. 188 by fiction dealt offences conumitted by a citizen of India or a foreigner outside India or on high seas or elsewhere or on any ship or aircraft registered in India. Such person was directed to be dealt with, in respect of such offences, as if be had committed at any place within India at which he may be found. But the proviso thereto puts and embargo that notwithstanding anything in any of the preceding sections of this Chapter have been done such offences shall not be inquired into or tried in India except with the previous sanction of the Central Govt.\n7.  Judicial power of a State extends to the punishment of all offences against the municipal laws of the State by whosoever committed within the territory. It also has the power to punish all such offences wherever committed by its citizen. The general principle of international law is that every person be it a citizen or foreigner who is found within a foreign State is subjected to, and is punishable by, its law. Otherwise the criminal law could not be administered according to any civilised system of jurisprudence. Ss. 177 to 186 deal with the venue or the place of the enquiry or trial of crimes. S. 177 reiterates the well-established common law rule that the proper and ordinary situs for the trial of a crime is the area of jurisdiction in which the acts occurred and are alleged to constitute the crime. But this rule is subject to several well-recognised exceptions and some of those exceptions have been engrafted in subsequent sections in the chapter of the Code.\nTherefore, the provisions in Chapter VIII are elastic and not peremptory. In consequence there- with Ss. 218 to 223 of the code would also deal with exceptions engrafted in the Code. Therefore, they do permit enquiry or trial of a particular offence along with other offences at a common trial in one court so that the court having jurisdiction to try an offence gets jurisdiction to try other offence committed or consequences thereof has ensued. The procedure is hand maid to substantive justice, namely, to bring the offenders to justice to meet out punishment under IPC or special law as the case may be, in accordance with the procedure prescribed under the Code or special procedure under that Act constituting the offence.\n8.  The question is whether prior sanction of the Central Govt. Is necessary for the offence of 'conspiracy under proviso to s. 188 of the Code to take cognizance of an offence punishable under s. 120-B etc. I.P.C. or to proceed with trial. In Chapter VA, conspiracy was brought on statute by the Amendment Act, 1913 (8 of 1913). Section 120-A of the I.P.C. defines 'conspiracy' to mean that when two or more persons agree to do, or cause to be done an ilegal act, or an act which is not illegal by illegal means such an agreement is designated as \"criminal conspiracy\". No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120-B of the I.P.C. prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details or the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected-, and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of criminal conspiracy was stated first by Lord Denman in jones case (1832 B & A D 345) that an indictment for conspiracy must \"charge a conspiracy to do an unlawful act by unlawful means\" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg [1868] L.R. 3 H.L. 306 and the House of Lords in unanimous decision reiterated in Quinn v. Leathem (1901 AC 495 at 528) as under:\n\"A conspiracy consists not merely in the intention of two or more, but in the agreement. of two or more to do ,in unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable, When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use of criminal means.\"\n9.  This Court in B. G. Barsay v. The State of Bombay [1962] 2 SCR at 229 1961 Indlaw SC 71, held\n\"The (list of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. U/s. 43 of the Indian Penal Code, an act would be illegal if fit is an offence or if it is prohibited by law.\"\n10.  In Yashpal v. State of Punjab [1977] SCR 2433 1977 Indlaw SC 57 the rule was laid as follows:\n\"The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators.\"\n11.  In Mohammed Usman. Mohammad Hussain Manivar & Anr. v. State of Maharashtra [1981] 3 SCR 68 1981 Indlaw SC 368, it was held that for an offence under section 120B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act. the agreement may be proved by necessary implication. In Noor Mohammed Yusuf Momin v. State of Maharashtra [1971] 1 SCR 119 1970 Indlaw SC 87, it was held that s. 120-B IPC makes the criminal conspiracy as a substantive offence which offence postulates an agreement between two or more persons to do or cause to be done an act by illegal means. If the offence itself is to commit an offence, no further steps are needed to be proved to carry the agreement into effect. In R. K. Dalmia & Anr. V. The Delhi Administration It 963] 1 SCR 253 1962 Indlaw SC 534, it was further held that it is not necessary that each member of a conspiracy must know all the details of the conspiracy. In Shivanarayan Laxminarayan & Ors. State of Mahrashtra & Ors. [1980] 2 SCC 465, this court emphasized that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design.\n12.  The question then is whether conspiracy is continuing offence. Conspiracy to commit crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy. Yet, in our considered view, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive. Being a continuing offence, if any acts or omissions which constitutes-an offence, are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Govt. all of them need not be present in India nor continue to remain in India. In lennart Schussler- & Anr. v. Director of Enforcement & Anr. [1970] 2 SCR 760 1969 Indlaw SC 383, a Constitution Bench of this Court was to consider the question of conspiracy in the setting of the facts, stated thus:\n\"A. 2 was the Managing Director of the Rayala Corporation Ltd. Which manufactures Halda Typewriters? A. 1 was an Export Manager of ASSAB. A. 1 and A.2 conspired that A.2 would purchase material on behalf of his Company from ASSAB instead of M/s Atvidaberos, which provided raw material. A.2 was to over- invoice the value of the goods by 40 per cent of true value and that he should be paid the difference of 40 per cent on account of the aforesaid over-invoicing by crediting it to A.2's personal account at Stockholm in a Swedish Bank and requested A. 1 to help him in opening the account in Swenska Handles Banken, Sweden and to have further deposits to his personal account from ASSAB. A. 1 agreed to act as requested by A.2 and A.2 made arrangements with ASSAB to intimate to A. 1 the various amounts credited to A.2's account and asked A. 1 to keep a watch over the correctness of the account and' to further intimate to him the account position from time to time through unofficial channels and whenever A. 1 come to India. A. 1 agreed to comply with this request. This agreement was entered into between the parties in the year 1963 at Stockholm and again in Madras in the year 1965. The question was whether Sec. 120- B of the Indian Penal Code was attracted to these facts.\"\n13.  Per majority, Jaganmohan Reddy, J. held that the gist of the offence defined in s. 120-A IPC, which is itself punishable as a substantive offence is the very agreement between two or more persons to do or cause to be done an illegal act or legal act by illegal means, subject, however, to the proviso that where the agreement is not an agreement to commit an offence, the agreement does not amount to a conspiracy unless it is followed up by an overt act done by one or more persons in pursuance of such an agreement. There must be a meeting of minds in the doing of the illegal act or the doing of a legal act by illegal means. If. in furtherance of the conspiracy, certain persons are induced to do an unlawful act without the knowledge of the conspiracy or the plot they cannot be held to be conspirators, though they may be guilty of an offence pertaining to the specific unlawful act. The offence of conspiracy is complete when two or more conspirators have agreed to do or cause to be done an act which is itself an offence, in which case no overt act need be established. It was contended in that regard that several acts which constitute to make an offence under s. 120-B may be split up in parts and the criminal liability of A. 1 must only be judged with regard to the part played by him. He merely agreed to help A.2 to open an account in the Swedish Bank, having the amounts lying to the credit of A.2 with Atvidaberg to that account and to help A.2 by keeping a watch over the account. Therefore, it does not amount to a criminal conspiracy. While negating the argument, this court held thus:\n\"It appears to us that this is not a justifiable contention, because what has to be seen is whether the agreement between A. 1 and A.2 is a conspiracy to do or continue to do something which is illegal and, if it is, it is immaterial whether the agreement to do any of the acts in furtherance of the commission of the offence do not strictly amount to an offence. the entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve.\"\nThus, this court, though not in the context of jurisdictional issue, held that the agreement not illegal at its inception would become illegal by subsequent conduct and an agreement to do an illegal act or to do a legal act by illegal means, must be viewed as a whole and not in isolation. It was also implied that the agreement shall continuing- till the object is achieved. The agreement does not get terminated by merely entering into an agreement but it continues to subsist till the object is either achieved or terminated or abandoned.\n14.  In Abdul Kader v. State AIR 1964 Bombay 133, a conspiracy was formed in South Africa by appellants to cheat persons by dishonestly inducing them to deliver money in the Indian currency by using forced documents and the acts of cheating were committed in India. When the accused were charged with the offence of conspiracy, it was contended that the conspiracy was entered into and was completed in South Africa and, therefore, the Indian Courts had no jurisdiction to try the accused for the offence of conspiracy. The Division Bench held that though the conspiracy was entered in a foreign country and was completed as soon as the agreement was made, yet it was treated to be a continuous offence and the persons continued to be parties to the conspiracy when they committed acts in India. Accordingly, it was held that the Indian Courts had jurisdiction to try the offence of conspiracy. In U.S. v. Kissal 218 US 601, Holmes, J. held that conspiracy is a continuous offence and stated \"is a perversion of natural thought and of natural language to call such continuous co-operation of a cinema to graphic series of distinct conspiracies rather than to call it a single one... a conspiracy is a partnership in criminal purposes. That as such it may have continuation in time. is shown by the rule that overt act by one partner may be the act of all without any new agreement specifically directed to that act\". In Ford v. U. S. 273 US 593 at 620 to 622, Tuft, C.J. held that conspiracy is a continuing offence. In Director of public Prosecutions v. Door and Ors. 1973 Appeal Cases 807 (H.L.), the five respondents hatched a plan abroad, i.e. Belgium and Morocco and worked out the details to import cannabis into the United States via England, In pursuance thereof two vans with cannabis concealed in them were shipped from Morocco to Southampton; the other van was traced at Liverspool, from where the vans were to have been shipped to America and the cannabis in it was found. They were charged among other offences with conspiracy to import dangerous drugs. At the trial, the respondents contended that the Courts in England had no jurisdiction to try them on the count of conspiracy since the conspiracy had been entered into abroad. While rejecting the contention, Lord Wilberforce held\n\"The present case involves international elements the accused are aliens and the conspiracy was initiated abroad but there can be no question here of any breach of any rules of international law if the) are prosecuted in this country. Under the objective territorial principle (use the terminology of the Harward Research in Inter- national Law) or the principle of University (For the prevention of the trade in narcotics falls within this description)or both, the courts of this country have a clear right, if not a duty, to prosecute in accordance with our municipal law. The position as it is under the international law it not, however, determinative of the question whether, unde r our municipal law, the acts committed amount to a crime. That has to be decided on different principles. If conspiracy to import drugs were a statutory offence, the question whether foreign conspiracies were included would be decided upon the terms of the statute. Since it is (if at all) a common law offence, this question must be decided upon principle and authority.\nIn my opinion, the key to a decision for or against the offence charged can be found in an answer to the question why the common law treats certain actions as crimes. And one answer must certainly be because the actions in question are a threat to the Queen's peace or as we would now perhaps say, to society. Judged by this test, there is every reason for, and none that I can see against, the prosecution. Con- spiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised and executed, in concert is more dangerous than an individual breach of law. Why, then, restrain from prosecution where the relevant concert was, initially, formed outside the United Kingoom?...The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant; the attack upon the laws of this country is identical wherever the conspirators happened to commit; the \"conspiracy\" is a complex formed indeed, but not separately completed, at the first meeting of the plotters\". Viscount Dilhorne laid the rule that: \"a conspiracy does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry out the design. It would be highly unreal to say that the conspiracy to carry out the Gunpower plot was completed when the conspirators met and agreed to the plot at Catesby\". in my view, be considered contrary to the rules of international comity for the forces of law and order in England to protect the Queen's peace by arresting them and putting them in trial for conspiracy whether they are British subjects or foreigners and whether or not conspiracy is a crime under the law of the country in which the conspiracy was born.\"\n15.  it was held that the respondents conspired together in England notwithstanding the fact that they were abroad when they entered into the agreement which was the essence of the conspiracy. That agreement was and remained a continuing agreement and they continued to conspire until the offence they were conspiring to commit was in fact committed. Accordingly, it was held that the conspiracy, though entered into abroad, was committed in England and the courts in England and jurisdiction. The ratio emphasizes that acts done in furtherance of continuing conspiracy constitute part of the cause of action and performance of it gives jurisdiction for English Courts to try the accused. In Trecy v. Director of Public Prosecutions 1971 Appeal Cases 537 at 563 to ,(H. L.). the facts of the case were that the appellant therein posted in the Isle of Wright a letter written by him and addressed to Mrs. X in West Germany demanding money with menaces. The letter was received by Mrs. X in West Germany.The appellant was charged with black mail indictable s. 21 of the Theft Act, 1968. While denying the offence, it was contended that the courts in England were devoted of jurisdiction. Over-ruling the said objection, Lord Diplock observed:\n\"The State is under a correlative duty to those who owe obedience to its laws to protect their interests and one of the purposes of criminal law is to afford such protection by determining by threat of punishment conducted by other persons which is calculated to hand to those interests. Comity gives no right to a State to insist that any person may with immunity do physical acts in its own territory which have harmful consequences to persons within the territory of another state. It may be under no obligation in comity to punish those acts itself, but it has no ground from complaint in international law if the State in which the harmful consequences had their effect punishes, when they do enter its territories, persons who did such acts.\"\n16.  Prof. Williams, Glanville in his article \"Venue and the Ambit of Criminal Law [1965] L.Q.R. 518 at 528 stated thus:\n\"Sometimes the problem of determining the place of the crime is assisted by the doctrine of the continuing crime. Some crimes are regarded as being of a continuing nature, and they may accordingly be prosecuted in any jurisdiction in which they are partly committed the partial commission being, in the eye of the law, a total commission.\"\n17.  In the context of conspiracy under the caption inchoate crimes\" It was stated:\n\"The general principle seems to be that jurisdiction over an inchoate crime appertains to the State that would have had jurisdiction had the crime been consummated.\"\n18.  Commenting upon the ratio laid down in Board of Trade v. Owen [1957] Appeal Cases 602, he stated thus:\n\"The seems to follow owen as logical corollary that our courts will assume jurisdiction to punish a conspiracy entered into abroad to commit a crime here. Although the general principle is that crime committed abroad do not become punishable here merely because their evil effects occur here, there may be an exception for inchoate crimes aimed against persons in this country. Since conspiracy is the widest and vaguest of the inchoate crimes, it seems clearly that the rule for conspiracy must apply to more limited crimes of incitement and attempt also.\"\n19.  he further stated that \"the rule of inchoate crimes is therefore an exception from the general principle of territorial jurisdiction. The crime is wholly committed in the State A, yet is justiciable also in State B\".he elucidated that \"certain exceptions are recognised or suggested\". Lord Tucker in own's case (supra) illustrated that a conspiracy D 2 England to violate the laws of a foreign country might be justiciable here if the preferments the conspiracy charged would produce a public mischief within the State or injure a person here by causing him damage, abroad\". be stated that \"as another exception from the rule in Board of, Trade v. Owen (supra it seems from the earlier decision that a conspiracy entered into here will be punishable if the conspirators contem- plates that the illegality may be performed either within British jurisdiction or abroad even though, in the event, the illegality is performed abroad\". His statement of law now receives acceptance by House of Lords in Doot's case. In Halsbury's Law of England, third edition, vol. 10,  while dealing with continuing offence it was stated as under:\n\"A criminal enterprise may consist of continuing act which is done in more places than one or of a series of acts which are done in several places. In such cases, though there is one criminal enterprise, there may be several crimes, and a crime is committed in each place where a complete criminal act is performed although the act may be only a part of the enterprise.\"\n20.  It was further elucidated that: \"What constitutes a complete criminal act is determined by the nature of the crime. Thus, as regards continuing acts, in the case of sending by post or otherwise a libellous or threatening letter, or a letter to provoke a breach of the peace, a crime is committed, both where the letter is posted or otherwise sent, and also where it is received, and the venue may be laid in either place.\n21.  Archbold in Criminal Pleadings, Evidence and Practice, 42nd edition (1985) Chapter 23, Wright on Conspiracies and Agreements  Smith on Crimes and Russel on Crime, 12th edition, stated that conspiracy is a continuing offence and liable to prosecution at the place of making the agreement and also in the country where the acts are committed. Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy. The law had developed several or different models or technics to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration, of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the (,lobe. In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers-, and the retailers knew that the middlemen must buy of importers of someone or another.\nThus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers, and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes to gather in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one another's existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the first instance. Take for instance that three persons hatched a conspiracy in country 'A' to kill 'D' in country 'B' with explosive substance. As far as conspiracy is concerned, it is complete in country 'A' one of them pursuant thereto carried the explosive substance and hands it over to third one in the country 'B' who implants at a place where 'D' frequents and got exploded with remote control. 'D' may be killed or escape or may be diffused.\n22.  The conspiracy continues-till it is executed in country 'B' or frustrated. Therefore, it is a continuing act and all are liable for conspiracy in country 'B' though first two are liable to murder with aid of s. 120-B and the last one is liable under s. 302 or 307 IPC, as the case may be. Conspiracy may be considered to be a march under a banner and a person may join or drop out in the march without the necessity of the change in the text on the banner. In the comity of International Law, in these days, committing offences on international scale is a common feature. The offence of conspiracy would be a useful weapon and there would exist no conflict in municipal laws and the doctrine of autrefoes convict or acquit would extend to such offences. The comities of nations are duty bound to apprehend the conspirators as soon as they set their feet on the country territorial limits and nip the offence in the bud. A conspiracy thus, is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. So long aits performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. Its continuance is a threat to the society against which it was aimed at and would be dealt with as soon as that jurisdiction can properly claim the power to do so. The conspiracy designed or agreed abroad will have the same effect as in India, when part of the acts, pursuant to the agreement are agreed to be finalised or done, attempted or even frustrated and vice versa.\n23.  In K. Satwant Singh v. The State of Punjab [1960] 2 SCR 89 1959 Indlaw SC 113, a Constitution Bench of this Court was to consider as to when s. 188 of the Code would be applicable to a case. The fact therein was that the appellant had cheated the Govt. of Burma whose office was at Shimla punishable under s. 420 IPC. The accused contended that the part of the act was done at Kohlapur where payment was to be made and on that basis the court at Shimla had no jurisdiction to try the offence without prior sanction of the political agent. Considering that question this court held that if the offence of cheating was committed outside British India, the sanction would be necessary but on facts it was held that:\n\"It seems to us, on the facts established in this case, that no part of the offence of cheating was committed by the appellant outside British India. His false representation to the Govt. of Burma that money was due to him was at a place in British India which induced that govt. to order payment of his claims. In fact, he was paid at Lahore at his own request by means of cheques on the Branch of the Imperial Bank of India at Lahore. The delivery of the property of the Govt. of Burma, namely, the money, was made at Lahore, a place in Brithsh India, an d we cannot regard, in the circumstances of the present case, the posting of the cheques at Kohlapur either as delivery of property to the appellant at Kohlapur or payment of his claims at Kohlapur. The entire argument founded on the provisions of S. 188 of the Code, therefore, fails.\"\n24.  Far from helping the appellant the ratio establishes that if an offence was committed in India the need to obtain sanction u/s. 188 is obviated. In Purshottamdas Dalmia v. Stale of West Bengal [1962] 2 SCR 101 1961 Indlaw SC 473, this court, when the appellant was charged with offences punishable under ss. 120B, 466 and 477, the appellant contended that offence of conspiracy was entered into at Calcutta the offences of using the forged documents was committed at Madras. Therefore, the court at Calcutta had no jurisdiction to try the offence under s. 471 read with s. 466, EPC, even though committed in pursuance of the conspiracy and in course of the same transaction. This court held that the desirability of trying the offences of alit he overt acts committed in pursuance of a conspiracy together is obvious and ss. 177 and 239 of the Code leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction. In LN. Mukherjee v. The State of Madras [1962] 2 SCR 116 1961 Indlaw SC 333, it was further held that the court having jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed outside its territorial jurisdiction. This view was further reiterated in R.K. Dalmia v. Delhi Administration [1963] 1 SCR 253 1962 Indlaw SC 534 and Banwari Lal Jhunjhunwala and Ors. v. Union of India and Anr. 1963] supp. 2 SCR 338 1962 Indlaw SC 462. Therein it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction. The charges framed therein under s. 409 read with ss. 120B, 420, IPC and s. 5(1) (D) read with s. 5(2) of the Prevention of Corruption Act were upheld.\n25.  Thus we hold that sanction u/s. 188 is not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. Conspiracy was initially hatched at Chandigarh and though itself is a completed offence, being continuing offence, even accepting appellant's case that he was at Dubai and part of conspiracy and overt acts in furtherance thereof had taken place at Dubai and partly at Chandigarh; and in consequence thereof other offences had been ensued. Since the. offences have been committed during the continuing course of transaction culminated in cheating P.N.B. at Chandigarh, the need to obtain sanction for various offences under proviso to s. 188 is obviated.Therefore, there is no need to obtain sanction from Central Govt. The case may be different if the offences were committed out side India and are completed in themselves without conspiracy. Perhaps that question may be different for which we express no opinion on the facts of this case. The ratio in Fakhruila Khan has no application to the facts in this case. Therein the accused were charged for offences under s. 420, 419, 467 and 468 and the offences were committed in native State, Mysore. As a result the courts in British India i.e. Madras province had no jurisdiction to try the offence without prior sanction. Equally in Verghese's case the offences charged under s. 409, IPC had also, been taken place outside British India. Therefore, it was held that the sanction under s, 188 was necessary. The ratio in Kailash Sharma's case is not good at law. The appeal is accordingly dismissed.\n26.  R.M. SAHAI J. While agreeing with Brother Ramaswamy, J., I propose to add a few words. Prosecution of the appellant under Section 120B read with S. 420 and 471 of the Indian Penal Code (in brief 'IPC') was assailed for absence of sanction under S. 188 of the Criminal Procedure Code (in brief 'Cr. P. C.'). Two submissions were advanced, one that even though criminal conspiracy was itself an offence but if another offence was committed in pursuance of it outside India then sanction was necessary; second-an offence is constituted of a number of ingredients and even if one of them was committed outside the country S. 188 of the Cr. P.C. was attracted.\n27.  Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one-commission of an offence; second by an Indian citizen; and third-that it should have been committed outside the country. Out of the three there is no dispute that the appellant is an Indian citizen. But so far the other two are concerned the allegations in the complaint are that the conspiracy to forge and cheat the bank was hatched by the appellant and others in India. Whether it was so or not, cannot be gone into at this stage.\n28.  What is the claim then? Two fold one the appellant was in Dubai at the relevant time when the offence is alleged to have been committed. Second, since the bills of lading and exchange were prepared and were submitted to the Emirates National Bank at Dubai and the Payment too was received at Emirates National Bank in Dubai, the alleged offence of forgery and cheating were committed outside India. Is that so? Can the offence of conspiracy or cheating or forgery on these allegations be said to have been committed outside the country? Substantive law of extra-territory in respect of criminal offences is provided for by S. 4 of the IPC and the procedure to inquire and try it is contained the S. 188 Cr.P.C. Effect of these sections is that an offence committed by an Indian citizen, outside the country is deemed to have been committed in India. Proviso to S. 188 Cr. P.C. however provides the safeguard for the NRI to guard against any unwarranted harassment by directing, \"that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.\n29.  Since the proviso begins with a non obstinate clause its observance is mandatory. But is would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in clause 'n' of S. 2 of the Cr.P.C. has been committed and it has been committed outside the country.\n30.  What has to be examined at this stage is if the claim of the appellant that the offence under Section 120B read with S. 420 and S. 471 of the IPC were committed outside the country. An offence is defined in the Cr. P.C. to mean an act or omission made punishable by any law for the time being in force. None of the offences for which the appellant has been charged has residence as one of its ingredients. The jurisdiction to inquire or try vests under S. 177 in the Court in whose local jurisdiction the offence is committed. It is thus the commission of offence and not the residence of the accused which is decisive of jurisdiction. When two or more persons agree to do or cause to be done an illegal act or an act which is illegal by illegal means such agreement is designated a criminal conspiracy under Section 120A of the IPC. The ingredients of the offence is agreement and not the residence. meeting of minds of more than two persons is the primary requirement. Even if it is assumed that the appellant was at Dubai and he entered into an agreement with his counterpart sitting in India to do an illegal act in India the offence of conspiracy came into being when agreement was reached between the two. The two minds met when talks oral or in writing took place in India. Therefore, the offence of conspiracy cannot be said to have been committed outside the country. In Mobarik Ali Ahmed v. The State of Bombay. AIR 1957 SC 857 1957 Indlaw SC 43 this court while dealing with the question of jurisdiction of the Courts to try an offence of cheating committed by a foreign national held that the offence of cheating took place only when representation was made by the accused sitting in Karachi to the complaints sitting in Bombay. The argument founded on corporeal presence was rejected and it was observed:\n\"What is, therefore, to be seen is whether there is any reason to think that a foreigner not corporeally present at the time of the commission of the commission of the offence does not fall within the range of persons punishable therefor under the Code. It appears to us that the answer must be in the negative unless there is any recognised legal principle on which such exclusion can be founded or the language of the Code compels such a construction.\"\n31.  If a foreign national is amenable to jurisdiction under S. 179 of the Cr. P.C. a NRI cannot claim that the offence shall be deemed to have been committed outside the country merely because he was not physically present. Preparations of bill of lading at Dubai or payment at Dubai were not isolated acts. They were part of chain activities between the appellant and his associates with whom he entered into agreement to cheat the bank at Chandigarh. Any isolated act or omission committed at Dubai was insufficient to constitute an offence. The illegal act of dishonestly inducing the bank at Chandigarh was committed not by preparation of bill at Dubai but its presentation in pursuance of agreement to cheat. The submission thus founded was on residence or on preparation of bills of lading or encashment at Dubai are of no consequence. Nor is there any merit in the submission that even part of the offence would attract S. 189 as the section operates when offence is committed outside India. An offence is committed when all the ingredients are satisfied. The section having used the word offence it cannot be understood as part of the offence. S. 179 Cr.P.C. empowers a court to try an offence either at a place where the offence is committed or the consequences ensue. On the allegations in the complaint the act or omissions were committed in India. In any case the consequence of conspiracy, cheating and forging having taken place at Chandigarh the offence was not committed outside the country therefore the provisions of Sec. 188 Cr. P.C. were not attracted.\nOrder:\n32.  For reasons given by us in our concurring but separate orders the appeal fails and is dismissed. Parties shall bear their own costs.\nAppeal dismissed.\n"}
+{"id": "tST18iwItC", "title": "", "text": "Alister Anthony Pareira v State Of Maharashtra\nSupreme Court of India\n\n12 January 2012\nCRIMINAL APPEAL NOS. 1318-1320 OF 2007\nThe Judgment was delivered by : R. M. Lodha, J.\n1.  On the South-North Road at the East side of Carter Road, Bandra (West), Mumbai in the early hours of November 12, 2006 between 3.45 - 4.00 a.m., a car ran into the pavement killing seven persons and causing injuries to eight persons. The appellant - Alister Anthony Pareira - was at the wheels. He has been convicted by the High Court for the offences punishable under Sections 304 Part II, 338 and 337 of the Indian Penal Code, 1860 (IPC).\n2.  The prosecution case against the appellant is this: the repair and construction work of the Carter Road, Bandra (West) at the relevant time was being carried out by New India Construction Company. The labourers were engaged by the construction company for executing the works. The temporary sheds (huts) were put up for the residence of labourers on the pavement. In the night of November 11, 2006 and November 12, 2006, the labourers were asleep in front of their huts on the pavement. Between 3.45 to 4.00 a.m., that night, the appellant while driving the car (corolla) bearing Registration No. MH-01-R-580 rashly and negligently with knowledge that people were asleep on footpath rammed the car over the pavement; caused death of seven persons and injuries to eight persons. At the time of incident, the appellant was found to have consumed alcohol. A liquor bottle was recovered from the appellant's car. On his medical examination, he was found to have 0.112% w/v liquor (ethyl alcohol) in his blood. The appellant was fully familiar with the area being the resident of Carter Road.\n3.  The contractor-Panchanadan Paramalai Harijan (PW-2) - who had engaged the labourers and witnessed the incident reported the matter immediately to the Khar Police Station. His statement (Ex. 13) was recorded and based on that a first information report (No. 838) was registered under Section 304, 279, 336, 337, 338 and 427 IPC; Section 185 of the Motor Vehicles Act, 1988 and Section 66 (1)(b) of Bombay Prohibition Act, 1949.\n4.  On completion of investigation, the charge sheet was submitted against the appellant by the Investigating Officer in the court of Magistrate having jurisdiction. The appellant was committed to the Court of Sessions and was tried by 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai.\n5.  The indictment of the appellant was on two charges. The two charges read:-\n\"(i) that on November 12, 2006 between 3.45 to 4.00 a.m. you have driven the car bearing No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons slept over footpath and thereby caused the death of seven persons who were sleeping on footpath on Carter Road and thereby committed an offence punishable under Section 304 Part II IPC.\n(ii) on above date, time and place you have driven the vehicle in rashly and negligent manner and thereby caused grievous injury to seven persons who were sleeping on footpath and thereby committed an offence punishable under Section 338 IPC.\"\n6.  The prosecution, to prove the above charges against the appellant, tendered oral as well as documentary evidence. In all, 18 witnesses, namely, Dr. Nitin Vishnu Barve (PW-1), Panchanadan Paramalai Harijan (PW-2), Ramchandra Chakrawarti (PW-3), Pindi Ramu (PW-4), Sriniwas Raman Pindi (PW-5), Smt. Mariamma Shingamana (PW-6), Smt. Prema Chingaram (PW-7), Jagan Singaram (PW-8), Sigamani Shankar Pani (PW-9), Mallikarjun Bajappa Motermallappa (PW-10), J.C. Cell Mendosa (PW-11), Praveen Sajjan Mohite (PW- 12), Limbaji Samadhan Ingle (PW-13), Dr. Sharad Maniklal Ruia (PW-14), Rajendra Nilkanth Sawant (PW- 15), Basraj Sanjeev Mehetri (PW-16), Meenakshi Anant Gondapatil (PW-17) and Somnath Baburam Phulsunder (PW-18) were examined. The complaint, spot panchnama along with sketch map, C.A. Reports and other documents were also proved.\n7.  The statement of the appellant under Section 313 of the Criminal Procedure Code, 1973 (for short, 'the Code') was recorded. He admitted that he was driving the car no. MH-01-R-580 at the relevant time and the accident did occur but his explanation was that it happened on account of failure of engine and mechanical defect in the car and there was no negligence or rashness on his part.\n8.  The 2nd Adhoc Additional Sessions Judge, Sewree, Mumbai, on April 13, 2007 convicted the appellant for the offences punishable under Sections 304A and 337 IPC. The court sentenced him to suffer simple imprisonment of six months with fine of Rs. 5 lakhs for the offence under Section 304A IPC and in default further suffer simple imprisonment of one month and simple imprisonment of 15 days for the offence under Section 337 IPC. Both the sentences were ordered to run concurrently.\n9.  On April 19, 2007, the Bombay High Court took suo motu cognizance of the judgment and order dated April 13, 2007 passed by the 2nd Adhoc Additional Sessions Judge, Sewree and issued notice to the State of Maharashtra, the appellant and to the heirs of the deceased and also to the injured persons.\n10.  The State of Maharashtra preferred criminal appeal (No. 566 of 2007) under Section 378(3) of the Code challenging the acquittal of the appellant under Sections 304 Part II and 338 IPC. Another criminal appeal (No. 430 of 2007) was also preferred by the State of Maharashtra seeking enhancement of sentence awarded to the appellant for the offence under Section 304A and Section 337 IPC by the trial court.\n11.  The appellant also preferred criminal appeal (No. 475/2007) for setting aside the judgment and order dated April 13, 2007 passed by the trial court convicting him under Section 304A and Section 337 IPC and the sentence awarded to him by the trial court.\n12.  All these matters were heard together by the High Court and have been disposed of by the common judgment on September 6, 2007. The High Court set aside the acquittal of the appellant under Section 304 IPC and convicted him for the offences under Section 304 Part II, Section 338 and Section 337 IPC. The High Court sentenced the appellant to undergo rigorous imprisonment for three years for the offence punishable under Section 304 Part II IPC with a fine of Rs. 5 lakhs. On account of offence under Section 338 IPC, the appellant was sentenced to undergo rigorous imprisonment for a term of one year and for the offence under Section 337 IPC rigorous imprisonment for six months. The High Court noted that fine amount as per the order of the trial court had already been distributed to the families of victims.\n13.  It is from the above judgment of the High Court that the present appeals have been preferred by the appellant.\n14.  A great deal of argument in the hearing of the appeals turned on the indictment of the appellant on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC and his conviction for the above offences and also under Section 337 IPC. Mr. U.U. Lalit, learned senior counsel for the appellant argued that this was legally impermissible as the charges under Section 304 Part II IPC and Section 338 IPC were mutually destructive and the two charges under these Sections cannot co-exist. His submission was that the appellant was charged for the above offences for committing a single act i.e., rash or negligent for causing injuries to eight persons and at the same time committed with knowledge resulting in death of seven persons which is irreconcilable and moreover that has caused grave prejudice to the appellant resulting in failure of justice.\n15.  Mr. U.U. Lalit, learned senior counsel also argued that no question was put to the appellant in his statement under Section 313 of the Code about his drunken condition or that he was under the influence of alcohol and, thus, had knowledge that his act was likely to result in causing death. CA Report (Ex. 49) that blood and urine of the appellant had alcohol content and the evidence of PW-1 that he found the appellant in drunken condition and his blood sample was taken were also not put to the appellant. These incriminating evidences, learned senior counsel submitted, cannot form basis of conviction. The conclusion arrived at by the Investigating Officers (PW-17 and PW-18) regarding drunken condition of the appellant which was put to the appellant in his statement under Section 313 of the Code was of no legal use. Moreover, PW-17 and PW-18 have not deposed before the court that the appellant was found in drunken condition much less under the influence of liquor. Learned senior counsel would thus submit that the sole basis of the appellant's conviction under Section 304 Part-II IPC that the appellant had knowledge that his reckless and negligent driving in a drunken condition could result in serious consequences of causing a fatal accident cannot be held to have been established. In this regard, learned senior counsel relied upon two decisions of this Court, namely,\n(i) Ghulam Din Buch & Ors. v. State of J & K (1996 (9) SCC 239 1996 Indlaw SC 2671) and\n(ii) Kuldip Singh & Ors. v. State of Delhi (2003 (12) SCC 528 2003 Indlaw SC 1086)\n16.  Mr. U.U. Lalit vehemently contended that no charge was framed that the appellant had consumed alcohol. Moreover, he submited that no reliance could be placed on C.A. Report (Ex. 49) as the evidence does not satisfactorily establish that the samples were kept in safe custody until they reached the CFSL. Moreover, no charge was framed by the court against the appellant under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay Prohibition Act, 1949.\n17.  Learned senior counsel argued that appellant's conviction under Section 304A, 338 and 337 IPC was not legally sustainable for more than one reason. First, no charge under Section 304A IPC was framed against the appellant as he was charged only under Section 304 Part II IPC and Section 338 IPC which are not the offences of the same category. In the absence of charge under Section 304A IPC, the appellant cannot be convicted for the said offence being not a minor offence of Section 304 Part II IPC. The charge under Section 338 IPC does not help the prosecution as by virtue of that charge the appellant cannot be convicted under Section 304A IPC being graver offence than Section 338 IPC. Secondly, the accident had occurred not on account of rash or negligent act of the appellant but on account of failure of the engine. He referred to the evidence of Rajendra Nilkanth Sawant (PW-15) who deposed that he could not state if the accident took place due to dislodging of right side wheel and dislodging of the engine from the foundation. In the absence of any firm opinion by an expert as regards the cause of accident, the possibility of the accident having occurred on account of mechanical failure cannot be ruled out. Thirdly, in the absence of medical certificate that the persons injured received grievous injuries, charge under Section 338 IPC was not established.\n18.  Learned senior counsel lastly submitted that in case the charges against appellant are held to be proved, having regard to the facts, namely, the age of the appellant at the time of the accident; the appellant being the only member to support his family - mother and unmarried sister - having lost his father during the pendency of the present appeals; the fine and compensation of Rs. 8.5 lakhs having been paid and the sentence of two months already undergone, the appellant may be released on probation of good conduct and behavior or, in the alternative, the sentence may be reduced to the period already undergone by the appellant.\n19.  On the other hand, Mr. Sanjay Kharde, learned counsel for the State of Maharashtra stoutly defended the judgment of the High Court. He argued that the fact that labourers were asleep on the footpath has gone unchallenged by the defence. He would submit that the drunken condition of the appellant is fully proved by the evidence of PW-1. Further, PW-1 has not at all been cross-examined on this aspect. The recovery of liquor bottle is proved by the evidence of spot panchas (PW-11 and PW-16). They have not been cross examined in this regard. PW-17 collected blood sample of the appellant from PW-1 and then PW-18 forwarded the blood sample to the chemical analyzer along with the forwarding letter. The appellant has not challenged C.A. Report (Ex. 49) in the cross-examination of PW-18.\n20.  Learned counsel for the State submitted that the involvement of the appellant in the incident has been fully established by the evidence of PW-13 who was an eye-witness and working as a watchman at construction site. Moreover, the appellant was apprehended immediately after the incident. There is no denial by the appellant about occurrence of the accident. The defence of the appellant was that the accident happened due to engine and mechanical failure but the appellant has failed to probablise his defence. He referred to the evidence of PW-15 - motor vehicle inspector - to show that the brake and the gear of the car were operative.\n21.  Learned counsel for the State referred to the evidence of injured witnesses and also the evidence of PW-12 and PW-14 who issued medical certificates and submitted that the prosecution has established beyond reasonable doubt that the knowledge was attributable to the accused as he was driving the car in a drunken condition at a high speed. The accused had the knowledge, as he was resident of the same area, that the labourers sleep at the place of occurrence.\n22. Learned counsel submitted that the evidence on record and the attendant circumstances justify attributability of actual knowledge to the appellant and the High Court rightly held so. In this regard, the learned counsel for the State placed reliance upon two decisions of this Court in Jai Prakash v. State (Delhi Administration) (1991 (2) SCC 32 1991 Indlaw SC 651) and Joti Parshad v. State of Haryana (1993 Supp (2) SCC 497 1992 Indlaw SC 92). He disputed that there was any error in the framing of charge. He would contend that in any case an error or omission in framing of charge or irregularity in the charge does not invalidate the conviction of an accused. The omission about the drunken condition of the accused in the charge at best can be said to be an irregularity but that does not affect the conviction. In this regard, he relied upon Section 464 of the Code and the decisions of this Court in Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116 1955 Indlaw SC 80), Dalbir Singh v. State of U.P. (2004 (5) SCC 334 2004 Indlaw SC 247) and Annareddy Sambasiva Reddy and others v. State of Andhra Pradesh (2009 (12) SCC 546 2009 Indlaw SC 522).\n23.  Mr. Sanjay Kharde submitted that by not putting C.A. Report (Ex. 49) to the appellant in his statement under Section 313 of the Code, no prejudice has been caused to him as he admitted in his statement under Section 313 of the Code that he was fully aware about the statement of the witnesses and exhibits on record. In this regard, learned counsel relied upon decision of this Court in Shivaji Sahabrao Bobade and another v. State of Maharashtra (1973 (2) SCC 793 1973 Indlaw SC 181).\n24.  Lastly, learned counsel for the State submitted that the circumstances pointed out by the learned senior counsel for the appellant do not justify the benefit of probation to the appellant or reduction of the sentence to the period already undergone. He submitted that seven innocent persons lost their lives and eight persons got injured due to the act of the appellant and, therefore, no sympathy was called for. He submitted that sentence should be proportionate to the gravity of offence. He relied upon the decisions of this Court in State of Karnataka v. Krishnappa (2000 (4) SCC 75 2000 Indlaw SC 237), Dalbir Singh v. State of Haryana (2000 (5) SCC 82 2000 Indlaw SC 255), Shailesh Jasvantbhai and another v. State of Gujarat and others (2006 (2) SCC 359 2006 Indlaw SC 571) and Manish Jalan v. State of Karnataka (2008 (8) SCC 225 2008 Indlaw SC 1059).\n25.  On the contentions of the learned senior counsel for the appellant and the counsel for the respondent, the following questions arise for our consideration :\n(i) Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC is mutually destructive and legally impermissible? In other words, whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC for a single act of the same transaction?\n(ii) Whether by not charging the appellant of 'drunken condition' and not putting to him the entire incriminating evidence let in by the prosecution, particularly the evidence relating to appellant's drunken condition, at the time of his examination under Section 313 of the Code, the trial and conviction of the appellant got affected?\n(iii) Whether prosecution evidence establishes beyond reasonable doubt the commission of the offences by the appellant under Section 304 Part II, IPC, Section 338 IPC and Section 337 IPC?\n(iv) Whether sentence awarded to the appellant by the High Court for the offence punishable under Section 304 Part II IPC requires any modification?\nre: question (i)\n26.  Section 304 IPC provides for punishment for culpable homicide not amounting to murder. It reads as under:\n\"S.304. - Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death\".\n27.  The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment. For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is 'culpable homicide not amounting to murder' - since Section 304 does not define this expression - Sections 299 and 300 IPC have to be seen. Section 299 IPC reads as under:\n\"S.-299. - Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.\"\n28.  To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act: (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death.\n29.  Section 300 deals with murder and also provides for exceptions. The culpable homicide is murder if the act by which the death is caused is done:\n(1) with the intention of causing death,\n(2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or\n(3) with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death, or\n(4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The exceptions provide that the culpable homicide will not be murder if that act is done with the intention or knowledge in the circumstances and subject to the conditions specified therein. In other words, the culpable homicide is not murder if the act by which death is caused is done in extenuating circumstances and such act is covered by one of the five exceptions set out in the later part of Section 300.\n30.  It is not necessary in the present matter to analyse Section 299 and Section 300 in detail. Suffice it to say that the last clause of Section 299 and clause 'fourthly' of Section 300 are based on the knowledge of the likely or probable consequences of the act and do not connote any intention at all.\n31.  Reference to few other provisions of IPC in this regard is also necessary. Section 279 makes rash driving or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to any other person an offence and provides for punishment which may extend to six months, or with fine which may extend to Rs. 1000/-, or with both.\n32.  Causing death by negligence is an offence under Section 304A. It reads :\n\"S.304A. - Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.\"\n33.  Section 336 IPC says that whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to Rs. 250/-, or with both.\n34.  Section 337 IPC reads as follows :\n\"S. 337. - Causing hurt by act endangering life or personal safety of others.-Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.\"\n35.  Section 338 IPC is as under :\n\"S. 338. - Causing grievous hurt by act endangering life or personal safety of others. -Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.\"\n36.  In Empress of India v. Idu Beg (1881 (3) All 776), Straight J., explained the meaning of criminal rashness and criminal negligence in the following words: criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.\n37.  The above meaning of criminal rashness and criminal negligence given by Straight J. has been adopted consistently by this Court.\n38.  Insofar as Section 304A IPC is concerned, it deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of Section 304A IPC is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304A IPC is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A are : (1) death of human being; (2) the accused caused the death and (3) the death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.\n39.  Like Section 304A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act.\n40.  The scheme of Sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that these offences are punished because of the inherent danger of the acts specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life. The question is whether indictment of an accused under Section 304 Part II and Section 338 IPC can co-exist in a case of single rash or negligent act. We think it can. We do not think that two charges are mutually destructive. If the act is done with the knowledge of the dangerous consequences which are likely to follow and if death is caused then not only that the punishment is for the act but also for the resulting homicide and a case may fall within Section 299 or Section 300 depending upon the mental state of the accused viz., as to whether the act was done with one kind of knowledge or the other or the intention. Knowledge is awareness on the part of the person concerned of the consequences of his act of omission or commission indicating his state of mind. There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known.\n41.  Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law - in view of the provisions of the IPC - the cases which fall within last clause of Section 299 but not within clause 'fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.\n42.  A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC.\n43.  There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC.\n44.  In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences.\n45.  By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissible course.\n46.  In Prabhakaran Vs. State of Kerala (2007 (14) SCC 269 2007 Indlaw SC 685), this Court was concerned with the appeal filed by a convict who was found guilty of the offence punishable under Section 304 Part II IPC. In that case, the bus driven by the convict ran over a boy aged 10 years. The prosecution case was that bus was being driven by the appellant therein at the enormous speed and although the passengers had cautioned the driver to stop as they had seen children crossing the road in a queue, the driver ran over the student on his head. It was alleged that the driver had real intention to cause death of persons to whom harm may be caused on the bus hitting them. He was charged with offence punishable under Section 302 IPC. The Trial Court found that no intention had been proved in the case but at the same time the accused acted with the knowledge that it was likely to cause death, and, therefore, convicted the accused of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for five years and pay a fine of Rs.15,000/- with a default sentence of imprisonment for three years. The High Court dismissed the appeal and the matter reached this Court. While observing that Section 304A speaks of causing death by negligence and applies to rash and negligent acts and does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death and that Section 304A only applies to cases in which without any such intention or knowledge death is caused by a rash and negligent act, on the factual scenario of the case, it was held that the appropriate conviction would be under Section 304A IPC and not Section 304 Part II IPC. Prabhakaran (2007 (14) SCC 269 2007 Indlaw SC 685) does not say in absolute terms that in no case of an automobile accident that results in death of a person due to rash and negligent act of the driver, the conviction can be maintained for the offence under Section 304 Part II IPC even if such act (rash or negligent) was done with the knowledge that by such act of his, death was likely to be caused. Prabhakaran (2007 (14) SCC 269 2007 Indlaw SC 685)  turned on its own facts. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC.\nre: question (ii)\n47.  On behalf of the appellant it was strenuously urged that the conviction of the appellant by the High Court for the offence under Section 304 Part II IPC rests solely on the premise that the appellant had knowledge that his reckless or negligent driving in a drunken condition could result in serious consequences of causing fatal accident . It was submitted that neither in the charge framed against the appellant, the crux of the prosecution case that the appellant was in a drunken condition was stated nor incriminating evidences and circumstances relating to rashness or negligence of the accused in the drunken condition were put to him in the statement under Section 313 of the Code.\n48.  It is a fact that no charge under Section 185 of the Motor Vehicles Act, 1988 and Section 66(1)(b) of the Bombay Prohibition Act, 1949 was framed against the appellant. It is also a fact that in the charge framed against the appellant under Section 304 Part II IPC, the words 'drunken condition' are not stated and the charge reads; 'on November 12, 2006 between 3.45 to 4.00 a.m. he was driving the car bearing Registration No. MH-01-R-580 rashly and negligently with knowledge that people are sleeping on footpath and likely to cause death of those persons rammed over the footpath and thereby caused death of 8 persons who were sleeping on footpath on Carter Road, Bandra (West), Mumbai and thereby committed an offence punishable under Section 304 Part II IPC'. The question is whether the omission of the words, 'in drunken condition' after the words 'negligently' and before the words 'with knowledge' has caused any prejudice to the appellant.\n49.  Section 464 of the Code reads as follows:\n\"S.464. - Effect of omission to frame, or absence of, or error in, charge.-\n(1) No finding sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.\n(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-\n(a) In the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge.\n(b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:\"\n50. Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.\n51.  The above provision has come up for consideration before this Court on numerous occasions. It is not necessary to refer to all these decisions. Reference to a later decision of this Court in the case of Anna Reddy Sambasiva Reddy (2009 (12) SCC 546 2009 Indlaw SC 522) delivered by one of us (R.M. Lodha, J.) shall suffice. In paras 39-40 of Anna Reddy Sambasiva Reddy (2009 (12) SCC 546 2009 Indlaw SC 522) it has been stated as follows:\n\"In unmistakable terms, Section 464 specifies that a finding or sentence of a court shall not be set aside merely on the ground that a charge was not framed or that charge was defective unless it has occasioned in prejudice. Because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been adversely affected thereby. If the ingredients of the section are obvious or implicit, conviction in regard thereto can be sustained irrespective of the fact that the said section has not been mentioned.\nA fair trial to the accused is a sine quo non in our criminal justice system but at the same time procedural law contained in the Code of Criminal Procedure is designed to further the ends of justice and not to frustrate them by introduction of hypertechnicalities. Every case must depend on its own merits and no straightjacket formula can be applied; the essential and important aspect to be kept in mind is: has omission to frame a specific charge resulted in prejudice to the accused.\"\n52.  In light of the above legal position, if the charge under Section 304 Part II IPC framed against the appellant is seen, it would be clear that the ingredients of Section 304 Part II IPC are implicit in that charge. The omission of the words 'in drunken condition' in the charge is not very material and, in any case, such omission has not at all resulted in prejudice to the appellant as he was fully aware of the prosecution evidence which consisted of drunken condition of the appellant at the time of incident.\n53.  PW-1 is the doctor who examined the appellant immediately after the incident. In his deposition he stated that he had taken the blood of the accused as he was found in drunken condition. On behalf of the appellant PW-1 has been cross examined but there is no cross-examination of PW-1 on this aspect.\n54.  It is a fact that evidence of PW-1, as noticed above, has not been put to the appellant in his statement under Section 313 of the Code but that pales into insignificance for want of cross examination of PW-1 in regard to his deposition that the appellant was found in drunken condition and his blood sample was taken.\n55.  CA Report (Ex. 49) too has not been specifically put to the appellant at the time of his examination under Section 313 of the Code but it is pertinent to notice that PW-18 (Investigating Officer) deposed that he had forwarded blood sample of the accused and the bottle found in the car to the chemical analyzer (CA) on 14.11.2006 and 15.11.2006 respectively. He further deposed that he collected the medical certificate from Bhabha Hospital and he had received the CA report (Ex. 49). PW-18 has also not been cross examined by the defence in respect of the above. In the examination under Section 313 of the Code the following questions were put to the appellant: Question 9:\n\"What you want to say about the further evidence of above two witnesses that police while drawing spot panchanama seized one ladies chappal, remote, lighter, cigarette perfume and so called liquor bottle from the vehicle i.e. MH-01-R-580?\"\nThe appellant answered 'I do not know' Question 16:\n\"What you want to say about the evidence of Meenakashi Patil who has stated that initial investigation as carried out by her and further investigation was entrusted to PI Phulsunder from 13.11.2006 and on due investigation police concluded themselves that your rash and negligence driving caused the death of seven persons and injury to the eight persons by vehicle No. MH-01-R-580 by consuming alcohol so police have charge sheeted you?\"\nHe answered, 'It is false'.\n56.  The above questions in his examination under Section 313 of the Code show that the appellant was fully aware of the prosecution evidence relating to his rash and negligent driving in the drunken condition.\n57. In the circumstances, by not putting to the appellant expressly the CA report (Ex. 49) and the evidence of PW 1, no prejudice can be said to have been caused to the appellant. The words of P.B. Gajendragadkar, J. (as he then was) in Jai Dev Vs. State of Punjab (AIR 1963 SC 612 1962 Indlaw SC 197) speaking for three-Judge Bench with reference to Section 342 of the Code (corresponding to Section 313 of the 1973 Code) may be usefully quoted:\n\"the ultimate test in determining whether or not the accused has been fairly  examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. . . . . . . . .\".\n58.  In Shivaji Sahabrao Bobade and Anr. Vs. State of Maharashtra (1973 (2) SCC 793 1973 Indlaw SC 181) a 3-Judge Bench of this Court stated:\n\"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed.\nHowever, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction\".\n59.  The above decisions have been referred in Asraf Ali Vs. State of Assam (2008 (16) SCC 328 2008 Indlaw SC 1079). The Court stated:\n\"Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.\nThe object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice.\nIn certain cases when there is perfunctory examination under Section 313 of the Code, the matter is remanded to the trial court, with a direction to retry from the stage at which the prosecution was closed\".\n60.  From the above, the legal position appears to be this : the accused must be apprised of incriminating evidence and materials brought in by the prosecution against him to enable him to explain and respond to such evidence and material. Failure in not drawing the attention of the accused to the incriminating evidence and inculpatory materials brought in by prosecution specifically, distinctly and separately may not by itself render the trial against the accused void and bad in law; firstly, if having regard to all the questions put to him, he was afforded an opportunity to explain what he wanted to say in respect of prosecution case against him and secondly, such omission has not caused prejudice to him resulting in failure of justice. The burden is on the accused to establish that by not apprising him of the incriminating evidence and the inculpatory materials that had come in the prosecution evidence against him, a prejudice has been caused resulting in miscarriage of justice.\n61.  Insofar as present case is concerned, in his statement under Section 313, the appellant was informed about the evidence relating to the incident that occurred in the early hours (between 3.45 a.m. to 4.00 a.m.) of November 12, 2006 and the fact that repairs were going on the road at that time. The appellant accepted this position. The appellant was also informed about the evidence of the prosecution that vehicle No. MH-01-R-580 was involved in the said incident. This was also accepted by the appellant. His attention was brought to the evidence of the eye-witnesses and injured witnesses, namely, PW-2, PW-3, PW-4, PW-5, PW-6, PW- 7, PW-8, PW-9 and PW-10 that at the relevant time they were sleeping on the pavement of Carter Road, Bandra (West) outside the temporary huts and there was an accident in which seven persons died and eight persons got injured. The attention of the appellant was also drawn to the evidence of the spot panchas (PW-11 and PW-16) that they had noticed that the car no. MH-01-R- 580 at the time of preparation of spot panchnama was in a heavily damaged condition with dislodged right side wheel and some blood was found on the earth and the huts were found damaged. The prosecution evidence that the appellant was seen driving car no. MH-01-R-580 at high speed from Khar Danda side and that rammed over the footpath and crushed the labourers sleeping there was also brought to his notice. The evidence of the mechanical expert (PW-15) that he checked the vehicle and found no mechanical defect in the car was also brought to his notice. During investigation, the police concluded that the rash and negligent driving of the appellant by consuming alcohol caused the death of seven persons and injury to the eight persons. The conclusion drawn on the completion of investigation was also put to him. The appellant's attention was also invited to the materials such as photographs, mechanical inspections of the car, seized articles, liquor bottle, etc. Having regard to the above, it cannot be said that the appellant was not made fully aware of the prosecution evidence that he had driven the car rashly or negligently in a drunken condition. He had full opportunity to say what he wanted to say with regard to the prosecution evidence.\nThe High Court in this regard held as under :\n\"The salutary provision of section 313 of the Code have been fairly, or at least substantially, complied with by the trial court, in the facts and circumstances of this case. The real purpose of putting the accused at notice of the incriminating circumstances and requiring him to offer explanation, if he so desires, has been fully satisfied in the present case. During the entire trial, copies of the documents were apparently supplied to the accused, even prior to the framing of the charge. After such charge was framed, all the witnesses were examined in the presence of the accused and even limited questions regarding incriminating material put by the court to the accused in his statement under Section 313 of the Code shows that the entire prosecution case along with different exhibits was put to the accused. He in fact did not deny the suggestions that the witnesses had been examined in his presence and he was aware about the contents of their statements. All this essentially would lead to only one conclusion that the contention raised on behalf of the accused in this regard deserves to be rejected. While rejecting this contention we would also observe that the admission or confession of the accused in his statement under section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was conducted on this line.\"\n62. We are in agreement with the above view of the High Court.\nre: question (iii )\n63.  The crucial question now remains to be seen is whether the prosecution evidence establishes beyond reasonable doubt the commission of offence under Section 304 Part II IPC, Section 338 IPC and Section 337 IPC against the appellant.\n64.  The appellant has not denied that in the early hours of November 12, 2006 between 3.45-4.00 a.m. on the South-North Road at the East side of Carter Road, Bandra (West), Mumbai, the car bearing registration no. MH-01-R-580 met with an accident and he was at the wheels at that time. PW-13 was working as a watchman at the construction site. He witnessed the accident. He deposed that he noticed that in the night of November 11, 2006 and November 12, 2006 at about 4.00 a.m., the vehicle bearing no. MH-01-R-580 came from Khar Danda side; the vehicle was in high speed and rammed over the pavement and crushed the labourers. He deposed that 14-15 persons were sleeping at that time on the pavement. He stated that he used to take rounds during his duty hours. His evidence has not at all been shaken in the cross-examination.\n65.  PW-2 is the complainant. He lodged the complaint of the incident at the Khar Police Station. In his deposition, he has stated that he was contractor with New India Construction Co. and nine labourers were working under him. At Carter Road, the work of road levelling was going on. He and other persons were sleeping in a temporary hutment near railway colony. The labourers were sleeping on the pavement. When he was easing himself, at about 3.30 a.m. of November 12, 2006, he heard the commotion and saw the smoke coming out of the vehicle that rammed over the footpath. Six persons died on the spot; one expired in the hospital and eight persons sustained injuries. He confirmed that the police recorded his complaint and the complaint (Ex. 13) was read over to him by the police and was correct. He has been cross-examined by the defence but there is no cross examination in respect of his statement that he had got up to ease himself at about 3.30 a.m. on November 12, 2006 and he heard the commotion and saw smoke coming out of the vehicle. He has denied the suggestion of the defence that road was blocked to some extent for construction purpose. He denied that he had filed false complaint so as to avoid payment of compensation to the workers.\n66.  The first Investigating Officer (PW-17), who proceeded along with the staff no sooner the message was received from Khar 1 Mobile Van that accident had taken place at Carter Road, near Railway Officers Quarters and reached the spot, has deposed that on her arrival at the spot, she came to know that the labourers who were sleeping on footpath were run over by the vehicle bearing No. MH-01-R-580. She shifted the injured to the Bhabha Hospital; went to the Khar police station for recording the complaint and then came back to the site of accident and prepared Panchnama (Ex. 28) in the presence of Panchas PW-11 and PW-16. Exhibit 28 shows that the accident spot is towards south of railway quarters gate and is at a distance of about 110 feet. The length of footpath between railway quarters gate and Varun Co-operative Housing Society gate is about 160 feet. The accident spot is about 50 feet from the Varun Co-operative Housing Society gate. On the footpath, between railway quarters gate and Varun Co-operative Housing Society gate, the temporary sheds were set up. The vehicle (Toyota Corolla) bearing No. MH-01-R-580 was lying in the middle of the road between road divider and footpath on Carter Road at about 50 feet from the north side of Varun Co-operative Housing Society gate and about 110 feet from railway quarters gate on the south side. The front wheel of the car was broken and mudguard was pressed. The spot panchnama shows 70 feet long brake marks in a curve from west side of the road divider towards footpath on eastern side. It is further seen from the spot panchnama that a tempo, mud digger and two trucks were parked on the road between Railway Quarters gate and Varun Cooperative Housing Society gate near the accident spot. The spot panchnama is duly proved by PW-11 and PW-16. There is nothing in the cross-examination of these witnesses to doubt their presence or veracity. The long brake marks in curve show that vehicle was being driven by the appellant at the high speed; the appellant had lost control of the speeding vehicle resulting in the accident and, consequently, seven deaths and injury to eight persons.\n67.  PW-15 is a motor vehicle inspector. He deposed that he was summoned by the control room to check the vehicle MH 01-R-580 involved in the accident. At the time of inspection, right side wheel of the vehicle was found dislodged from the body of the vehicle and the engine was dislodged from the foundation; though the steering wheel was intact and brake lever and gear lever were operative. There was no air in the front wheel of the vehicle. He opined that accident might have happened on account of dash. He has been briefly cross-examined and the only thing he said in the cross-examination was that he could not say whether the accident took place due to dislodging of right side wheel and dislodging of engine from foundation.\n68.  The above evidence has been considered by the High Court quite extensively. The High Court, on consideration of the entire prosecution evidence and having regard to the deficiencies pointed out by the defence, reached the conclusion that (1) the accused at the time of driving the car was under the influence of liquor; (2) he drove the car in drunken condition at a very high speed; and (3) he failed to control the vehicle and the vehicle could not be stopped before it ran over the people sleeping on the pavement. The High Court observed that the accused could not concentrate on driving as he was under the influence of liquor and the vehicle was being driven with loud noise and a tape recorder being played in high volume. The High Court held that the accused had more than 22 feet wide road for driving and there was no occasion for a driver to swing to the left and cover a distance of more than 55 feet; climb over the footpath and run over the persons sleeping on the footpath. The High Court took judicial notice of the fact that in Mumbai people do sleep on pavements. The accused was also aware of the fact that at the place of occurrence people sleep as the accused was resident of that area. The High Court took note of the fact that the accused had admitted the accident and his explanation was that the accident occurred due to mechanical failure and the defect that was developed in the vehicle but found his explanation improbable and unacceptable. The High Court also observed that the factum of high and reckless speed was evident from the brake marks at the site. The speeding car could not be stopped by him instantaneously. In the backdrop of the above findings, the High Court held that the accused could be attributed to have a specific knowledge of the event that happened. The High Court, thus concluded that the accused had knowledge and in any case such knowledge would be attributable to him that his actions were dangerous or wanton enough to cause injuries which may even result into death of persons.\n69.  We have also carefully considered the evidence let in by prosecution - the substance of which has been referred to above - and we find no justifiable ground to take a view different from that of the High Court. We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The infirmities pointed out by Mr. U.U. Lalit, learned senior counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law.\n70.  The trial court convicted the accused of the offence under Section 337 IPC but acquitted him of the charge under Section 338 IPC. The High Court noticed that two injured persons, namely, PW-6 and PW-8 had injuries over the right front temporal parietal region of the size of 5x3 cms. with scar deep with bleeding (Ex. 37 and 33 respectively). The High Court held that these were not simple injuries and were covered by the grievous hurt under Section 320 IPC. We agree. Charge under Section 338 IPC against the appellant is clearly established.\n71.  Insofar as charge under Section 337 IPC is concerned, it is amply established from the prosecution evidence that PW-5, PW-7, PW-9 and PW-10 received various injuries; they suffered simple hurt. The trial court as well as the High Court was justified in convicting the appellant for the offence punishable under Section 337 IPC as well.\nre: question (iv )\n72.  The question now is whether the maximum sentence of three years awarded to the appellant by the High Court for the offence under Section 304 Part II IPC requires any modification? It was argued on behalf of the appellant that having regard to the facts : (i) the appellant has already undergone sentence of two months and has paid Rs. 8,50,000/- by way of fine and compensation; (ii) the appellant is further willing to pay reasonable amount as compensation/fine as may be awarded by this Court; (iii) the appellant was about 20 years of age at the time of incident; and (iv) the appellant lost his father during the pendency of the appeal and presently being the only member to support his family which comprises of mother and unmarried sister, he may be released on probation of good conduct and behaviour or the sentence awarded to him be reduced to the period already undergone.\n73.  Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.\n74.  The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.\n75.  This Court has laid down certain principles of penology from time to time. There is long line of cases on this aspect. However, reference to few of them shall suffice in the present case.\n76.  In the case of Krishnappa (2000 (4) SCC 75 2000 Indlaw SC 237, though this Court was concerned with the crime under Section 376 IPC but with reference to sentencing by courts, the Court made these weighty observations :\n\" Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. .........\"\n77.  In the case of Dalbir Singh (2000 (5) SCC 82 2000 Indlaw SC 255, this Court was concerned with a case where the accused was held guilty of the offence under Section 304A IPC. The Court made the following observations:\n\"When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.\"\n78. Then while dealing with Section 4 of the Probation of Offenders Act, 1958, it was observed that Section 4 could be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on the probation of good conduct. For application of Section 4 of the Probation of Offenders Act, 1958 to convict under Section 304A IPC, the court stated in paragraph 12 thus:-\n\"Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down..........\"\n79. Further, dealing with this aspect, in paragraph 14, this Court stated :\n\"Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.\"\n80.  In State of M.P. v. Saleem alias Chamaru & Anr. (2005 (5) SCC 554 2005 Indlaw SC 413), while considering the case under Section 307 IPC this Court stated in paragraphs 5-9 as follows :\n\"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. . . . . . . . . . .\nAfter giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California (402 US 183) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.\nThe object should be to protect society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.\nImposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.\nThe court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should \"respond to the society's cry for justice against the criminal\".\"\n81.  In the case of Shailesh Jasvantbhai (2006 (2) SCC 359 2006 Indlaw SC 571) , the Court referred to earlier decisions in Dhananjoy Chatterjee alias Dhana v. State of W.B. ((1994) 2 SCC 220 1994 Indlaw SC 1743), Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175 1995 Indlaw SC 761), State of M.P. v. Ghanshyam Singh ((2003) 8 SCC 13 2003 Indlaw SC 716), Surjit Singh v. Nahara Ram & Anr. ((2004) 6 SCC 513 2004 Indlaw SC 579) State of M.P. v. Munna Choubey ((2005) 2 SCC 710 2005 Indlaw SC 50). In Ravji (1996) 2 SCC 175 1995 Indlaw SC 761), this Court stated that the court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should \"respond to the society's cry for justice against the criminal\".\n82.  In Manish Jalan (2008 (8) SCC 225 2008 Indlaw SC 1059), this Court considered Section 357 of the Code in a case where the accused was found guilty of the offences punishable under Sections 279 and 304A IPC. After noticing Section 357, the Court considered earlier decision of this Court in Hari Singh v. Sukhbir Singh & Ors. ((1988) 4 SCC 551 1988 Indlaw SC 27) wherein it was observed, 'it may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system\". Then the court noticed another decision of this Court in Sarwan Singh & Ors. v. State of Punjab ((1978) 4 SCC 111 1978 Indlaw SC 74) in which it was observed that in awarding compensation, it was necessary for the court to decide if the case was a fit one in which compensation deserved to be granted. Then the court considered another decision of this Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. & Anr. ((2007) 6 SCC 528 2007 Indlaw SC 353) wherein the court held under:\n\"The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge.\"\n83. Having regard to the above legal position and the fact that the mother of the victim had no grievance against the appellant therein and she prayed for some compensation, this Court held that a lenient view could be taken in the matter and the sentence of imprisonment could be reduced and, accordingly, reduced the sentence to the period already undergone and directed the appellant to pay compensation of Rs. One lakh to the mother of the victim.\n84.  World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A IPC.\n85.  The facts and circumstances of the case which have been proved by the prosecution in bringing home the guilt of the accused under Section 304 Part II IPC undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime. Seven precious human lives were lost by the act of the accused. For an offence like this which has been proved against the appellant, sentence of three years awarded by the High Court is too meagre and not adequate but since no appeal has been preferred by the State, we refrain from considering the matter for enhancement. By letting the appellant away on the sentence already undergone i.e. two months in a case like this, in our view, would be travesty of justice and highly unjust, unfair, improper and disproportionate to the gravity of crime. It is true that the appellant has paid compensation of Rs. 8,50,000/- but no amount of compensation could relieve the family of victims from the constant agony. As a matter of fact, High Court had been quite considerate and lenient in awarding to the appellant sentence of three years for an offence under Section 304 Part II IPC where seven persons were killed.\n86.  We are satisfied that the facts and circumstances of the case do not justify benefit of probation to the appellant for good conduct or for any reduction of sentence.\n87.  The appeals are, accordingly, dismissed. Appellant's bail bonds are cancelled. He shall forthwith surrender for undergoing the remaining sentence as awarded by the High Court in the Judgment and Order dated September 6, 2007.\nAppeals Dismissed\n"}
+{"id": "efQrSO42uK", "title": "", "text": "State of Madhya Pradesh v Kashiram and Others\nSupreme Court of India\n\n2 February 2009\nCriminal Appeal No. 191 of 2009 (Arising out of SLP (Crl.) No. 1507 of 2007)\nThe Judgment was delivered by : Dr. Arijit Pasayat, J.\nLeave granted.\n1.  Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court. The respondents faced trial for alleged commission of offences punishable under Section 307 read with Sections 149 and 148 of the Indian Penal Code, 1860 (in short the \"IPC\"). Learned Additional Sessions Judge, Shihore, found the accused respondents guilty and sentenced each to undergo rigorous imprisonment for five years with fine and 6 months rigorous imprisonment for the other two offences. By the impugned judgment the High Court held that the appropriate conviction would be under Section 326 read with Section 149 IPC. Custodial sentence was reduced to the period already undergone, while the fine amount of Rs.500/- was enhanced to Rs.20,000/-.\nProsecution version as unfolded during trial is as follows:\n2. On 21.7.1987 at about 4 O'clock in the evening the complainant- victim Jai Singh (PW5) was at the grass field for the purpose of grazing the cattle. The wife of respondent Lila Kishan and wife of Bapulal came there to collect some leaves in the field. Thereafter on account of some earlier enmity the respondents armed with rifle, sticks and axe came there and the accused Lilakishan, Bapu and Kashiram caught hold of the said victim while other accused Jagannath and Amar Singh tied his hands and legs by turban and accused Laakhan with the help of clothes pressed his mouth. Thereafter, his legs were caught by the respondents Bapu and Lila Kishan, while Kashiram chopped off the lower part of the left leg. Gangaram stood there with rifle. The victim sustained injuries on his back, right eye and left leg. After the incident the accused persons ran away from the spot. However, the victim reached the field of Chain Singh and mentioned the incident to him. Umrao Singh and Roop Singh took him to his home. They called the watchman and mentioned him the incident. Due to heavy rain, Jai Singh lodged the report to Police, Ahmadpur on 22.7.1988 at 6.40. On registering the offence, the victim was referred to hospital. The M.L.C. Report was prepared. He was admitted in the hospital and remained under treatment. On completion of the investigation, the accused persons were charge sheeted under Sections 147, 148, 149 and 326 and 307 IPC. The Trial court believed the evidence of the victim PW 5 and also the other evidences brought on record and recorded conviction and imposed sentences as aforestated. The accused persons preferred an appeal before the High Court where the basic stand was that offence under Section 307 IPC is not made out. The High Court held that there was no material on record to show that the injury was sufficient to cause death in the ordinary course of nature. It was observed that chopping of the leg from the body cannot be treated sufficient to cause death. As noted above with the aforesaid observation the conviction and the sentence were altered.\n3.  In support of the appeal learned counsel for the appellant-State submitted that the High Court has completely overlooked the gruesome nature of the offence. It has also overlooked the evidence of PW1, the Doctor that the injury could have caused death.\n4.  Learned counsel for the respondent on the other hand supported the judgment of the High Court. With dismay we observe that the High Court has completely overlooked the evidence on record and the impugned judgment shows total non-application of mind. The High Court observed that the doctor has not stated that the injury was sufficient to cause death in the ordinary course of nature. PW 1 had noted that 1/3 of the leg was chopped off below the knee. He had categorically stated that the injury could have caused death. The Doctor (PW14) i.e. the Radiologist clearly stated that the aforesaid chopping of the leg was grievous in nature. With some strange logic the High Court observed that merely on the testimony of PW1 it cannot be assumed that the injury was sufficient to cause death in ordinary course of nature.\n5.  The evidence of PW5 the victim clearly shows the gruesome nature of the attack and the intention of the accused persons. According to him, accused Ram Singh and Bapulal caught hold of him. He was laid down on the ground and the accused Krishan Lal chopped out the left foot and Ram Singh caught hold of his left leg and Bapulal caught hold of his right leg, Arjun caught hold of his leg and Krishan Lal kept his legs on his left hand and put clothes in his mouth and caught hold of his head. Leela Krishan said that his foot jaw has been chopped off and the heels should also be chopped out. Accused Suraj Singh kept his leg on a log of wood and Leela Krishan chopped out his feet by axe from above the ankle. The trial court noticed that the leg was chopped out between the knee and the ankle. Krishan Lal asked Ram Singh to keep the chopped pieces of the leg in the bag and Ram Singh picked up the pieces of legs and kept them in the bag. Though accused Arjun Singh asked that both his eyes should be taken out, accused Ganga Ram told him that chopping of his one leg was sufficient to cause his death.\nSection 307 relates to attempt to murder. It reads as follows:\n\"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned.\"\n6.  To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.\n7.  It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.\n8.  This position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC 28 1983 Indlaw SC 414), Girija Shanker v. State of Uttar Pradesh (2004 (3) SCC 793 2004 Indlaw SC 78), R. Parkash v. State of Karnataka (JT 2004 (2) SC 3482004 Indlaw SC 117) and State of Madhya Pradesh v. Saleem @ Chamaru & Anr. [2005 (5) SCC 554 2005 Indlaw SC 413].\n9.  Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is intention or knowledge, as the case may be, and not nature of the injury.\n10.  Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu (AIR 1991 SC 1463 1991 Indlaw SC 683).\n11.  After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.\n12.  The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.\n13.  Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.\n14.  The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should \"respond to the society's cry for justice against the criminal\".\n15.  It also baffles us as to how the High Court uniformly directed reduction of sentence to the period already undergone. The various periods of custody suffered by the respondents during trial are as follows:\n16.  Thereafter the High Court directed suspension of sentence. By then they had suffered custody for about 3 months 15 days more. There was no similarity in the period of sentence already suffered by the accused persons when the High Court passed the impugned judgment.\n17.  Looked at from any angle the judgment of the High Court is clearly unsustainable, deserves to be set aside which we direct. The judgment of the trial court stands restored so far as conviction as well as the sentences are concerned.\nThe appeal is allowed.\nAppeal allowed\n"}
+{"id": "gMXAdx9G81", "title": "", "text": "Soman v State of Kerala\nSupreme Court of India\n\n14 December 2012\nCr.A. Nos. 1533-1534 of 2005\nThe Judgment was delivered by : Aftab Alam, J.\n1. The short question that arises for consideration in these appeals is whether or not the social consequences of a culpable act and its impact on other people can be a relevant consideration for giving a heavier punishment, of course, within the limits fixed by the law. The facts and circumstances in which the question arises may be briefly stated thus. In October 2000, 31 people died, and more than 500 developed serious sicknesses, of which six lost their vision completely as a result of consuming spurious liquor, contaminated with methyl alcohol at different places in Kollam district, Kerala. Cases were initially registered at different police stations, but, later on, all the cases were consolidated into a single case and on the basis of investigations made by the police, 48 accused in all were put on trial. The accused were broadly classified into three groups: one, the maker and manufacturers of the spurious liquor; two, the distributors and suppliers of the killer brew; and third the retail vendors who sold the stuff to the consumers. The appellant who was accused No.41 before the trial court fell in the third category. The prosecution case, insofar as the appellant is concerned, was that he was engaged in the sale of liquor and he received his supplies from accused Nos. 25 & 26.\n2. Before the trial court the prosecution was able to successfully establish that on October 21, 2000, two days prior to the tragic occurrence, fresh supply was brought to the appellant on a motor cycle. The arrack received by him on that date was sold to various persons and on consuming it, they became very ill and one of them, namely, Yohannan died. The post-mortem report of Yohannan showed that he died of methanol poisoning. At the time of post-mortem his blood and urine samples were taken for chemical analysis and the report (Ext.P1059) showed presence of methyl alcohol in the samples. Further, on the basis of a disclosure statement made by the appellant [Ext.P413(a)] a plastic can (M.O.98) containing the residue of the spirit sold by him was recovered and seized from his shop. On chemical analysis, the contents of the can were found adulterated with methyl alcohol.\nOn the basis of the evidences led before it, the trial court found and held, and quite rightly, that the spirit sold by the appellant that caused the death of Yohannan and sickness to several other persons was spurious, being contaminated with highly injurious and poisonous substances and held him guilty of Ss. 55(a) & (i), 57A and 58 of the (Kerala) Abkari Act (hereinafter 'the Act'). The trial court sentenced the appellant to undergo rigorous imprisonment for two years on each count and a fine of Rs. One Lakh on each count except under Section 57A and in default to undergo simple imprisonment for one year on each count. The trial court also found the appellant guilty u/s. 201 of the Penal Code and on that count sentenced him to rigorous imprisonment for six months and a fine of Rs.5,000/- with the default sentence of simple imprisonment for one month. The trial court directed that the sentences of imprisonment shall run concurrently.\n3. Against the judgment and order passed by the trial court, appeals were preferred both by the accused, including the present appellant and the State. The State in its appeal questioned the acquittal of some of the accused and also demanded enhancement of sentence in respect of those who were convicted and sentenced by the trial court. The High Court by its judgment and order dated October 8, 2004 dismissed the appeals of the accused, including the one by the appellant. However, dealing with the question of sentence on the basis of the State's appeal deemed it fit to enhance the appellant's sentence of imprisonment from two years to five years. In this connection, the High Court made the following observations:-\n\"....Evidence adduced in this case clearly establishes that A 41 sold illicit arrack on 21.10.2000 and 22.10.2000 and Yohannan died due to methanol poisoning of taking liquor from him and several persons were sustained injuries also. His conviction for offences u/s. 55(a) and (i) and u/s. 58 are confirmed. Even though he was only a small retail seller, who got liquor from A 25, one person died and several persons were injured. But, he is punished only for two years u/s. 55(a) and (i) and punishment should commensurate with the offence. Hence, his conviction and sentence under Section 57A (2) (ii) is confirmed. U/s. 55 maximum punishment is ten years. We are of the opinion that the sentence imposed on him should be enhanced. He is sentenced to undergo rigorous imprisonment for five years (instead of two years as imposed by the Sessions Judge) and to pay a fine of Rs. one Lakh in default to undergo simple imprisonment for six months on each count under Ss. 55(a) and (i). His conviction and sentence for other offence are also confirmed. Sentences shall run concurrently.\"\n4. Against the judgment and order passed by the High Court, the accused came to this Court in different batches. In some Special Leave Petitions filed by different accused leave was granted but the Special Leave Petition Nos.237-238 filed by one Sudhakaran @ Sudha and the present appellant was initially dismissed by order dated January 24, 2005. Later on, the appellant filed Review Petition (Crl.) Nos.613-614 of 2005, which were allowed by order dated November 14, 2005 and leave was granted. By the same order, the appellant was also enlarged on bail.\n5. Learned counsel appearing for the appellant did not at all question the conviction of the appellant under the different provisions of the Act. He has, however, vehemently contended that the High Court was completely wrong in enhancing the appellant's sentence and imprisonment from two years to five years. Learned counsel submitted that the only ground on which the High Court has enhanced the appellant's sentence was that the spirit sold by the appellant led to the death of one person. According to the learned counsel, this could not have been the valid ground for giving a heavier punishment.\n6. Before considering this submission made by the learned counsel, it will be apposite to take a look at the relevant provisions of the Act, including those under which the appellant has been held guilty. S. 8 of the Act prohibits manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack and it is in the following terms:-\n\"8.(1) Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc., of arrack.- No person shall manufacture, import, export, transport, [without permit transit], possess, store, distribute, bottle or sell arrack in any form.\n(2) If any person contravenes any provisions of subsection (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh.\"\n7. S. 55 of the Act insofar as relevant for the present, is as under:-\n\"55. For illegal import, etc.-Whoever in contravention of this Act or of any rule or order made under this Act:\n(a)imports, exports, [transports, transits or possesses] liquor or any intoxicating drug; or\n(b) xxxx\n(c) xxxx\n(d) xxxx\n(e) xxxx; or\n(f) xxxx; or\n(g) xxxx; or\n(h) bottles any liquor for purposes of sale; or\n(i) [sells or stores for sale liquor] or any intoxicating drug;][shall be punishable]\n(1) for any offence, other than an offence falling u/cl. (d) or clause (e), with imprisonment for a term which may extend to [ten years and with fine which shall not be less than rupees one lakh and]\n(2) for an offence falling u/cl. (d) or clause (e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.\"\n8. Section 57A reads as under:-\n\"57A. For adulteration of liquor or intoxicating drug with noxious substances, etc.-(1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable-\n(i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;\n(ii) if, as a result of such act, death is caused to any person, with death or imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;\n(iii)in any other case, with imprisonment for a term which shall not be less than one year, but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.\nExplanation.- For the purpose of this Section and Section 57B, the expression \"grievous hurt\" shall have the same meaning as in S. 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860).\n(2) Whoever omits to take reasonable precautions to prevent the mixing of any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable,- (i)if as a result of such omission, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for lie, and with fine which may extend to fifty thousand rupees;\n(ii)if as a result of such omission, death is caused to any person, with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;\n(iii) in any other case, with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.\n(3) Whoever possesses any liquor or intoxicating drug in which any substance referred to in sub-s. (1) is mixed, knowing that such substance is mixed with such liquor or intoxicating drug shall, on conviction, be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.\n(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) no person accused or convicted of an offence under subs. (1) or sub-s. (3) shall, if in custody, be released on bail or on his own bond, unless-\n(a) the prosecution has been given an opportunity to oppose the application for such release, and\n(b) where the prosecution opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.\n(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872)-\n(a) where a person is prosecuted for an offence under sub-s. (1) or sub-section (2), the burden of proving that he has not mixed or permitted to be mixed or, as the case may be, omitted to take reasonable precautions to prevent the mixing of, any substance referred to in that sub-section with any liquor or intoxicating drug shall be on him;\n(b) where a person is prosecuted for an offence under sub-s. (3) for being in possession of any liquor or intoxicating drug in which any substance referred to in sub-s. (1) is mixed, the burden of proving that he did not know that such substance was mixed with such liquor or intoxicating drug shall be on him\"\n9. S. 58 reads as under:-\n\"58. For possession of illicit liquor.- Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing [the duty, tax or rental payable under this Act] not to have been paid therefore, [shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh].\"\n10. It may be seen that all the three provisions as contained under Sections 55, 57A and 58 provide for long periods of imprisonment, leaving it to the discretion of the court to fix the exact sentence having regard to the facts and circumstances of a particular case. Section 57A which is one of the Sections under which the appellant is convicted provides for a minimum sentence of three years' imprisonment. When it was pointed out to the learned counsel that under the relevant provisions the sentence of imprisonment could vary from one day to ten years (u/s. 55) and from three years to a life term (under Section 57A(2)(ii)) and from one day to ten years under Section 58, he replied that the appellant's conviction was not maintainable under Section 57A(2) (ii) and so far as Ss. 55 and 58 are concerned, the relevant considerations for giving a life sentence of imprisonment would be the amount of spirit stored for sale. According to him, the death of a person as a result of sale of the spurious liquor could not have been a ground for imposition of a heavier sentence.\n11. We find no substance in the submissions. First, no good reason is given to hold that the appellant's conviction u/s. 57 (2) (ii) is not sustainable; secondly, in regard to the main issue in the case, i.e., whether the consequences of an offence can be taken into consideration for determining the appropriate punishment, a complete answer is to be found in Section 57A itself. Under Section 57A, the adulteration of liquor or the omission to take reasonable precaution to prevent the mixing of any noxious substance with any liquor are made offences. And then different sentences are provided in clauses (i), (ii) and (iii), depending upon the different consequences resulting from the offence. In case of grievous hurt, the minimum sentence is two years' imprisonment, in case of death, three years and in any other case, one year's imprisonment. There is no reason why the same basis may not be adopted for sentencing under the other provisions of the Act, e.g., Sections 8, 55 (a) & (i) and 58.\n12. Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges. In State of Punjab v. Prem Sagar (2008) 7 SCC 550 2008 Indlaw SC 997 this Court acknowledged as much and observed as under -\n\"2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines.\"\n13. Nonetheless, if one goes through the decisions of this Court carefully, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation etc. (See: Ramashraya Chakravarti v. State of Madhya Pradesh (1976) 1 SCC 281 1975 Indlaw SC 273, Dhananjoy Chatterjee alias Dhana v. State of W.B. (1994) 2 SCC 220 1994 Indlaw SC 1743, State of Madhya Pradesh v. Ghanshyam Singh (2003) 8 SCC 13 2003 Indlaw SC 716, State of Karnataka v. Puttaraja (2004) 1 SCC 475 2003 Indlaw SC 1071, Union of India v. Kuldeep Singh (2004) 2 SCC 590 2003 Indlaw SC 1386, Shailesh Jasvantbhai and another v. State of Gujarat and others (2006) 2 SCC 359 2006 Indlaw SC 571, Siddarama and others v. State of Karnataka (2006) 10 SCC 673 2006 Indlaw SC 500, State of Madhya Pradesh v. Babulal (2008) 1 SCC 234 2007 Indlaw SC 1262, Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498) 2009 Indlaw SC 1921\n14. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness. The question is whether the consequences of the offence can be taken as the measure for determining its harmfulness? In addition, quite apart from the seriousness of the offence, can the consequences of an offence be a legitimate aggravating (as opposed to mitigating) factor while awarding a sentence. Thus, to understand the relevance of consequences of criminal conduct from a Sentencing standpoint, one must examine: (1) whether such consequences enhanced the harmfulness of the offence; and (2) whether they are an aggravating factor that need to be taken into account by the courts while deciding on the sentence.\n15. In Sentencing and Criminal Justice, 5th Edition, Cambridge University Press, 2010, Andrew Ashworth cites the four main stages in the process of assessing the seriousness of an offence, as identified in a previous work by Andrew Von Hirsch and Nils Jareborg.\n1. Determining the interest that is violated (i.e. physical integrity, material support, freedom from humiliation or privacy/autonomy)\n2. Quantification of the effect on the victim's living standard.\n3. Culpability of the offender.\n4. Remoteness of the Actual harm.\n16. Ashworth then examines various specific offences to ascertain how seriousness is typically gauged. The most relevant example is that of drug trafficking, where the author notes the problem that the offence lies fairly remote from causing people's deaths. Ashworth further notes that harsh sentences for drug trafficking offences is justified more by deterrent rationales than proportionality concerns, although even the deterrent rationales are beset with problems. (See Pages 128 - 130)\n17. Here, it needs to be noted that one major difference between production/sale of spurious liquor and drug trafficking is that in the case of spurious liquor, the consumer does not know what he is consuming, whereas in the case of drugs, the consumer, at least in the initial stages, knowingly and voluntarily chooses to consume the drugs.\n18. Ashworth also examines the impact of unintended consequences on sentencing. He notes that there is a tendency to take those into account in manslaughter and for causing death by bad driving. The extent to which unintended consequences may be taken into account would depend, for instance, on the extent to which the offender was put on notice of the risk of death. Thus, where it is known that driving dangerously or under the influence of alcohol creates risk for the safety of others, there would be a greater emphasis on resulting death while determining the sentence. (See Pages 153 - 154).\n19. Arguably, one might surmise that manufacturers of spurious liquor must be able to reasonably foresee that consumption of spurious liquor would affect the health (and possibly life) of others. Thus, there may be some basis for taking into account the unintended consequences while determining sentence. The remoteness of harm would be a factor when a person, by consuming drugs, dies after a period of sustained use. Where a person consuming spurious liquor dies as a result of such consumption, the harm is much more direct and immediate, and remoteness of harm may not be as much of an issue.\n20. Germane to the issue under consideration is a decision of the Supreme Court of Appeal of South Africa in S Nyathi and The State [2005] ZASCA 134 (23 May 2005) and we may usefully refer to it. The case relates to the death of six people resulting from the road accident in which a sedan driven by the appellant in that case collided with a minibus taxi. The impact caused the minibus to overturn, killing six of its occupants. Some other passengers were injured. The appellant was convicted of culpable homicide. The court found that the collision between the two vehicles had taken place on a blind rise where a double barrier line prohibited overtaking by vehicles coming from either direction. It was the admitted position at the trial that forward visibility was restricted. The court observed that overtaking on a barrier line, and specially on a double barrier line, where a motorist should realise that his inability to observe approaching traffic is compounded by the inability of the traffic in the opposite direction to see him is probably the most inexcusably dangerous thing a road user can do. Coming to the question of sentence, the Court observed:\n\"[13] Road accidents with calamitous consequences are frequently caused by inadvertence, often momentary. [Dube v S [2002] JOL (Judgments on Line) 9645 (T), a case mentioned by the regional magistrate, is an example. The appellant was the driver of a bus involved in an accident on a mountain pass which killed twenty eight passengers. On appeal a suspended sentence of two years' imprisonment was substituted for one of six years' imprisonment imposed by the trial court on the footing that the appellant's negligence had been slight.] Overtaking on a double barrier line is not inadvertence. It is a conscious decision to execute a manoeuvre that involves taking a fearfully high risk. Referring then to some earlier decisions of the Court in paragraph 14 of the judgment it observed as under:-\n\"[14] In S v Nxumalo [1982] 3 S.A. 856 (SCA) the court approved a passage from R v Barnardo [1960] 3 S.A. 552 where the court held that although no greater moral blameworthiness arises from the fact that a negligent act caused death, the punishment should acknowledge the sanctity of human life. It affirmed the dicta of Miller J who twenty years earlier in S v Ngcobo [1962] 2 S.A. 333 had set out the approach to road death cases.\n'It seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blameworthiness would be the extent of the accused's deviation from the norm of reasonable conduct in the circumstances and the foresee ability of the consequences of the accused's negligence. At the same time the Actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed.'\"\n(Emphasis Added)\n21. Punishment should acknowledge the sanctity of human life. We fully agree.\n22. From the above, one may conclude that:\n1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.\n2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.\n3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.\n4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.\n5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor.\n23. In light of the discussion made above, we are clearly of the view, that the High Court was fully justified in taking into account the death of a person, as a result of consuming the illicit liquor, sold by the appellant as a ground for enhancing his sentence from two years to five years rigorous imprisonment. There was absolutely no illegality or lack of jurisdiction in the order of the High Court and we would have unhesitatingly upheld the order of the High Court but for another reason. It is noted above that a number of appeals against the judgment and order by the High Court came before this Court at the instance of a number of accused. One of them happened to be accused No.25 who was the supplier of the illicit liquor to the appellant and from him the appellant had received the fatal supply that led to the death of Yohannan and sickness of a number of others.\nThe trial court had convicted accused no.25 under Section 57A(2)(ii) of the Act and sentenced him to imprisonment for life and a fine of Rs. fifty thousand with the default sentence of simple imprisonment for six months. He was convicted and sentenced to undergo rigorous imprisonment for five years and a fine of rupees fifty thousand with the default sentence of imprisonment for six months under Section 57A(2)(i) of the Act. He was also convicted under Sections 57A(2)(iii), 55(a)(i) and 58 of the Act. The High Court had maintained the conviction and sentence passed by the trial court.\nThis Court, however, by its judgment and order dated April 4, 2011 in Chandran v. State of Kerala (2011) 5 SCC 161 2011 Indlaw SCO 308 maintained the conviction of accused no.25 under the various provisions as recorded by the trial court and affirmed by the High Court. However, it accepted the plea made on behalf of accused no.25 to reduce his sentence from a life term to ten years imprisonment. Since this Court has deemed fit to reduce the sentence given to accused no.25 from a life term to ten years rigorous imprisonment, we feel that it will not be fair not to give the same concession to the appellant (accused no.41) who was the last and weakest link in the chain. We, accordingly, reduce his sentence from five years rigorous imprisonment to three years rigorous imprisonment, being the minimum under Section 57A (2) (ii) of the Act. The fines imposed by the courts below for the different offences remain unaltered.\n24. In the result, the appeals are dismissed, subject to modification and reduction in sentence, as noted above.\n25. The bail bonds of the appellant are cancelled. He will be taken into custody to serve his remainder sentence.\nAppeals dismissed\n"}
+{"id": "r4Eh0C3BfQ", "title": "", "text": "State Of M.P v Bablu Natt\nSupreme Court of India\n\n18 December 2008\nCRIMINAL APPEAL NO. 2060 OF 2008 [arising out of SLP (Criminal) No. 5644 of 2005]\nThe Judgment was delivered by : S. B. Sinha, J.\nLeave granted.\n1.  On 26.03.2000, Respondent bought paddy husk for a sum of Rs. 500/- from the father of the prosecutrix whereafter they were said to have become acquainted with each other. Respondent and his friend Mohan Bangali, who came with him, at their request were allowed to sleep in the Khalihan. However, in the middle of the night, he took the prosecutrix away with him. On the next day, i.e., on 27.03.2000, a First Information Report (FIR) was lodged by Shaktideen, father of the prosecutrix. The prosecutrix was a minor but a married woman. She was recovered on 27.7.2000. Respondent was arrested on 28.7.2000. Charges for commission of offences punishable under Sections 366 and 376 of the Indian Penal Code ('IPC' for short) were framed.\n2.  Respondent in his defence raised a plea that prosecutrix was a consenting party. He also raised a plea that she was major. In support of the said contention, he produced an affidavit purported to have been affirmed by her stating where her age to be 18. Further contention of the respondent was that he had arranged the second marriage of Shaktideen, the father of the prosecutrix, subject to the condition that Lilawati (prosecutrix) would be married with him and that is why both the families were on visiting terms and Lilawati eloped with respondent voluntarily and had undergone a court marriage.\n3.  The learned Sessions Judge found that he had committed sexual intercourse with the prosecutrix without her consent and against her will. But even if it is accepted that she was a consenting party, as she was not more than 13 years of age, such purported consent was of no moment. Accused was found to have committed sexual intercourse with the prosecutrix on more than one occasion against her will and without her consent between 26th and 27th March, 2000 till the date of her recovery, i.e, 27.7.2000, and, thus, is guilty of commission of offences punishable under Sections 366 and 376 of IPC.\n4. The learned Sessions Judge, upon considering the materials on record, found that respondent had taken away the prosecutrix from the lawful custody of her lawful guardian Shaktideen - her father - without his consent, with the intention that she be forced to illicit sexual intercourse. It was further held that the appellant had knowledge that the prosecutrix was married but even then he took her away with himself and committed sexual intercourse with the prosecutrix against her will and without her consent.\nUpon hearing respondent on the question of sentence, it was held:\n\"22. It was argued on behalf of accused that this is his first offence therefore he should be pardoned. Argument and request was heard and considered. As has been found above that being well aware of the fact that prosecutrix is married and a minor, even then he took away prosecutrix from the lawful keeping of guardianship of her father without the consent of the father for committing illicit sexual intercourse with her and committed sexual intercourse with prosecutrix against her will and without her consent. In such a circumstance, the above-proved act of the accused does not deserve any pardon. But as the accused is a young man of 20 years therefore, accused Bablu Natt is sentenced to undergo 7-7 years of rigorous imprisonment (for each offence) and with a fine of Rs.500/-, 500/- (five hundred) (for each offence) for committing offences punishable under Section 366/376 of IPC. In case of default of payment of fine, accused had to further undergo 2-2 years of rigorous imprisonment for default of payment of each amount of fine.\"\n5.  An appeal was preferred thereagainst. The High Court, by reason of the impugned judgment, while upholding the judgment of conviction interfered with the quantum of sentence, stating:\n\"11. Yet there is another facet of the case. True, the prosecutrix was minor and did not attain the age of majority. But it is equally true that she is sensible girl having age of 15 years, she did not complain to anybody and she lived for several days with appellant at Chhatarpur. She also traveled at several places in bus she did not complain to anybody. Not only this, she also sworn an affidavit at District Court, Chhatarpur mentioning her age to be 18 years and stated that she is living with appellant as his wife. The prosecutrix admitted in her testimony that she executed affidavit Ex. D/1. In this view of the matter, looking to the totality of the facts and surrounding circumstances, this is a fit case for interfering in the quantum of punishment. For the reasons assigned hereinabove, the view of this Court is that for the ends of justice it would be justifiable to enlarge the appellant for the period he has already undergone. From verifying the record, learned counsel for the respondent has submitted that appellant has undergone a jail sentence of four years and two months, according to me, this would be sufficient punishment for him.\"\nThe State is, thus, before us.\n6.  Mr. Vibha Datta Makhija, learned counsel appearing on behalf of appellant submitted that rigorous imprisonment for seven years having been prescribed by the Parliament, the reasons assigned for sentencing the respondent for the period undergone should not be upheld.\n7.  Mr. Anish Kumar Gupta, learned counsel appearing on behalf of respondent, however, supported the judgment of the High Court contending that the reasons assigned by the High Court are not only sufficient but also cogent for the purpose of invoking the proviso appended to Section 376 of the IPC.\n8.  Indisputably, sentence in terms of Section 366 of the I.P.C. may extend to rigorous imprisonment for a term of ten years or fine or with both. Section 376 thereof provides for sentence for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. The proviso appended thereto, however, provides that 'the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years'.\n9.  Was it a case where the proviso to Section 376 could be invoked is the question. The prosecutrix and the respondent were unknown to each other. They came to know each other only on the night of 26.3.2000. A finding of fact had been arrived at that she was minor. The fact that she was subjected to sexual intercourse was supported by the medical evidence. Medical opinion was rendered that rape was committed on her and she was not habituated to sexual intercourse. On medical examination, her age was assessed between 11 and 13 years.\n10.  We may place on record a few questions put to the said witness and answers thereof:\n\"Question: What happened to you?\nAnswer: When I asked the accused to take me to my house then he started talking nonsense and started telling me.\nQuestion: What nonsense he started talking with you and what he started telling you?\nAnswer: Accused asked me to sleep with him and I refused, the accused made me sleep with him by use of force and took off my Saari and also took off my clothes and humiliated me and did bad act with me. (One sentence omitted).\nI could not even go to my parents house because the accused was keeping me in his house\nXXX XXX XXX\nEveryone in my house call me Bitti. It is wrong to say that I went with accused Bablu on my own volition. It is wrong to say that I married with accused Bablu in the Chattarupur Court by my own will. It is wrong to say that an affidavit was signed in this respect. It is correct that such paperwork was completed in the Court and accused told me to tell my age to be 18 years therefore, I told my age to be 18 years. It is wrong to say that I completed such paperwork. When I was caught in the house of the accused, I was kept there by the accused for 6 days. I do not know that whose house is located besides the house of accused Bablu. When witness was shown affidavit of Exhibit D-4, witness says that photograph pasted on it from A to A belongs to her. It is wrong to say that Bablu did not elope me. It is wrong to say that I came to his house on my own will.\"\n11.  Admittedly, an offence with which respondent was charged had been proved to have been committed. He also got an affidavit affirmed by the prosecutrix showing her age to be 18 years, which was found to be false. He, therefore, knew the intricacies of law.\n12.  The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Socio-economic status, religion, race, caste or creed of the accused and the victim although may not be wholly irrelevant, should be eschewed in a case of this nature, particularly when Parliament itself had laid down minimum sentence. In India, we do not have sentencing guidelines. Necessity of the guidelines on the judicial side has been highlighted in State of Punjab vs. Prem Sagar & Others.[(2008) 7 SCC 550 2008 Indlaw SC 997], wherein it was noticed:\n\"5. Whether the Court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstances of each case. While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution of India.\n6. There are certain offences which touch our social fabric. We must remind ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain types of offences had been kept out of the purview thereof. While imposing sentences, the said principles should be borne in mind.\n7. A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice-delivery system. Parliament, however, in providing for a hearing on sentence, as would appear from sub-section (2) of Section 235, sub-section (2) of Section 248, Section 325 as also Sections 360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said provisions lay down the principle that the court in awarding the sentence must take into consideration a large number of relevant factors; sociological backdrop of the accused being one of them.\n8. Although a wide discretion has been conferred upon the court, the same must be exercised judiciously. It would depend upon the circumstances in which the crime has been committed and his mental state. Age of the accused is also relevant.\"\n13. Upon noticing the development of law in this behalf in other countries, it was opined:\n\"31. We have noticed the development of law in this behalf in other countries only to emphasise that the courts while imposing sentence must take into consideration the principles applicable thereto. It requires application of mind. The purpose of imposition of sentence must also be kept in mind.\"\n14.  One of the principles that the judiciary had all along kept in its mind that rape being a violation with violence of the private person of a woman causes mental scar, thus, not only a physical injury but a deep sense of some deathless shame is also inflicted. (See Mohan Anna Chavan vs. State of Maharashtra [2008 (9) Scale 474 2008 Indlaw SC 913] and Bantu vs. The State of U.P. [2008 (10) Scale 336 2008 Indlaw SC 1142]\n15. Although, with utmost respect to the Hon'ble Judges, one may not entirely agree with invocation of doctrine of proportionality in imposing death sentence as has been highlighted in the above two cases, we may notice that in latter doctrine of proportionality has been invoked, stating:\n\"The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.\"\n16.  We may also notice that in State of M.P. vs. Bala alias Balaram [(2005) 8 SCC 1 2005 Indlaw SC 649], this Court commenting upon the grossly inadequate sentence imposed upon by the High Court of Madhya Pradesh, stated:\n\"Sub-section (1) of Section 376 I.P.C. provides that whoever, except in the cases provided for by Sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases covered under Sub-section (2) of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to Sub-section (1) lays down that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a similar proviso to Sub-section (2) which empowers the Court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is not only grossly inadequate but is also contrary to express provision of law. The High Court has not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal.\"\nP. K. Balasubramanyan, J. in his judgment added:\n\"The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 I.P.C. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Section 376(1) and 376(2) I.P.C. give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason.\n13. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized society does not revert to the days of 'an eye for an eye and a tooth for a tooth'. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted.\"\n17.  The said line of reasonings was adopted in about twelve short orders following the said decision.\n18.  In State of Karnataka vs. Raju [(2007) 11 SCC 490 2007 Indlaw SC 944], it was held:\n\"It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.\nIt is to be noted that in Sub-section (2) of Section 376 I.P.C. more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is covered by Section 376(2)(f) IPC i.e. when rape is committed on a woman when she is under 12 years of age.\"\n19.  We have noticed hereinbefore that the age of the prosecutrix was assessed between 11 and 13 years, but by way of abundant precaution, the learned Sessions Judge held her age to be less than 13. The court has not, therefore, awarded any punishment in terms of Section 376(2)(f) of the Indian Penal Code. But even in doing so, the learned trial judge herein imposed the minimum sentence, should have met the approval of the High Court. It was a case where the minimum sentence, to say the least, could be imposed. While saying so, we may notice that this Court in State of U.P. vs. Bodem Sundara Rao [(1995) 6 SCC 230]1995 Indlaw SC 1760 stated the law thus:\n\"After its amendment, Section 376(1) provides for a minimum sentence of seven years which may extend to life or for a term which may extend to 10 years besides fine for the offence of rape. The proviso to Sub-Section (1) lays that the Court may for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.\nKeeping in view the nature of the offence and the helpless condition in which the prosecutrix a young girl of 13/14 years was placed, the High Court was clearly in error in reducing the sentence imposed upon the respondent and that too without assigning any reasons, much less special and adequate reasons. The High Court appears to have overlooked the mandate of the Legislature as reflected in Section 376(1) IPC.\nIn recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating circumstances available on the record which may justify imposition of sentence less than the minimum prescribed by the Legislature under Section 376(1) of the Act.\"\n20.  The imposition of minimum sentence having been brought about by an amendment in the statute, the court should always bear in mind the effect thereof. The power conferred on the court to impose a sentence less than the minimum prescribed must not only be supported by any reason but adequate and special reasons ought to be mentioned therefor. The High Court did not do so. It is difficult to comprehend as to on what materials the High Court opined that 'she was a sensible girl having age of 15 years, she did not complain to anybody and lived for several days with respondent at Chhatarpur'. The fact that she was a minor and subjected to rape and furthermore, as noticed hereinbefore, according to her, she was compelled to live for several days with the respondent at Chhatarpur as he would not listen to her plea of taking her to her father was lost sight of by the High Court. The affidavit affirmed by her was found to have been obtained without her knowing the contents thereof and at the instance of respondent. The very fact that she was made to state that her age was 18 years and she was living with the respondent as a wife clearly goes to show the mental trauma which she was undergoing.\n21. We are, therefore, of the opinion that the contents of the said affidavit were wrongly used for imposing a sentence less than minimum prescribed sentence considering the same to be mitigating factor.\n22.  Our attention, however, has been drawn to the decision of this Court in State of Punjab vs. Gurmit Singh & Ors. [(1996) 2 SCC 384 1996 Indlaw SC 1087], wherein this Court imposed less sentence than the minimum prescribed one. In that case, a judgment of acquittal was passed. This Court reversed the said judgment. It was in the aforementioned situation, balance was sought to be struck, stating:\n\"...In this case the occurrence took place on 30.3.1984 (more than 11 years ago. The respondents were aged between 21-24 years of age at the time when the offence was committed. We are informed that the respondents have not been involved in any other offence after they were acquitted by the trial court on 1.6.85, more than a decade ago. All the respondents as well as prosecutrix must have by now got married and settled down in life. These are some of the factors which we need to take into consideration while imposing an appropriate sentence on the respondents.\nWe accordingly sentence the respondents for the offence Under Section 376 IPC to undergo five years' RI each and to pay a fine of Rs. 5000 each and in default of payment of fine to 1 year's RI each. For the offence Under Section 363 IPC we sentence them to undergo three years R.I. each but impose no separate sentence for the offence Under Section 366/368 IPC. The substantive sentences of imprisonment shall, however, run concurrently.\"\n23.  The decision does not lay down any legal principle. It does not create a binding precedent. We have noticed that the same learned judge has spoken in different voice in Bodem Sundara Rao1995 Indlaw SC 1760 (supra).\n24.  For the reasons aforementioned, the judgment of the High Court is set aside so far as it relates to the quantum of sentence and the judgment awarded by the trial court is restored. It is directed that the respondent be taken in custody forthwith to serve out the remaining sentence. The appeal is allowed to the aforementioned extent.\nAppeal allowed\n"}
+{"id": "PNLbWphJeV", "title": "", "text": "Hari Kishan And Anr. v Sukhbir Singh And Ors\nSupreme Court of India\n\n25 August 1988\nCriminal Appeal No. 74 and 75 of 1986.\nThe Judgment was delivered by : K. J. Shetty, J.\n1.  These two appeals, by special leave, are directed against a judgment of the High Court of Punjab & Haryana in Criminal Appeal No. 128-SP of 1984. The common respondents in the appeals. were prosecuted for various offenses in the court of Additional Sessions judge, Faridkot. By judgment dated February 28, 1984 learned Judge convicted and sentenced the accused as follows:\n\"Keeping in view the circumstances of the case and the part played by each of them I, hereby sentence Sukhbir, Sukhpal and Surat Singh accused to undergo R.I. for four years u/s 307/149 IPC. Each of Om Pal, Dhan Pal, Mannu and Siri Chand are ordered to undergo R.I. for three year. u/s 307/149 IPC.\nEach of the seven accused are further ordered to undergo R.I. for one year 148 IPC, two years R.I. u/s 325 149 IPC and one year R. I. s/u 323/149 IPC. Keeping in view the circumstances of the case. all the sentences shall run concurrently.\"\n2.  The accused appealed t the High Court challenging the conviction and sentence. The High Court by the judgment under appeals acquitted Sukhpal Singh and Surat singh of all charges by giving them the benefit of doubt. The other accused who are respondents herein are also acquitted of the offence under s. 307/149 and s. 148 IPC. There conviction and sentence under s. 325/149, 323/149 and s. 148 IPC are however. maintained. They are released on probation of good conduct. Each one of them, is ordered to pay compensation of Rs. 2,500 to Joginder who was seriously injured in the incident. In default to pay the compensation they are directed to serve their sentence. The operative portion of the judgment runs like this:\n\"There is no previous history of enmity between two parties. The occurrence is the outcome of a sudden flare up. I think, these five appellants namely Sukhbir Singh Dhanpal, Mannu, Siri Chand and Om Pal are entitled their benefit under s. 360 Cr. P.C. Consequently, I suspend their sentence under s. 325/149, 323/149 and s. 148 IPC and order that the appellants namely Sukhbir Singh, Dhan Pal Mannu. Siri Chand and Om Pal be released on probation on their entering into bonds of Rs.3,000 each with one surety in the like amount for a period of one year, to the satisfaction of the trial court, undertaking to appear in the court to receive the sentence during the said period whenever called upon to do so and in the meantime to keep peace and be of good behavior. However, each one of the appellant would pay Rs.2,500 as compensation payable to Joginder injured. Compensation if not paid within two months, the appellants namely Sukhbir Singh, Dhanpal. Mannu, Siri Chand and Om Pal would be called upon to serve their sentence. But for this modification, appeal fails and is hereby dismissed.\nIn view of s. 12 of the Probation of Offenders Act no disqualification would attach to the appellants due to this conviction.\nSd/-K.P.S.Sandhu\nJudge\"\nDt. November 13, 1984\n3.  In these appeals, there is no serious dispute with regard to acquittal of Sukhpal Singh and Surat Singh. The prosecution case that they were armed with Barchha has not been proved. There was no incised injury on the victim or any of the prosecution witnesses. Their participation in the commission of crime therefore appears to be doubtful. The High Court was justified in acquitting them.\n4.  Counsel for the appellants are, however, vary critical of the order of High Court with regard to the remaining accused. It is urged that the High Court was too much charitable to, them. The intention of accused was obviously to commit murder of joginder. Their acquittal under s. 307 IPC is characterised as perverse. At any rate, it is said that they ought not have been put on probation. It is an abuse of the process of Court. They should have been properly sentenced by term of imprisonment and fine. It is also urged that Joginder has sustained permanent disability due to head injury and no amount of compensation would be adequate for him except severe punishment to the accused as a general deterrence. Counsel for the accused on the other hand, seeks to support the order of the High Court in every respect.\n5.  In the light of the submissions, three questions arise consideration (i) whether the respondents are not guilty of the offence under s. 307/149 IPC; (ii) whether the High Court was justified in extending the benefit of s. 360 Cr.P.C. and releasing the accused on probation of good conduct; and (iii) whether the compensation awarded to Joginder could be legally sustained, and if so, what should be the proper compensation?\n6.  For a proper consideration of these questions, we may summarise briefly the factual background: The rival parties in this case are collaterals. On September 28, 1982 at about 8/9 a.m. they had an altercation near the tubewell belonging to Hari Kishan. Joginder is the son of Hari Kishan. Virender another injured in this case is nephew of Hari Kishan. Hari Kishan was sitting near his tubewell. Virender and Joginder were sowing Berseem crop. The accused carne from the side of the tubewell. They were armed with Ballams and Dangas. One of them raised a Lalkara at which the accused attacked Virender and Joginder. In the brawl that followed some of the accused were also injured. The injured were removed to Civil Hospital, Ballabgarh. The Medical Officer there referred them to Safdarjung Hospital, New Delhi. Finally they landed themselves at the AIIMS, New Delhi. They were examined by the Doctors. Virender was found to have two injuries caused by blunt weapons. Joginder was found to have head injury. Amongst the accused Siri Chand, Dhan Pal, Om Pal and Sukhbir Singh were injured. They were medically examined in AIIMS or Safdarjung Hospital, New Delhi. Siri Chand had four injuries including a fracture caused by blunt weapon. that has been proved by Dr. Rita Sood (DW1). Dhan Pal and Om Pal each had four injuries but simple. They were also, caused by blunt weapons. Dr. V.K. Dhingra (DW 2) has spoken to that. Sukhbir singh had one incised wound on his person. Dr.Anurag Saxena (DW 3) has testified.\n7.  On the first question as to acquittal of the accused under s.3O7/149 IPC, some significant aspects may be borne in mind. Under s.307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge or the accused must be such as is necessary constitute' murder. Without this ingredient being established, there can be no offence of \"attempt to murder\". Under s. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used. motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration it, determine the intention.In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it.\n8.  They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but not provoked or tempted to use the cutting edge of the weapon. It is very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under s. 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under s. 307 IPC.\n9.  The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate.\n10.  This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs. 2,500 as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to s. 357 Cr. P.C. Section 357, leaving aside the unnecessary, provides:\n\"357. Order to pay compensation:\n(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part,the Court may. when passing judgment. order the whole or any part of the fine recovered to be applied-\n(a) in defraying the expenses properly incurred in the prosecution;\n(b) in the payment to any person of compensation for any loss or injury caused by the offence. When compensation is in the opinion of the Court, recoverable by such person in a civil Court;\nXXXXX XXXXX XXXX XXXXX XXXXX XXXXX\n(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment. order the accused person to pay, by way of compensation. such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.\n(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.\n(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter. the Court shall take into account any sum paid or recovered as compensation under this section.\"\n11.  Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case. we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent. a constructive approach to, crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.\n12.  The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.\n13.  Joginder in this case is an unfortunate victim. His power of speech has been permanently impaired. Doctor has certified that he is unable to speak and that is why he has not stepped into the witness box for the prosecution. The life long disability of the victim ought not to be bye- passed by the Court. He must be made to feel that the Court and accused have taken care of him. Any such measure which would give him succor is far better than a sentence by deterrence.\n14.  The compensation awarded by the High Court, in our opinion, appears to be inadequate having regard to the nature of injury suffered by Joginder. We have ascertained the means of accused and their ability to pay further sum to the victim. We are told that they are not unwilling to bear the additional burden. Mr. Lalit learned counsel said that his clients are willing to pay any amount determined by this Court. It is indeed a good gesture on the part of counsel and his clients.\n15.  With due regard to all the facts and circumstances of the case, we consider that Rs.50,000 compensation to Joginder would meet the ends of justice. We direct the respondents to pay the balance within two months in equal proportions.\n16.  The order of the High Court is modified only to the extent of Compensation as indicated above and in all other respects it is kept undisturbed. The appeals are accordingly disposed of.\nAppeal disposed of\n"}
+{"id": "QR6FEecAtp", "title": "", "text": "Kashmiri Lal v State Of Haryana\nSupreme Court of India\n\n15  May  2013\nCRIMINAL APPEAL NO. 1576 OF 2009\nThe Judgment was delivered by : Dipak Misra, J.\n1. This Appeal by Special Leave is directed against the judgment of conviction and order of sentence dated July 31, 2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 543-SB of 1996 whereby the learned Single Judge has given the stamp of approval to the conviction and sentence recoded by the learned Additional Sessions Judge, Kurukshetra in S.T. No. 15 of 1993 on 24.7.1996 whereby he, after finding the accused-appellant guilty of the offence punishable u/s. 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity 'the Act'), had sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for a period of one year.\n2. The factual matrix as has been undraped by the prosecution is that on 23.12.1992 about 10.00 A.M., Kaptan Singh, the Sub-Inspector, along with other police officials, was present near Deer Park, Pipli, in connection with excise checking in a Tata Mobile Vehicle. Receiving a secret and reliable information to the effect that the accused- appellant would come to the 'dhaba' situated on the G.T. Road, on his scooter, carrying opium and if a picket was held, he could be apprehended, he sent a V.T. message to the Additional Superintendent of Police to reach the place. Thereafter, Kaptan Singh, along with other police officials, went to the T-point of Jahajo Wali Road on G.T. Road and held a picket. In the meanwhile, the accused was seen coming on his scooter, bearing No. DLS-1756 and at that time Mohmad Akil, Additional S.P., Kurukshetra, along with his staff arrived at the spot. He was apprised of the situation and, thereafter, on his instructions search of the tool box of the scooter was conducted and a polythene bag containing of 5 Kg. of opium was recovered. Ten grams opium was separated as sample and the remaining opium was put into a separate container. The sample and the container, containing the remaining opium, were converted into parcels duly sealed with seals and taken into possession vide a separate recovery memo. The accused was arrested and a ruqa was sent to the police station on the basis whereof a formal FIR was registered. After completing the investigation the charge-sheet was submitted before the competent court.\n3. Before the trial court the accused abjured his guilt, pleaded false implication and claimed to be tried.\n4. The prosecution to substantiate its case examined Banarsi Das, Head Constable, PW-1, Dharam Singh, ASI, PW-2, Mam Chand, Constable, PW-3, Ram Udit, Head Constable, PW-4, Akil Mohamad, S.P., PW-5 and Kaptan Singh and the Investigating Officer, PW-6. The accused in his statement u/s. 313 of the Code of Criminal Procedure stated that he was employed in the 'dhaba', namely, Man Driver Dhaba at village Teora and he had been apprehended from the 'dhaba' and falsely implicated. In support of his defence, he examined Karan Singh, DW-1, who had recorded the statements of PW-1 and PW-3.\n5. Before the learned trial Judge, it was contended that the prosecution had miserably failed to bring home the charge by resting its case solely on the version of official witnesses and not examining any independent witness despite the fact that the accused was apprehended and alleged contraband articles were seized while he was in a 'dhaba'; that there had been non-compliance of S. 50 of the Act inasmuch as he was not properly informed about his right to be searched in presence of a gazetted officer or a Magistrate; that the recovery from the tool box of the scooter would not amount to conscious possession of the contraband article by the accused; and that the non-production of the scooter in court falsified the version of the prosecution. The learned trial Judge dealt with all the aspects and came to hold that the search and seizure was valid; that the accused had not been falsely implicated; and that the non-production of the scooter did not in any manner affect the case of the prosecution. Being of this view, he found the accused guilty and sentenced him as has been stated hereinbefore.\n6. Against the conviction and sentence the accused preferred an appeal before the High Court. Apart from raising the contentions which were raised before the learned trial Judge, a further submission was put forth that as per the report of the Forensic Science Laboratory morphine content contained in the sample was found only to be 1.66% and as the morphine percentage in the bulk of the opium was required to be taken into consideration, the alleged recovery of opium did not fall within the ambit of non-commercial quantity and hence, the sentence should have been imposed regard being had to the non- commercial quantity and not commercial quantity. The High Court concurred with the view expressed by the learned trial Judge and proceeded to deal with the additional submission and ultimately held that as the seizure had taken place on 23.12.1992, the amendment which has been brought into the Act in the year 2001 would not be attracted.\nBe it noted, the non-production of the scooter before the trial court was highlighted with immense vehemence but the learned Single Judge repelled the said submission being devoid of any substance and further directed confiscation of the scooter in question as envisaged under the provisions contained in Ss. 60(3) and 63 of the Act. The aforesaid conclusions led to the dismissal of the appeal.\n7. Questioning the legal substantiality of the judgment of conviction learned counsel for the appellant, has raised the following contentions: -\n(i) It was incumbent on the part of the prosecution to examine the independent witnesses when the search and seizure had taken at a public place, i.e., in a 'dhaba' and not to rely exclusively on the official witnesses to prove the case against the accused.\n(ii) There has been non-compliance of S. 50 of the Act as he had not been informed about his right to be searched in presence of a gazetted officer or a Magistrate and that vitiates the conviction.\n(iii) The High Court has fallen into serious error by not treating the seized opium failing within non-commercial quantity despite the report of the Forensic Science Laboratory that the morphine content contained in the sample was 1.66%.\n(iv) The non-production of the scooter creates an incurable dent in the foundation of the case of the prosecution and the said aspect having not been appositely dealt with by the learned trial Judge as well as by the High Court, the judgment of conviction and order of sentence are liable to be set aside.\n8. Learned counsel for the State, resisting the aforesaid submissions, has advanced the following proponements: -\n(a) The non-examination of independent witnesses in the case at hand does not affect the prosecution case, for there is no absolute rule that the prosecution cannot establish the charge against the accused by placing reliance on the official witnesses.\n(b) As the contraband goods have been seized from the tool box of the scooter and not from the person of the accused, S. 50 of the Act has no applicability.\n(c) The morphine content in the seized opium, in the case at hand, has no relevance to determine the commercial or non-commercial quantity regard being had to the fact that the occurrence had taken place in the year 1992 whereas the amendment was incorporated in the statute book in 2001.\n(d) The non-production of the scooter in the court cannot be a ground for setting aside the conviction since all the witnesses have specifically mentioned about the registration number of the scooter and there is no justification to discard their testimony.\n9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1988 Supp SCC 686 1988 Indlaw SC 28, State, Govt. of NCT of Delhi v. Sunil and another, (2001) 1 SCC 652 2000 Indlaw SC 3131 and Ramjee Rai and others v. State of Bihar, (2006) 13 SCC 229 2006 Indlaw SC 459. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy.\n10. The second plank of submission pertains to non-compliance of S. 50 of the Act. There is no dispute over the fact that the seizure had taken place from the tool box of the scooter. There is ample evidence on record that the scooter belongs to the appellant. When a vehicle is searched and not the person of an accused, needless to emphasise, S. 50 of the Act is not attracted. This has been so held in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 2010 Indlaw SC 1516, Madan Lal v. State of H.P., (2003) 7 SCC 465 2003 Indlaw SC 631 and State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 2005 Indlaw SC 285. Thus, the aforesaid submission of the learned counsel for the appellant is without any substance.\n11. The third limb of submission pertains to determination of commercial and non-commercial quantity. The learned counsel for the appellant has commended us to the decision in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 (4) SCALE 592 2008 Indlaw SC 393. In the said case it has been held as follows: -\n\"12. As a consequence of the Amending Act, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term 'small quantity' is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalized sentence structure, the punishment would vary depending upon whether the quantity of offending material is 'small quantity', 'commercial quantity' or something in-between.\"\nAfter so stating, the two learned Judges proceeded to state that the intention of the legislature for introduction of the amendment to punish the people who commit less serious offence with less severe punishment and those who commit great crimes, to impose more severe punishment. Be it noted, in the said case, the narcotic drug which was found in possession of the appellant as per the Analyst's report was 60 gms., which was more than 5 gms., i.e., small quantity, but less than 250 gms., i.e., commercial quantity.\n12. In the case at hand, the High Court has opined that as the opium was seized on 23.12.2992, the amendment brought in the statute book would have no applicability. It is also wroth noting that the appeal was preferred in the year 1996. In Basheer Alias N.P. Basheer v. State of Kerala, (2004) 3 SCC 609 2004 Indlaw SC 1092 while dealing with the constitutional validity of the proviso to sub-s. (1) of S. 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001), this Court upheld the constitutional validity of the said provision and opined thus: -\n\"In the result, we are of the view that the proviso to S. 41(1) of the Amending Act 9 of 2001 is constitutional and is not hit by Art. 14. Consequently, in all cases, in which the trial had concluded and appeals were pending on 2.10.2001, when Amending Act 9 of 2001 came into force, the amendments introduced by the Amending Act 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the NDPS Act, 1985, as it stood before 2.10.2001.\"\n13. Yet again in Nayak Ramesh Chandra Keshavlal v. State of Gujarat, (2004) 11 SCC 399 2004 Indlaw SC 545 a contention was raised that when the quantity seized is small one, as enumerated in notification bearing SO No. 1055 (E) dated 19.10.2001, published in the Gazettee of India (Extra), Part II, S. 3(ii) dated 19.10.2011, the punishment should be less. The Court, while repealing the said submission expressed as follows: -\n\"Proviso to S. 41 of the amending Act referred to above, lays down that the provisions of the amending Act shall not apply to cases pending in appeal, validity of which was challenged before this Court on the ground that the same, being discriminatory, was violative of Art. 14 of the Constitution. But this Court in the case of Basheer upheld the validity of the said provision and, consequently, the provisions of the Amendment Act shall have no application in the present case, as on the date of coming into force of the amending Act, the case of the appellant was pending in appeal before the High Court.\"\n14. As in the case at hand, the appeal was pending in 1996, the ameliorative provision brought by way of amendment in the year 2001 would not be applicable to the accused-appellant. Therefore, the submission advanced by the learned counsel for the appellant is devoid of any substratum and, accordingly, stands rejected.\n15. The last contention urged relates to the non-production of the scooter in the court. The learned counsel for the appellant has harped and hammered on this submission and we must say that the vehemence of the argument reflected in this regard is much ado about nothing. All the documents pertaining to the scooter were seized and the witnesses had stated in a categorical manner about the registration number of the scooter. From the material brought on record, it is crystal clear that the scooter belonged to the appellant and the search and seizure was made in the tool box of the scooter. Under these circumstances, it can safely be concluded that the submission that the scooter was not produced in the court is entirely devoid of merit and, in fact, it amounts to an effort which is like building a castle in Spain. Thus, we unhesitatingly repel the aforesaid contention.\n16. Resultantly, the appeal, being devoid of merit, stands dismissed.\nAppeal dismissed\n"}
+{"id": "50OXirZRiR", "title": "", "text": "Ramjee Rai and Others v State of Bihar\nSupreme Court of India\n\n24 August 2006\nW.P. (Cr.) 1621 of 2005\nThe Judgment was delivered by: S. B. Sinha, J.\n1. The Appellants herein with Bharat Rai and Ganeshi Rai (since deceased) were prosecuted for commission of the offence of causing intentional death to one Baijnath Singh and disappearance of his dead body.\nA First Information Report was lodged by Rajnath Singh (PW-3), brother of Baijnath Singh (deceased) alleging that on 21.8.1980 at about 4 in the afternoon he along with him was at their plot of land situated by the side of a Dhab in the north of village Dudhiyan where they had gone for cutting Masuria Crops. The Appellants together with Bharat Rai and Ganeshi Rai, variously armed, took them forcibly on a boat to the Dhab letting the boat moving freely. After the boat had proceeded some distance, they started assaulting the deceased. He, however, finding an opportunity in this behalf jumped from the boat and started swimming towards the higher ground, shouting and crying for help. Baijnath Singh died as a result of the assault and his dead body was carried away in their boat. It was stated that the occurrence had been seen by Satyanand Singh (PW-1), Kameshwar Singh (PW-2) and Pancham Singh (PW-5).\n2. It was alleged that in view of the flood conditions as also due to night fall, the report could not be lodged in the night. As regards motive for commission of the said offence, the informant alleged that the deceased had a piece of land near the house of the accused and they repeatedly used to pluck the maize and cut away the Masuria crop grown on that land as a result whereof the parties had been quarreling with each other. Allegedly, Baijnath Singh had also apprehended the accused cutting away his Masuria crop wherefor he had abused them in retaliation. The accused persons are said to be belonging to one family and they had been indulging in commission of theft and dacoity. The murder of Baijnath Singh was said to have committed in retaliation of the said incident. In the First Information Report, two accused were said to be carrying country made pistols while the rest were armed with gandasas, lathies and spears. The dead body was recovered after five days, i.e., 26.8.1980.\nThe dead body was first seen by the Chowkidar (PW-4) of the village. He reported to the informant thereabout. He came and also identified the dead body. All the accused persons were convicted for commission of an offence under Section 302/34 read with S. 201 of the Indian Penal Code and sentenced to undergo imprisonment for life under Section 302/34 and five years rigorous imprisonment under S. 201 of the Indian Penal Code by a judgment and order dated 31.7.1987. An appeal preferred there against by the accused has been dismissed by the High Court by the impugned judgment.\n3. Mr. P.S. Mishra, learned senior counsel appearing on behalf of the Appellants, submitted that the learned Sessions Judge as also the High Court committed a serious error in holding that the dead body had been identified to be that of the deceased. According to the learned counsel, keeping in view the post mortem report which clearly showed that only bones were visible, it could not have been identified and in that view of the matter the prosecution case cannot be said to have been proved.\n4. It was further submitted that some of the independent witnesses who could throw light on the prosecution case had deliberately been withheld by the prosecution as a result whereof the Appellants suffered grave prejudice. Non-examination of independent and uninterested witnesses by the prosecution, having regard to the fact of the case, Mr. Mishra would submit, was imperative. Reliance in this behalf has been placed on Sahaj Ram and Others v. The State of U.P. [(1973) 1 SCC 490 1972 Indlaw SC 432] and Habeeb Mohammad v. The State of Hyderabad 1954 SCR 475 1953 Indlaw SC 118].\n5. The High Court, it was urged, committed a serious error in passing the impugned judgment insofar as it failed to take into consideration the fact that the deceased was having criminal background and, thus, could have been done to death by others. The Appellants, it was contended, have been implicated because of the enmity. Inconsistency in depositions of PWs, it was submitted, had also not been taken into consideration by the courts below. It also argued that the Trial Court as also the High Court ought to have considered individual overt acts on the part of each of the Appellants.\n6. Ms. Kirti Sinha, learned counsel appearing on behalf of the State, on the other hand, submitted that the learned Sessions Judge and the High Court rightly convicted the Appellants herein in view of the evidence of the eye witnesses to the occurrence, viz., PWs. 1, 2, 3 and 5. The learned Trial Judge in his judgment inter alia held:\n\"(i) The injuries inflicted on the body of the deceased were homicidal in nature.\n(ii) The prosecution has been able to show that the dead body of Baijnath Singh had been identified.\n(iii) Although PW-3 was inimically disposed of towards the accused, it cannot be said that he had falsely implicated the Appellants.\n(iv) The prosecution has assigned sufficient reasons for non- examination of the witnesses named in the chargesheet.\n(v) Evidences adduced on behalf of the prosecution witnesses being consistent, the prosecution case has been proved.\"\n7. The High Court in its judgment opined:\n\"(i) The prosecution has brought on records sufficient evidences to prove that the assailants had arrived on a boat, assaulted the deceased and carried away his dead body.\n(ii) The prosecution witnesses being closely associated with the deceased, it was not difficult for them to identify the corpse.\n(iii) Ocular evidences being consistent in nature, the prosecution has been able to prove the charges as against the Appellants.\"\n8. PW-3 is the informant. The First Information Report was lodged at the earliest possible opportunity. The informant categorically stated that he not only saw the deceased being assaulted, he at the first opportunity jumped from the boat, swam across the Dhab and somehow escaped from the clutches of the Appellants. He categorically stated that he had gone to Akilpur, which was an out-post but the Officer-Incharge was not present there thence. He thereafter returned to his house and in the next morning came to the Danapur Police Station on a boat.\n9. It is not in dispute that the dead body of Baijnath Singh was first seen by Ganga Paswan, who was a chowkidar. He was also resident of same village. He knew the deceased from his childhood. He categorically stated that the deceased, on his right hand side of the forehead had patch of grey hair. A one paisa coin was also tied against his waist. He had thick mustache and same resembled with that of Baijnath Singh. He identified the dead body seeing his face and other features. The dead body was found in a field of maize situate in Mauza Banwarichak. It was at a distance of about 1.5 kms. from the place of occurrence.\nAccording to him, river Ganges flows at a distance of 3 kms. South from that field and about 20 kms. from the West of the said field. From the place where the dead body was found, river Ganges flows at a distance of 1.5 miles East. The place has been completely surrounded by the said river. According to him, crops had also been sown in the field.\n10. The dead body was also noticed by Ram Swarup Singh. The informant (PW-3) was informed thereabout. He also went to the spot and identified the dead body as that of his brother. The police authorities were also informed in regard thereto.\n11. Another witness who was examined by the prosecution was Satyanand Singh (PW-1). He was also an eye-witness. He was sitting on a Machan. He not only named the accused persons having assaulted Baijnath Singh, but also stated that he had seen the informant escaping from the clutches of the accused.\n12. PW-2 another eye-witness is Kameshwar Singh. He was also in his maize field at the time of occurrence. He corroborated the statements of PWs 1 and 3. He is again an eye-witness. He also identified the dead body. In his deposition, he stated:\n\"I told the police that I was in my field on the date of incident. I saw Baijnath Singh, Rajnath Singh in their field before the coming of the accused. There was sickle in their hand at that time. At the time when Rajnath Singh jumped from the boat there was nothing in his hand. The field of Rajnath Singh in Dhudhiya village is at a distance of 2-4-10 Laggi from the Basti.\"\n13. He also stated that despite cries nobody from the village came in view of the water. They have gone to their respective fields by wading through risen water. One Pancham Singh was examined as PW-5. He also was an eye- witness. He testified having seen Baijnath Singh was being assaulted. According to him, as the deceased stopped shouting, he realized that he was no more. The learned Sessions Judge had placed implicit reliance on the testimonies of these witnesses opining:\n\"Therefore, in view of the discussions made above, I find that all the eye-witnesses are quite competent and reliable and their evidence coupled with the evidence of Doctor (PW.6) and I.O. (PW.7) fully establishes that on the alleged date all the accused persons armed with lathi, Bhala, Gandasa, pistol came on boat, in the field of the informant and forcibly picked up the informant and Baijnath Singh on boat, and then went towards Dhab and assaulted Baijnath Singh with their respective weapons, causing his death.\"\n14. The High Court also in its impugned judgment discussed the evidence of the eye-witnesses and held:\n\"We are unable to accept the submission and on a careful examination of the written report and the depositions of all the witnesses, including the informant, P.W.3, we find no inconsistency in those statements. In the written report, it is stated that while the informant and his brother Baijnath Singh were cutting Masuriya crop on their plot of land, the accused arrived with variously armed and threatening them with their arms, they forcibly took him and his brother to the Dhab on a boat.\nWe are unable to read to statement in the written report to mean that the accused had come to the land, where the informant was there with his brother, on foot and they took them along on foot up to Dhab where they boarded the boat that was waiting there. The statement in the written report on a careful reading plainly means that the accused arrived there on a boat and forcibly picked up the informant and his brother on it and took them in the direction of the Dhab. We, thus, find no inconsistency, much less, any contradiction in the prosecution story as stated in the written report and as deposed before the court by the witnesses.\"\n15. In regard to the identification of the dead body, the learned Sessions Judge held that the dead body was that of Baijnath Singh which had duly been proved by PWs 3 and 4. We may at this juncture notice the medical evidence.\n16. Dr. Sheonandan Barunwal, who examined himself as PW-6, proved the post mortem report. The dead body before him had been identified as that of Baijnath Singh by the constable, Rajnath Singh and the Chowkidar. The age of the deceased was said to be 35 years. The clothes were having a ganji, dhoti and a small chadar. The body was in a decomposed condition. Rigor mortis was absent. The body had three cut wounds. It was categorically stated that the hairs of scalp were intact. The post mortem report does not suggest that there was no mark on face or identification marks were totally absent. In his opinion, the death might have been due to amputation of hands. He categorically stated that the dead body was thrown in water and the soft parts were eaten away by the fish. According to him, it was difficult to assess the period past since death. But, according to him, it may be approximately 10 days.\n17. The Appellants did not even suggest that the deceased did not have the special features whereabout PW-4 made categorical statement. His age at the time of death had also not been disputed. The Investigating Officer Ram Naresh Shukla (PW-7) also stated in categorical terms that the entire flesh below the stomach had been eaten away by the animals and the dead body had been identified by Chowkidar Ram Swarup Singh and Raghunandan Paswan, Ganga Paswan and Kameshwar Singh of Banwarichak stating that the same was that of Baijnath Singh. Even the age of the deceased was not disputed.\n18. It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the event, there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead body. [See Rama Nand and Others v. State of Himachal Pradesh, (1981) 1 SCC 511 1981 Indlaw SC 129].\n19. In Ram Gulam Chaudhary and Others v. State of Bihar [(2001) 8 SCC 311 2001 Indlaw SC 228], this Court noticed the decision in Rama Nand 1981 Indlaw SC 129 (supra) and opined:\n\"There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder \"\n20. What was, therefore, necessary for the courts below to arrive at a finding of guilt as against the Appellants in regard to their involvement in the crime. It is not a case where the dead body could not be identified. There had been sufficient materials placed by the prosecution to bring home the said fact. So far as submission of Mr. Mishra that some independent witnesses have not been examined is concerned, from the records it may be noticed that it would appear that the public prosecutor categorically stated before the learned Sessions Judge that some of the witnesses were inimically disposed of towards the informant.\nThe Appellants have not brought on record any material to show that the aforementioned stand taken by the prosecution was not correct. It is true that ordinarily the prosecution should examine all witnesses whose names have been disclosed in the chargesheet; but, then the same cannot be said to be a rule having universal application. Each case has to be considered on its own facts.\n21. It is now well-settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward.\n22. In Sheelam Ramesh and Another v. State of A.P. [(1999) 8 SCC 369 1999 Indlaw SC 1505], this Court opined:\n\"Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.\"\n23. Yet again in Pohlu v. State of Haryana [(2005) 10 SCC 196 2004 Indlaw SC 1672], this Court opined:\n\"It is true that it is not necessary for the prosecution to multiply witnesses, if it prefers to rely upon the evidence of the eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution \"\n24. In Balram Singh v. State of Punjab, [(2003) 11 SCC 286 2003 Indlaw SC 435], this Court opined:\n\"The appellants' contention that the prosecution has relied only on interested evidence of PWs 1 and 2 and has not examined the other independent witnesses who were present or for that matter the non-examination of another son of the deceased by the name of Jasbir Singh should give rise to an adverse inference, cannot also be accepted because so far as Jasbir Singh is concerned, though there is some material on record to show that he was examined by a doctor on the night of the incident, there is no material to show that he was actually involved in this fight. His name is not mentioned in the FIR also, therefore if the prosecution has thought it not necessary to examine this witness, we do not think an adverse inference could be drawn on the basis of this non-examination of the said Jasbir Singh. This view of ours also holds good in regard to the so-called other independent witnesses who were present at the time of the incident since in a family feud like this it is rare that an independent witness would come forward to give evidence.\"\n25. Yet again in State of U.P. v. Anil Singh [1988 Supp SCC 686 1988 Indlaw SC 28], it was observed:\n\"Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.\"\n26. In Habeeb Mohammad 1953 Indlaw SC 118 (supra), whereupon Mr. Mishra has placed strong reliance, this Court stated that prosecution was not bound to call all available witnesses irrespective of consideration of number of reliability, witnesses essential to the unfolding of the narrative on which the prosecution was based must be called by the prosecution, whether in the result the effect of their testimony is against the case of the prosecution.\n27. However, in that case the Appellant there was a Subedar. The allegation against him was that he ordered the police to fire. The Deputy Commissioner of Police who had accompanied the Appellant and had witnessed the occurrence had not been examined by the prosecution. It was in that fact situation held that the prosecution should have examined the said witness. It was held that the Appellant was considerably prejudiced by the omission on the part of the prosecution to examine the said officer and other officers in the circumstances of the said case and the conviction of the Appellant merely based on the testimony of the police jamedar cannot be said to have been arrived at after a fair trial, particularly, when no satisfactory explanation has been given or even attempted for this omission.\n28. In Sahaj Ram 1972 Indlaw SC 432 (supra) again, relied by Mr. Mishra, there was a group rivalry. In that case, the Court found serious mistakes committed by the Sessions Judge as also the High Court in appreciating evidence. Keeping in view the peculiar nature of the case and having regard to the fact that there had been group rivalry, it was opined:\n\"As pointed out by this Court in Habeeb Mohammed v. State of Hyderabad though the prosecution is not bound to call all available witnesses irrespective of considerations of number or reliability, witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case of the prosecution. This Court approved the decision of the Judicial Committee in Stephen Seneviratne v. King laying down a similar proposition. In this case the first information report clearly states that Shitabi, CW 1, was an employee of the deceased and he was with his master at the time of the incident. He has also given information about the incident to PW 1 and others. Whatever justification there may have been for not examining Ram Prasad, the prosecution, in our opinion, was not justified in keeping back Shitabi \"\n29. In Lakshmi and Others v. State of U.P. [(2002) 7 SCC 198 2002 Indlaw SC 1780], this Court opined:\n\"Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence u/s. 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death.\"\n30. In the instant case, however, some of the witnesses examined by the prosecution are independent. The evidence of all the witnesses are more or less consistent. Nothing has been pointed out to discredit their testimonies. The learned Sessions Judge as also the High Court, therefore, cannot be said to have committed any mistake in relying upon the testimonies of the said witnesses.\n31. A contention was raised that autopsy surgeon opined that the death must have taken place 10 days prior to the post mortem examination and in that view of the matter the prosecution case should be disbelieved. The murder allegedly took place on a boat. The dead body was thrown in the water. It remained under water for more than five days. Rigor mortis was absent and the body was fully decomposed. The soft tissues of some of the parts of the body had been eaten away by fish. Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time lag between the date of post mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death.\n32. In Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh [(2006) 3 SCALE 452 2006 Indlaw SC 144], this Court observed:\n\"In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshvarlu (P.W.13).\nIn Modi's Medical Jurisprudence, 22nd edition, as regard duration of rigor mortis, it is stated:\nIt was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post-mortem report.\"\n33. Submission of Mr. Mishra is also to the effect that the learned Sessions Judge had not discussed about the individual overt acts of the Appellants. The prosecution witnesses categorically stated about the whole incident. The occurrence took place on a boat. Out of two persons forcibly taken on the boat, PW-3 could escape. There were fourteen accused persons. They had inflicted injuries upon him. Post mortem suggests that sharp cutting weapons had been used.\nTwo accused persons, as noticed hereinbefore, were held to be possessed of some cutting weapons. The Appellants came in a group. Some of them started assaulting the deceased with weapons in their hands. In a case of this nature, it was well nigh impossible for the first informant to pinpoint the exact overt acts committed by each of the accused persons individually. S. 34 of the Indian Penal Code, therefore, is clearly attracted in a case of this nature.\n34. In a recent judgment in Bishna Alias Bhiswadeb Mahato and Others v. State of W.B. [(2005) 12 SCC 657 2005 Indlaw SC 1047], the law has been stated in the following terms:\n\"For the purpose of attracting S. 149 and/or 34 IPC, a specific overt act on the part of the accused is not necessary. He may wait and watch and the inaction on the part of an accused may sometime go a long way to hold that he shared a common object with others.\"\n35. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned judgment. The appeal is dismissed.\nAppeal dismissed.\n"}
+{"id": "18Y2bTu5X1", "title": "", "text": "State Government of Nct of Delhi v Sunil and Another\nSupreme Court of India\n\n29 November 2000\nAppeal (Crl.) 1119-1120 of 1998\nThe Judgment was delivered by : K. T. Thomas, J.\n1.  Two sex maniacs libidinously ravaged a tiny female tot like wild beasts and finished her off. Police after investigation found that the two respondents herein are those two fiends. A Sessions Court upheld the said police version as correct. He sentenced one of them to death penalty and the other to life imprisonment, but a Division Bench of the High Court of Delhi declined to believe the police version as true and consequently the two respondents were acquitted. This appeal by the State is by special leave.\n2.  The little girl was Anuradha and she was aged only four. She was fondly taken away from her mothers house on the forenoon of 5.9.1992. Her dead body was taken up by her mother on the same night from the house of first accused Sunil.\n3. When the doctor conducted autopsy on the dead body he described the dimensions of the imprints left in the infantile body reflecting a horrible sexual molestation inflicted on the child. Next day the police arrested the two accused (A1-Sunil and A2-Ramesh) and after completing the investigation charge-sheeted both of them for offences under Sections 364, 376, 377 and 302 read with Section 34 of the Indian Penal Code. After the trial the sessions court convicted both of them under all the aforesaid counts and sentenced A2 Ramesh to death and A1 Sunil to imprisonment for life on the charge of murder and awarded lesser sentences for the remaining counts.\n4.  Details of the prosecution case are the following: Anuradhas mother Sharda (PW10) was known to A1 Sunil and his mother (Giano Devi). Sharda had stayed in the house of Giano Devi for a few days and their acquaintance became closer. Sharda was working in a tube-light manufacturing factory during those days.\n5. As she needed a place to live in Giano Devi arranged a small hutment (Jhuggi) with the help of another lady (PW8 Tara) who was residing close-by. On the occurrence day Sharda went to the factory for work leaving her child Anuradha in the custody of PW8-Tara. At about 11 A.M. Sunil visited them and expressed to PW8-Tara that he would take the child and her clothes as well as some domestic utensils to PW10. Though PW8 suggested that this should be done only if Sharda permits, A1-Sunil took the child and her clothes and the utensils from his house during a short time when PW8-Tara had gone out to fetch milk. When she came home in the night she learnt from PW8-Tara that her child was taken away by Sunil. So she went to Sunils house.\n6. It was about 9.00 P.M. then. To her dismay she found her little child lying completely nude next to A2-Ramesh, on the second floor of the house, who was then deep in his sleep. Then Sunil, who was found in an inebriated mood, hurled a remark that I have dispatched Anuradha to heaven. She felt concerned as to what would have happened to the child. It was then she realised that her child was breathless. PW10- Sharda then took the child to the hospital, but the doctor who examined her pronounced her dead.\n7.  PW1 - Dr. Basant Lal conducted the autopsy on the dead body of the child at 12.00 noon on 7.9.1992. In his opinion the child would have died about 36 to 48 hours prior to the autopsy. He gave full details in his post-mortem report about the features noticed by him on the dead body. The corpse was full of abrasions and contusions. The prominent among them were counted by the doctor as 25 in number and he described the situs and dimensions of all of them. Among them, oval fashioned multiple abrasions on the left cheek appeared to him as marks of biting. Both the upper and lower lips of the child were bruised violently. Marks of violent handling of both the thighs, lower abdomen and pubic region are also described by the doctor.\n8. The vaginal orifice is described by the doctor in his report as follows:\n9. Labia majora and minora swollen and reddish blue in colour. Vaginal orifice dilated and blood is coming out of it. Right labia minora showing tears 1.6 x 0.1 cm. and on left side labia minora showing tear in an area of 1.5 x 0.2 cm in vertical plane. Labia majora showing contusion on both sides in an area of 3 x 2 cm each.\nAbout hymen the doctor described thus:\n10. Hymen showing tear at 5 and 6 Oclock position which was going upto the vaginal wall and triangular in shape in an area of 1.5 x 1 x 1 cm. There were tears on the sides and back of urethra opening upto hymen in an area of 1.4 x 1.2 cm. in triangular fashion.\nAbout the anus the doctor described as follows:\n11. Dilated and blood was coming out of it. The diameter was 1.5 cm. The area around the orifice was showing swelling with reddish contusion in an area of 2 cm.\n12.  DR. Basant Lal (PW-1) further noted that the vaginal orifice was so badly mutilated that one middle finger could be easily admitted into it. Even the tongue was not spared in that violence as the doctor found its position like this:\n13. The tongue was showing abrasion 0.5 x 0.5 cm. on its front right outer aspect with contusion around. Reddish bluish in colour Bite mark.\n14.  During examination of the head of the body PW1 noticed thick layered bluish-reddish effusion of blood on the right temporal parietal region. Though there was no fracture of the skull the duramater on the left side looked bluish, and there was thick subdural haemotoma in an area of 20x10x0.8 cm. and one fist full clotted blood, and patchy subarachnoid haemorrage all over the brain which were also noticed by the doctor.\n15.  From the woeful and eerie features described by the doctor no court could possibly escape from the conclusion that the little child was violently molested, ravished, raped and sodomised besides penile penetration having been made into her mouth. The remnants of extensive mangling of the tender body of the child would reflect the possibility of more than one rapist subjecting the child to such beasty ravishment.\n16.  Though the Sessions Court acted on the above medical report as reliable it is unfortunate that the Division Bench of the High Court expressed misgivings about it. The only basis for entertaining doubt about the correctness of the findings recorded by PW1 Dr. Basant Lal was that when the deceased was first examined by one Dr. Gajrat Singh at 11.40 P.M. on 5.9.1992 he noted only multiple bruises all over the body in Ext.PW11/1 MLC (Medico Legal Certificate).\n17. It was the said doctor who pronounced the girl dead. He made the above entry in the MLC. It must be noted that Dr. Gajrat Singh was not examined as a witness in the court. Apparently that doctor was not disposed to conduct a detailed examination on the dead body either because he was pretty sure that the body would be subjected to a detailed autopsy or because the doctor himself was in a great hurry. Whatever be the reason, no court could afford to ignore the report of the doctor who conducted the autopsy with meticulous precision about all the features noticed, merely on the strength of what another doctor had scribbled in the MLC at the initial stage.\n18.  Learned Judges of the High Court should have noticed that the evidence of PW1 Dr. Basant Lal was not even controverted by the defence as no question was put to him in cross-examination by the defence counsel. His testimony ought to have been given due probative value particularly when nothing was shown to doubt the evidence of that medical practitioner. Learned counsel for the respondents was not able to pick out even a single answer from his evidence which could at least throw a modicum of doubt about the correctness of his evidence. Hence we have to proceed on the premise that whatever PW1 Dr. Basant Lal  found on the dead body were the actual position noticed by him during autopsy. The Sessions Judge has rightly accepted that evidence and no exception can be taken thereto. Thus, it is beyond doubt that the little girl was raped and sodomised and that death was due to the injuries sustained in that exercise.\n19.  When the above premise is so certain the task of the court is narrowed down to the limited area i.e., were the two respondents the rapists or is there any reasonable scope to think that somebody else would have done those acts.\n20.  The trial court came to the conclusion that the culprits are the two respondents and none else. The Sessions Judge found that prosecution has established the following circumstances:\n(1) Sunil (1st accused) had taken the child from the house of PW8 Tara by about noon on 5.9.1992.\n(2) The child was recovered from the house of A1 Sunil and she was then found breathless.\n(3) That child was lying naked by the side of A2 Ramesh who was in deep sleep when the mother of the child lifted her up.\n(4) A1 Sunil, who was then in inebriated condition, blurted out that Anuradha was sent to heaven.\n(5) The blood-stained nicker of Anuradha was later recovered from the house of A2 Ramesh on the basis of a statement given to the police.\n21.  The trial court concluded on the strength of those circumstances that both the respondents are liable to be convicted for murder, rape and unnatural offence, while A1 Sunil is additionally liable for kidnapping the child for murder. Accordingly the trial court convicted both the respondents and sentenced them as aforesaid.\n22.  Regarding the first circumstance that it was A1 Sunil who took the child from the care of PW8 Tara, prosecution has examined PW8 Tara and her neighbour PW12 - Dariba besides the evidence of PW10 Sharda. PW8 Tara said that she knew both the accused since they used to stay in the house of Sharda for some days earlier. According to PW8 Tara, the child and her mother had stayed in her Jhuggi for a few days and on the date of occurrence A1 Sunil visited the Jhuggi at 11 A.M. and requested her to let the child Anuradha be taken with him along with some utensils and clothes.\n23.  The suggestion was that he had to take the child to the factory where Sharda was working. It appears that PW8 Tara was reluctant to allow him to take the child presumably because she did not know whether Sharda herself wanted the child then. But during the short interval when she went out of the house for purchasing milk A1 Sunil had taken away the child. As she did not know where Sharda was working and as the child was taken away by A1 Sunil who was familiar to Sharda no immediate step was taken by PW8 Tara and she chose to wait till Sharda returned.\n24.  The above evidence of PW8 Tara is to be appreciated in the light of what PW10 Sharda herself had said. PW10 deposed that she was quite familiar with A1 Sunil and she and the child had stayed at Sunils house for a few days sometime back. PW10 has stated that on the date of occurrence when she returned to Taras house she was told that Sunil had taken the child away by saying that PW10 would take the child back in the evening. She further deposed that she went to A1s house at 9.30 P.M. along with PW8 Tara and PW12 Dariba and collected the child from that house and the child was then lying next to A2 Ramesh who too was then sleeping. As the child was found breathless and in view of the comment blurted out by A1 Sunil, she rushed the child to the hospital.\n25.  The Division Bench of the High Court expressed difficulty to believe the said version of the prosecution i.e. A1 Sunil had taken away the child from the Jhuggi of PW8 Tara. The reasons of the High Court for it are:\n(1) There was no need for A1 Sunil to take the clothes and utensils even if he wanted to take the child to its mother Sharda.\n(2) There is nothing to indicate that PW10 Sharda made any enquiry about the clothes and utensils.\n(3) PW8 Tara could not explain as to what she understood when A1 Sunil wanted to take away the child with him.\n(4) Nobody from the neighbourhood of Tara was examined to corroborate her evidence.\n(5) The testimony of PW8 Tara was contradictory with the evidence of PW10 Sharda.\n26.  We perused the evidence of PW8-Tara, PW10-Sharda and their neighbour PW12-Dariba. True, there are discrepancies between the evidence of those three witnesses, but we have not come across any discrepancy worth quoting for consideration as they are immaterial. Such discrepancies are common features in the testimony of any two witnesses.\n27. It was too much of a strain for the judicial mind to ferret out some minor discrepancies as between the testimony of those three witnesses. Even the other reasons advanced by the Division Bench of the High Court are ex facie puerile and evidence given on oath by the bereaved mother PW10-Sharda and her other associate PW8-Tara, cannot be jettisoned on such insignificant reasons. In our view the High Court ought not to have sidelined the evidence of those three witnesses.\n28.  The circumstance relating to the recovery of the bloodstained nicker is a formidable one. But the Division Bench did not attach any importance to it solely on the ground that the seizure memo was not attested by any independent witness. Here the circumstance is that when A2- Ramesh was interrogated by PW17-Investigating Officer he said: Her underwear is in my house and I can point out the place where it is. Pursuant to the said information the police recovered the nicker from the house of A2-Ramesh.\n29. It was identified by PW10-Sharda as her childs nicker. When the nicker was subjected to chemical test it was revealed that the under-cloth of the child was stained with blood of O group (same is the blood group of Anuradha). The said statement of A2-Ramesh would fall within the purview of Section 27 of the Evidence Act as the fact discovered was that the nicker of the deceased was in the house of A2- Ramesh. The presumption which can be drawn therefrom is that it was A2 who removed the nicker and kept it in his house. A2 had no explanation to be offered about that circumstance.\n30.  Recovery of the nicker is evidenced by the seizure memo Ext.PW-10/G. It was signed by PW10-Sharda besides its author PW17-Investigating Officer. The Division Bench of the High Court declined to place any weight on the said circumstance purely on the ground that no other independent witness had signed the memo but it was signed only by highly interested persons. The observation of the Division Bench in that regard is extracted below:\n31.  It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the Investigating Officer to take independent witnesses to the discovery under Section 27 of the Indian Evidence Act; and without taking independent witnesses and taking highly interested persons and the police officers as the witnesses to the discovery would render the discovery, at least, not free from doubt.\n32.  In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses.\n33.  It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter.\n34.  The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code.\n35.  This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC 1225 1983 Indlaw SC 130). Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.\n36.  Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery.\n37. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.\n38.  We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police.\n39. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable.\n40. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.\n41.  In this case, the mere absence of independent witness when PW17 recorded the statement of A2-Ramesh and the nicker was recovered pursuant to the said statement, is not a sufficient ground to discard the evidence under Section 27 of the Evidence Act.\n42.  Thus on consideration of the entire evidence in this case we have no doubt that the trial court had come to the correct conclusion that the two respondents were the rapists who subjected Anuradha to such savagery ravishment. The Division Bench of the High Court has grossly erred in interfering with such a correct conclusion made by the trial court as the reasons adopted by the High Court for such interference are very tenuous. Nonetheless it is difficult to enter upon a finding that the respondents are equally guilty of murder of Anuradha.\n43. In the opinion of PW1 doctor the child died due to intracranial damage consequent upon surface force impact to the head. The said opinion was made with reference to the subdural haemotoma which resulted in subarachnoid haemorrage. Such a consequence happened during the course of the violent ravishment committed by either both or by one of the rapists without possibly having any intention or even knowledge that their action would produce any such injury. Even so, the rapists cannot disclaim knowledge that the acts done by them on a little infant of such a tender age were likely to cause its death. Hence they cannot escape conviction from the offence of culpable homicide not amounting to murder.\n44.  In the result, we set aside the impugned judgment of the High Court. We restore the conviction passed by the trial court under Section 376 and 377 read with Section 34 of the IPC. The trial court awarded the maximum sentence to the respondents under the said counts i.e. imprisonment for life. The fact situation in this case does not justify any reduction of that sentence. We also convict the respondents under Section 304 Part II, read with Section 34 of the IPC though it is unnecessary to award any sentence thereunder in view of the sentence of imprisonment for life awarded to the respondents under the other two counts.\nThis appeal is disposed of accordingly.\nAppeal Disposed of\n"}
+{"id": "qWCA79ISjs", "title": "", "text": "State Of U.P. v Anil Singh\nSupreme Court of India\n\n26 August 1988\nCriminal Appeal No.671-672 of 1980.\nThe Judgment was delivered by : K. J. Shetty, J.\n1.  The State of U.P. and the informant have preferred these appeals with special leave, challenging the order of acquittal recorded by the Allahabad High Court in Criminal Appeal No. 2340 of 1978. Anil Singh, the common respondent in the appeals was tried for the murder of Keshav Kumar ('K-K') by the Court of Session (Non- Metropolitan area), Kanpur. He was convicted and sentenced to imprisonment for life. But on appeal, he was acquitted by the High Court.\n2.  The prosecution story of the occurrence may be stated at some length.\nThe respondent-accused and KK were almost of equal age.\n3.  They are friends as well as class mates. They were also coaccused in some minor criminal cases. The accused was of violent temperament. He used to indulge in criminal activities. His father sent him to his maternal grandfather's house at Faizabad for being better taken care of. But he used to visit often his native place i.e. Pukhrayan, where KK was residing. The accused was in the habit of demanding money from KK. At the time of Diwali festival of the year-1977, the accused asked KK to pay Rs.2,500. He wanted to purchase a revolver. It is alleged that he even threatened KK that he would be killed if the amount was not paid by November 14, 1977. November 14, is a rejoicing day for children. It is a birth day anniversary of Pt. Jawahar Lal Nehru who was the first Prime Minister of this Country. The children all over called him and still remember him as \"Cha Cha Nehru\". Every year his birth day is celebrated as \"Children Day\" throughout the country. On that 14 November 1977, local Jaycees Club arranged Bal-mela and cultural programme. It was arranged in the Normal School compound 'with sweet-meet and chat-shops. Bal-Mela went on till 7 p.m. The cultural programme was to commence at 8 p.m.\nIn between KK was murdered.\nIt is said that the accused and KK came to Bal-Mela.\n4.  From there the accused went along with KK to a nearby place, that is the varandah of Dr. Diwedi's shop. There he assaulted KK with knife. Prahlad Kumar who is the eldest brother of KK and some others rushed to the spot. But the accused could not be caught. Nor KK could be saved. The accused was chased but he ran away by brandishing his knife.\n5.  The fatally injured KK was seen walking a few steps and falling down in a 'Nali'. Prahlad Kumar lifted him and carried up to some distance for medical attention. But on the way near Khazanchi hotel, KK succumbed to in juries. Prahlad Kumar carried the dead body of his brother to his house. So many people followed him. The Sub-Divisional Magistrate and Tehsildar who were the guests of honour at the function also went to his house. Ramesh Chander Dube a social worker and politician was very much there. Prahlad Kumar wrote a report giving fairly all particulars of the occurrence. He took a scooter and went to Police Station Bhoginpur which is just two miles away from his house. Ramesh Chander Dube accompanied him. They lodged the report at 9.15 p.m. at the Police Station.\n6.  Kaushal Chand Tripathi Sub-Inspector was then incharge of the Police Station. He was present when the report was lodged. He got the case registered. He immediately went to the scene of occurrence. He also visited the house of the deceased. He found the dead body lying on a bench. He conducted the inquest proceedings. Ex. Ka. 1 is the inquest report. He sent the dead body with Constables Aley Hasan and Trijugi Narain for post-mortem. Thereafter he recorded statements of persons. He examined witnesses including Chottey Lal (PW 2). In the course of interrogation of persons, he came across a boy called Raju. He took his statement who has been later examined as PW 3 in the case.\n7.  On the following morning at 5.45 a.m., the Investigating Officer again went to the scene of occurrence. He prepared a sketch map Ex. ka. 13. He found blood stains on the furniture lying in the varandah of Dr. Diwedi's shop. He got removed two pieces of a bench (Ex. 3 & 4) and one piece of table (Ex. 5) which were stained with blood. A memo Ex. Ka. 15 was prepared in respect thereof. Similarly, he collected blood stained and unstained earth from the Nali (Ex. 6 & 7). A memo Ex. Ka. 16 was also prepared in evidence thereof. He also collected blood stained earth from the Patti under the Memo Ex. Ka. 14.\n8.  The Investigating Officer then directed his officers to search and arrest the accused. But accused was not traceable in the town. The proceedings were initiated under s. 82/83 Criminal Procedure Code. On 17 November 1977, he obtained warrant of arrest (Ex. Ka. 17). The Sub-Inspector Sital Prasad was deputed to execute the warrant. On 21 November 1977 proclamation and warrant of attachment (Ex. Ka. 18 & Ka. 19) were obtained and executed properly. The property of accused was attached under Memo Ex. Ka. 20. It was only thereafter the accused appeared in the Police Station Kotwali. On 26 November 1977 he was arrested at Kotwali. Before the trial court, the prosecution in support of the case examined Prahlad Kumar (PW 1), Chhotey Lal (PW 2) and Raju (PW 3) as eye-witnesses to the occurrence. Rest of the evidence of prosecution is more or less formal. On the other side, Ramesh Chander Dube (DW 1), Karan Singh (DW 2), Balak Das (DW 3) and Shri Prasad (DW 4) were examined as defence witnesses.\n9.  The trial Court upon consideration of all the material on record accepted the case made out by the prosecution. The trial Court convicted the accused for the murder of KK and sentenced him to imprisonment for life.\n10.  The High Court of Allahabad set aside the conviction and sentence, and acquitted the accused. The High Court first surveyed some broad aspects of the case and reached the conclusion that the relations between the family of accused and KK were strained. The High Court then considered the evidence of eye-witnesses and disbelieved them by attaching one or the other doubt against their credibility. Prahlad Kumar (PW 1) was disbelieved on the grounds: He did not disclose the name of person who first informed him about the assault on KK. He did not disclose the name of accused to the Sub-Divisional Magistrate and Tehsildar when they came to his house. He did not ask them to call the Police and get the accused arrested. The High Court observed:\n\"Sub-Divisional Magistrate is incharge of a Sub-Division and has to maintain law and order. The Police ordinarily acts under his directions. In these circumstances had Prahlad Kumar seen the occurrence and the assailant he should have immediately made a complaint to the Sub- Divisional Magistrate who came up soon after the occurrence \"\n11.  The silence of Prahlad Kumar in this respect is clearly indicative of the fact that he had neither seen any part of the occurrence nor he had seen the assailant. Chhotey Lal (PW 2) was characterised as a chance witness. His presence at the place of occurrence was doubted with the following observations:\n\"Another fact which is conspicuous in his statement is that he and his 2 companions left the market at the time of sun set for their village. In the middle of November the time of setting in of the sun is about 5.30 p.m. There is dusk for about 45 minutes. Thus it appears that these three persons left the market if not at about 5.30 p.m., then alteast at about 5. 15 p.m. They could easily cover distance of 2 miles in an hour's time.\nTherefore, by 7.15 p.m. they could have easily reached their village. In this circumstance it does not stand to reason that they left the market at 7.30 or 7.45 p.m. From this aspect of the matter the version given by Chhotey Lal about his presence at the time of occurrence is not fee from doubt.\"\n12.  The testimony of Raju (PW 3) was rejected by stating that he was a child witness. that he did not figure in the FIR as an eye-witness, and his explanation for his presence at the spot was not reasonable. The High Court said:\n\"He has stated that his elder brother had told him to come up early and that on account of fear of being beaten by his brother he left the chabutara and proceeded towards his house. It will be noticed that he had left the Mela area with his Thela at about 7.30 p.m. It is thereafter that he again returned to the Mela area he took 10-15 minutes in shifting the chairs from the place of his shop to the dais of the drama. It is evident that just 15 minutes later he left the Mela area. Assuming for a moment that his brother had told him to come early it did not mean that he would return to the house within less than half an hour. Moreover, he did not tell the Investigating Officer that he left the Mela so soon on account of fear of his brother. We are, therefore, of the opinion that Raju has not given a reasonable explanation of his leaving the Mela area within about 15 minutes of his keeping the chairs near the place of drama. Therefore, his presence at the time of assault cannot be believed.\"\n13.  With these and other conclusions, the High Court discarded the prosecution case.\nHence these appeals.\n14.  The scope of appeals under Article 136 of the Constitution is undisputedly very much limited. This Court does not exercise its over-riding powers under Article 136 to reweigh the evidence. The Court does not disturb the concurrent finding of facts reached upon proper appreciation. Even if two views are reasonably possible, one indicating conviction and other acquittal, this Court will not interfere with the order of acquittal, [See:(i) State of U.P. v. Yashoda Nandan Gupta, AIR 1974 SC 753 1974 Indlaw SC 435 and (ii) State of A.P. v. P. Anjaneyulu, AIR 1982 SC 1598 1982 Indlaw SC 11] But this Court will not hesitate to interfere if the acquittal is perverse in the sense that no reasonable person would have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust.\n15.  On late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 C.W.N. 626 PC, the Privy Council had this to say (at 628):\n\"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.\"\n16.  In Abdul Gani v. State of Madya Pradesh AIR 1954 SC 31 1952 Indlaw SC 105 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.\n17.  It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.\n18.  In the instant case, the trial judge and the High Court have accepted the fact that the report to Police was lodged by Prahlad Kumar (PW 1) at 9.15 p.m. That means that the report disclosing the name of accused did reach the Police Station immediately after the murder. This is a positive finding in favour of prosecution. The report contains all particulars including the motive for the crime and the manner in which it was committed. It gives us the names of eye-witnesses as well. It also gives a clear picture as to what KK did after the attack and how the accused made good his escape.\n19.  It was argued by Shri Frank Anthony, learned senior counsel for the accused that it would be impossible for any person to prepare such an exhaustive report and lodge the same before the Police so soon after the occurrence.\n20. According to counsel, the report must have been prepared after the inquest and non-mentioning of the time of despatch of FIR to the Court would lend support to his submission. We carefully examined the material on record. We are unable to accept the submission of learned counsel. In the first place, PW 1 was not specifically cross examined on this matter. The Court cannot therefore, presume something adverse to the witness unless his attention is specifically drawn to. Secondly, the records contain unimpeachable evidence to the contrary. Apart from the records of the Police Station, the Panchayatnama (Ex. Ka. 7) to which Ramesh Chandra Duty(DW 1) has admittedly appended his signature shows that the reporting time of the crime was 9.15 p.m. DW 1 accompanied Prahlad Kumar to Police Station to lodge the report though he later defected to the defence.\n21.  He is a political figure and social worker. Highly qualified too. He would not have signed the Panchayatnama if the statement therein were not true and correct.\n22.  Equally there cannot be any dispute about the place of commission of crime. It was committed in front of Dr. Diwedi's shop. Portions of the blood stained furniture have been collected from the place (Ex. Ka. 15 & 14). It has been proved by the evidence of the Investigating Officer (PW 7).\nHis evidence remains unchallenged.\n23.  If we critically examine the evidence of PW 1 there is nothing to doubt the correctness of the version given by him. He was one of the persons who organised the programme. His presence at the place was therefore quite natural. He has testified to the presence of KK going with the accused at the Bal Mela. It is an evidence of the last seen together. It is an important piece of evidence. PW 1 could not be disbelieved on the gound that he did not mention the name of accused to Sub-Divisional Magistrate and Tehsildar. Nor his evidence could be doubted on the ground that he did not seek the assistance of the said officers to secure the police help.\n24.  It is unthinkable that the Sub-Divisional Magistrate and Tehsildar were not kept informed about the assailant. The crime was committed at a public place crowed by persons.\nThey had assembled there to witness the cultural programme.\n25.  The Sub-Divisional Magistrate cancelled the cultural programme because of commission of the crime. The people would have naturally asked why the programme was cancelled? Who murdered whom and why? It is a natural human tendency in such situations. The news of the murder must have spread like a wild fire. The name of accused must have been known to everybody gathered there. It is unfortunate that the High Court overlooked these circumstances.\n26.  The other reason given by the High Court to discard the evidence of PW 1 is that he did not disclose the name of person who first informed him about the murderous attack on KK. This reasoning of the High Court apparently reveals a lack of experience of man and matters. There was a big gathering at the Normal School Compound. The people were waiting to see the cultural programme. It was to commence at 8.00 PM. The time was hearing. PW 1 was at the stage as be was one of the organisers. He was then informed that his brother KK was being assaulted by the accused. The first impulse of PW 1 must have been to rush to the scene of occurrence and not to remember the name or identity of person who informed him. The place of occurrence was hardly about 25 paces from the stage set for cultural programme. PW 1 must have rushed to the place in a minute. There must have been some altercation between the accused and KK. It could have taken some time. PW 1 must have reached within that time. The medical evidence supports this version. There are as many as eight incised wounds on KK. The doctor has stated that KK could have survived 10-15 minutes after the assault and moved 15-2 paces. PW I has stated that KK went towards Nali and fell down. He along with Dhruv lifted KK from the Nali and carried him towards the clinic of Dr.Mishra. Even the defence witness Ramesh Chander has admitted that PW 1, Dhruv and others were present at the Nali where KK was lying injured. It is, therefore, quite unreasonable to hold that PW 1 could not have seen the assault on KK.\n27.  It was, however, urged that there was no light in front of the shop of Dr. Diwedi and PW 1 or other witnesses could not have identified the accused. Shiv Prasad Mishra (DW 4) has been produced to testify that the street mercury light was not burning on that day. We may accept the evidence of DW 4, but we cannot accept that there was no lighting arrangement at the public function. The Sub-Divisional Magistrate and Tehsildar were present at the function. Bal Mela commencing at 7.00 PM and cultural programme at 8.00 PM could not have been arranged in darkness. The prosecution witnesss have stated that apart from the lighting arrangement at the function, there was an electric light in front of the shop of Dr. Diwedi. It is also on record that there was another light near the Khazanchi hotel. Quite natural the area must have been well-lit for the function.\n28.  That apart, the accused was not a stranger to the place. He was at any rate familiar to PW 1'and his family members. There was, therefore, no scope for any mistaken identity of the accused.\n29.  The reason given by the High Court for disbelieving the evidence of Chhotey Lal PW 2 is fanciful. PW 2 is a resident of the village Astiya. The village is at a distance of two miles from Pukhrayan town. It will be seen from his evidence that he along with Baijnath and Manuwa maharaj-all residents of the same village had gone to the town for their requirements. PW 2 wanted iron nails, Manuwa required vegetables and Baijnath had to purchase iron rods. After purchasing the respective goods, they proceeded toward their village. When they reached the tehsil, they came across 3- 4-5 boys who told them that there was Bal Mela and cultural programme in the Normal School. It was natural for them to stay on to see the cultural programme. They came to their grain dealer. They kept their articles at his place and after some time they started towards the Normal School at about 7.30 or 7.45 PM. When they were approaching the Khazanchi hotel, they saw the accused assaulting KK. The evidence of PW 2 receives corroboration from PW 1. He figures as an eye-witness in the FIR. He cannot, therefore be categoried as a chance witness.\n30.  The accused tried to give negative evidence to show that the market in Pukhrayan town to every Monday was closed and, therefore, the presence of PW 2 was not probable. PW 2 has admitted that the market used to remain 'closed on every Monday, but the general merchandise and hardware shops are not closed. In our opinion, there is no reason to disbelieve the statement of PW 1.\n31.  The third eye-witness in this case is Raju PW 3. It seems to us that he is an important witness. He had the courage to come forward to depose in favour of prosecution in spite of his father going as a defence witness. The trial court upon preliminary examination has opined that he is an intelligent boy and able to give rational answers to questions put to him. He was then a student of class IV in the Normal School. His father opened a chat-shop at the Bal Mela. PW 3 was in that shop. There is no disput on this fact.\n32. According to him, after Bal Mela he arranged the chairs of his shop in front of the stage set for cultural programme. He met some of his friends and sat at the chabutara by the side of the stage. While leaving to his house, he saw a crowd by the side of Khazanchi hotel and stopped there to find out what was happening. It is quite natural for boys to peep into the crowd. He has deposed that he saw the accused hitting KK with knife, but out of fear he ran from that place. His house is situated at a distance of about 100 yards from the Mela ground. To cover that distance one cannot take much time. Nor it is necessary to give any sufficient cause for his presence at the place. One should bring to bear the knowledge and experience of life. Since he was a student of the Normal School, his presence at the place was natural. His name might not have been mentioned in the FIR, but that is understandable. PW 1 might not have remembered him or noticed him. He was in a hurry to rush to the spot to save his brother.\n33.  The Investigation Officer has deposed that when he started interogating witnesses at the spot, he came across Raju who said that he had seen the incident. His statement was immediately recorded. In the Court, Raju has been cross examined at the great length. But nothing substantial has been elicited to shake his credibility. What is significant to note in this context is the attempt of th father (DW3) to destroy the credibility of the son. His father as a defence witness has stated that after the Mela they had returned to house at about 6.30PM and thereafter they did not go out of the house for the Whole night. The trial court after carefully examining the testimony of DW 3 observed that he is absolutely unreliable. It has held that the testimony of DW 3 that he alongwith his son remained in the house after 6.30 PM and slept at about 8.30 PM is unworthy of belief since their house is admittedly at a close distance from the Normal School Compound. This observation of the trial court is not unjustified.\n34.  The post crime conduct of the accused cannot also be lost sight of. The plea of alibi has not been pursued. It has been proved that the accused was not available in the town after the occurrence till 34 November 1977. It is on record that the accused could not be traced and proceedings under sec. 82/83 Cr. Penal Code were initiated.\n35.  The warrant of arrest issued against the accused returned unserved. There-after proclamation was made and his property was attached. That was on 23 November 1977. He appeared on the next day in the Police Station Kotwali. That has been proved by the general diary entry (Ex.Ka. 22) of the said Police Station.\n36.  It may be noted that the investigation in this case was conducted without loss of time. Since the murder was committed at a public place where the Sub-Divisional magistrate and Tehsildar were present, the Investigating Officer must have been keen to arrest the accused immediately. That was perhaps the reason why he took proceedings under sec. 82/83 Cr.P.C. We must really appreciate the proper and prompt investigation made in this case.\n37.  We have given our anxious consideration to all material facts and circumstances of the case. It seems to us, that the decision of the High Court cannot be supported.\n38.  In the result, we allow these appeals, set aside judgment of the High Court and rstore that of the trial court. The conviction and sentence awarded aginst the accused are restored. He shall undergo the remaining part of sentence.\nAppeals allowed\n"}
+{"id": "JHS64k2k59", "title": "", "text": "Mohd. Iqbal Ahmed v State of Andhra Pradesh\nSupreme Court of India\n\n18 January 1979\nCriminal Appeal No. 194 of 1973 (Appeal by Special Leave from the Judgment and Order dated 3-4-1973 of the Andhra Pradesh High Court in Criminal Appeal No. 703/71)\nThe Judgment was delivered by : Syed Murtaza Fazalali, J.\n1.  In this appeal by special leave the appellant has been convicted under section 161 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year and a fine of Rs. 250/- on each count.\n2.  The appellant had been convicted by Special Judge but on appeal by the State to the High Court the High Court reversed the judgment of acquittal and convicted the appellant as indicated above. According to the prosecution the appellant is said to have struck a bargain for taking a bribe of Rs. 125/- which he received on the 15th of July, 1968 in the presence of P.Ws. 1 and 3. On receiving the signal the raiding party appeared on the scene and the hand of the accused was dipped in water containing phenopthelien solution which showed that he touched the notes. The defence of the appellant was that he never demanded any bribe and that the notes were thrust into his pocket. It is not necessary for us to dwell on the merits of the case because, in our opinion, the appeal must succeed on a short point of law, raised by Mr. A. N. Mulla, learned counsel for the appellant. It was argued that the sanction under section 6 of the Prevention of Corruption Act produced in this case does not reveal the facts constituting the offence and, therefore, there is no evidence to show on what materials the sanctioning authority applied its mind and granted the sanction. The Resolution of the Standing Committee granting the sanction is Exh. P-16 and is dated 31-3-1969, and runs as follows:\n\"As per note of the Commissioner, M.C.H. the Standing Committee unanimously accords sanction for prosecution of Sri Mohd. Iqbal Ahmed (in the scale of 110-180) Section Officer of Town Planning Section (Under suspensions) in a competent Court for the offence mentioned in the note of the Commissioner M.C.H., dated 18-1-1969 so as to enable the Commissioner to sign the prosecution order and send it to the Director, Anti-Corruption Bureau for taking further action at the earliest\".\n3.  A perusal of the Resolution of the Sanctioning Authority clearly shows that no facts on the basis of which the prosecution was to be sanctioned against the appellant are mentioned in the sanction nor does this document contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied. This document merely mentions that the sanction has been given on the basis of a note of the Commissioner, Municipal Corporation which appears to have been placed before the Committee. It is obvious, therefore, that this note, if any, must have come into existence either on 31-3-1969 or at any date prior to this. The prosecution could have proved the facts constituting the offence which were placed before the Sanctioning Authority by producing the note at the trial. But no such thing has been done. What the prosecution did was merely to examine two witnesses P.Ws. 2 and 7. P.W. 2 has produced the order implementing the Resolution of the Sanctioning Authority which is Exhibit P- 10 and is dated 21st April, 1969, that is to say after the sanction was given. This document no doubt contains the facts constituting the offence but that does not solve the legal issues that arise in this case. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P-16 which was placed before the Sanctioning Authority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P.W. 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.\n4.  It was next contended by Mr. Rao that in view of the presumption which is to be drawn under section 4 of the Prevention of Corruption Act, even if, no facts are mentioned in the Resolution of the Sanctioning Authority it must be presumed that the Sanctioning Authority was satisfied that the prosecution against the appellant should be launched on the basis of the presumption that the accused had received a bribe. With due respects to the learned counsel, this argument seems to be wholly mis-conceived. In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court.\n5. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. So far as the question of sanction is concerned this arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage. Lastly, it was submitted by Mr. Rao that he should be given a chance to produce the materials before the Court to satisfy that the Sanctioning Authority had duly applied its mind to the facts constituting the offence. We are, however, unable to accede to this prayer which has been made at a very late stage. The prosecution had been afforded a full and complete opportunity at the trial stage to produce whatever material it liked and it had chosen to examine two witnesses but for reasons best known to it did not produce the note which formed the subject matter of the Resolution of the Sanctioning Authority-Exh. P-16. It is well settled that in a criminal case this Court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.\n6.  For these reasons, therefore, we are satisfied that the present prosecution was launched without any valid sanction and, therefore, the cognizance taken by the Special Judge was completely without jurisdiction. The appeal is accordingly allowed. The judgment of the High Court is set aside and convictions and sentences passed on the appellant are quashed. The appellant will now be discharged from his bail bonds.\nAppeal allowed.\n"}
+{"id": "pkObaWoukd", "title": "", "text": "State of Andhra Pradesh v Thadi Narayana\nSupreme Court of India\n\n24 July 1961\nCriminal Appeal No. 222 of 1959. Appeal by special leave from the judgment and order dated February 24, 1959, of the Andhra Pradesh High Court, Hyderabad, in Criminal Revision Case No. 636 of 1958. AND Criminal Appeal No. 112 of 1961. Appeal by special leave from the Judgment and order dated July 15, 1958, of the Andhra Pradesh High Court in Criminal Appeal No. 237 of 1957.\nThe Judgment was delivered by : P. B. Gajendragadkar, J.\n1.  The short and interesting question which arises for our decision in the present appeal is in respect of the powers of the High Court in disposing of appeals under s. 423(1) (b) of the Code of Criminal Procedure. In dealing with an appeal preferred by a convicted person against the order of conviction and sentence imposed on him by the trial court can the High Court in exercise of its appellate powers under s. 423(1)(b) reverse the finding of acquittal recorded by the trial court in favour of the appellant in respect of an offence which is directly not the subject-matter of the appeal ? On this question there has been a difference of opinion amongst our High Courts, and it appears from reported decisions that in the same High Court sometimes conflicting views have been expressed on the point.\n2.  This question arises in this way. In the Court of Sessions, Visakhapatnam Division, the respondent Thadi Narayana was charged at the instance of the appellant the State of Andhra Pradesh with having committed offences punishable under s. 302 and s. 392 of the Indian Penal Code. The case against her was that on December 27, 1956 at about night meal-time at Gangacholapenta she, committed the murder of a minor girl K. Sriramulamma by stabbing her with a knife and thus rendered herself 'liable to be punished under s. 302. It was also alleged against her that at the aforesaid time and place and in the course of the same transaction she had robbed the said victim of her four pairs of gold Konakammulu and. a pair of gold Alakalu and thereby committed 'the offence of robbery under s. 392. On April 16, 1957 the learned trial judge found that the charges against the respondent under ss. 302 and 392 had not been proved beyond a reasonable doubt, and so he acquitted her of the said offences. He, however, held that the respondent was shown to have committed an offence under s. 411 and so he convicted her of the said offence and sentenced her to undergo rigorous imprisonment for a period of two years.\n3.  Against the order of conviction and sentence thus imposed on her the respondent preferred a jail appeal in the High Court of Andhra Pradesh. This appeal was heard by Sanjeeva Rao Naidu, J. By his judgment delivered on July 22, 1958 the learned judge expressed his conclusion that he, was satisfied that gross miscarriage of justice had resulted in the case \"and the only way to rectify this is to order the retrial of the case on the original charges under ss. 302 and 392 of the Indian Penal Code so that the accused may be properly tried thereon and, if found guilty, convicted for the offence or proved by evidence to have been committed by her.\" In the result the conviction and sentence of the accused under s. 411 was set aside and the case was remanded to the trial court for retrial on the charges already framed against her.\n4.  Accordingly when her retrial commenced on November 3, 1958 an application was made on behalf of the respondent before the trial judge (Criminal M. P. No. 242 of 1958) in which it was urged that her trial in respect of the offences under ss.302 and 392 was not permissible having regard to the order of acquittal which had been passed in her favour at the original trial. The validity of the plea ofautrefois acquit thus raised by the respondent was challenged by the appellant, and it was 'urged that by virtue of the order passed by the High Court ordering her retrial the trial court in law was bound to proceed with the retrial. The trial judge upheld this contention and observed that he was bound to obey the directions given by the High Court and if he were to examine the merits of the contention raised before him by the respondent he would be transgressing his limits, because the determination of the point raised by the respondent would necessarily involve examining the correctness or otherwise of the High Court's order directing a retrial. The trial court thus rejected the application made by the respondent.\n5.  Against this order the respondent moved the High Court by her Criminal Revision Application No. 636 of 1958. The Criminal Revision Application, as placed before a Full Bench because it raised two important questions of law. These questions were thus framed:\n(1)Where an accused is tried by a Sessions Court on charges of murder and robbery, and the Sessions Court acquits the accused of those charges and convicts her only of an offence u/s. 411 I. P. C. and the accused appeals to the High Court against the conviction and sentence but the State Government does not appeal against the acquittal of the accused on charges of murder. And robbery, is it open to the High Court to set aside the conviction and sentence u/s. 411 I. P. C. and order the accused to be retried on the charges of murder and robbery ?\n(2)When in pursuance of the order of the High Court the Sessions Court again frames charges u/ss. 302 and 392 I. P. C. against the accused, is it or is it not open to the accused to plead the statutory bar of AUTREFOIS ACQUIT' u/s. 403 Cr. P.C.?\n6.  The answer given by the Full Bench to the first, question is that except in exercise of the revisional powers under s. 439 of the Code of Criminal Procedure subject to the limitations prescribed therein it is not open to the High Court to order a retrial on the charges on which the accused was acquitted by the trial court in an appeal by the accused against his conviction, though 'it is empowered to reverse the conviction and order a retrial on that charge alone. On the second question the Full Bench held that it was open to the accused to plead the bar of autrefois acquit under s. 403 notwithstanding the order of the High Court unless there is an adjudication on the acquittal by the High Court either under s. 423(1) (a) or S. 439 of the Code of Criminal Procedure. As a result of these answers the revisional application preferred by the respondent was allowed, her plea under s.403 was upheld and it was ordered that the retrial of the respondent for the offences under ss.302 and 392 of the Indian Penal Code cannot be proceeded with., This order was passed on March 11, 1959. It is against this order that the appellant has come to this Court by special leave.\n7.  The powers of the appellate court in disposing of appeals are prescribed by s. 423 of the Code. This section occurs in Chapter XXXI of the Code which deals with appeals, reference and revision. In the present appeal we ire concerned with the provisions of s.423(1) (b). However, it is convenient to read s. 423(1) (a) and (b) 423.(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411A, subjection (2) or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground. for interfering, dismiss the appeal, or may-\n(a)in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made,, or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law;\n(b)in an appeal from conviction, (1) reverse the finding and sentence, and acquit or discharge the accused or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduced the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3),. not so as to enhance the same;\n8. S. 423(1) (a) expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to. reverse the order of acquittal and direct that further inquiry be made or that the accused may be tried or committed for trial, as the case may be, or it may find him guilty and pass sentence on him according to law. In appreciating the powers conferred on the Appellate Court in dealing with an appeal against, an order of acquittal it is necessary to bear in mind that the only forum where an appeal can be preferred against an original or an appellate order of 'acquittal is the High Court, that is to say the powers conferred on the Appellate Court by s.423(1) (a) can be exercised only by the High Court and not by Any other Appellate Court. Under s. 408 the Court of Sessions is an Appellate Court to which appeals from orders of conviction passed by an Assistant Sessions Judge,, a District Magistrate or any other Magistrate lie, and so the Court of Sessions is An Appellate- Court, but no appeal against an order of acquittal passed by any of the aforesaid authorities can lie to, the Court of Sessions. All appeals against acquittal whether passed by the trial court or the Appellate Court lie only to the High Court, and so the powers prescribed by s. 423(1) (a) can be exercised only by the High Court. As we will presently point out this fact has some bearing on the construction of the material words used in s. 423(1) (b) (2).\n9. S. 423(1) (b) (1) in terms deals with an appeal from a conviction, and it empowers the Appellate Court to reverse the findings and sentence and acquit or discharge the accused or order a retrial by a Court of competent jurisdiction subordinate to such Appellate. Court or committed for trial. In the context it is obvious that the finding must mean the finding of guilt. The words \"the finding and sentence\" are co-related. They indicate that the finding in question is the cause and the sentence is the consequence; and so what the Appellate Court is empowered to reverse is the finding of guilt and consequently the order as to sentence. There is no.difficulty in holding that s. 423(1) (b) (1) postulates the presence of an order, of sentence against the accused and it is in that context that it empowers the Appellate Court to reverse, the finding of guilt and sentence and then to pass any one of the appropriate orders: therein specified. In our opinion s. 423 (1) (b) (1) is, therefore, clearly confined to cases of appeals preferred against orders of conviction and sentence, and the powers exercisable under it are therefore condition- ed by the said consideration. It is impossible to accede to the argument that the powers conferred by this clause can be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged in dealing with an appeal preferred-by him against the order of conviction in respect of another offence charged and found proved. There can thus. be no doubt that the order passed by Naidu, J. cannot be justified under this clause.\n10.  At this stage it would be relevant to point out that Naidu, J. did not purport to proceed under s.439 in dealing with the respondent's' case when the appeal preferred by her against her conviction was being argued before him. It is true that the learned judge noticed that the appeal in question was a jail appeal and the, respondent was not defended by a lawyer. So he ordered Mr. A. Gangadhara Rao, an Advocate of' the Court, to appear amicus curiae to argue the pea on behalf of the respondent; but, as the Full Bench has pointed, out, the record clearly shows that neither the respondent nor her pleader was given notice under s' 439(2) of the Code, and even the advocate appointed amicus curiae did not know much less the respondent herself that the learned judge intended to exercise his powers under s.439 against the respondent in respect of the offences under ss.302 and 392 despite the fact that the appellant had not preferred an appeal against the order of acquittal passed in favour of the respondent on those grounds. Therefore, it is unnecessary for us to consider in this appeal the question about the scope and effect of the provisions of ss.423 and 439 of the Code read together. The only provision under which the order passed by Naidu J. is seriously sought to be supported is s.423 (1) (b) (2) and it is to that provision that we must now turn.\n11.  It is urged by Mr. Choudhury on behalf of the appellant that in construing the expression \"alter the finding\" it would be necessary to remember that when the High Court deals with an appeal against conviction the proceedings in the Appellate Court are in substance a continuation of the proceedings in the trial court and so the entire case is in that sense pending before the Appellate Court. The argument is that in exercising the powers conferred on it by s.423 (1)(b)(2) the High Court is not confined only to the order of conviction which is directly the subject-matter of the appeal but it is possessed of the entire proceedings of the case against, the accused and it is in the light of this fact that the expression \"alter the finding\" must be construed.\n12. In our opinion, this argument is not well founded. The scheme of s. 423 itself clearly shows that when appeals against conviction are brought before the Appellate Court by the convicted person it is only with the orders of conviction and matters incidental thereto that fall to be decided by the Appellate Court. An order of acquittal passed in favour of an accused person can be challenged by an appeal as provided by s.417 of the, Code, and s.423(1) (a) therefore expressly deals with the powers of the High Court in dealing with such appeals against orders of acquittals. Prima facie,if an order of acquittal is not challenged by an appeal as contemplated by s.417 and if no action is taken by the High Court under s.439 the said order of acquittal becomes final and cannot be impugned indirectly by the State in resisting an appeal filed by a convicted person against his conviction. In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court. If an appeal is preferred against an order of acquittal by the State and no appeal is filed by the convicted person. against his conviction it is only the order of acquittal which falls to be considered by the Appellate Court and not the order of conviction. Similarly, if an order of conviction is challenged by the convicted person but the order of acuittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal. Therefore the assumption that the whole case is before the High Court when it entertains an appeal against conviction is not well-founded and as such it cannot be pressed into service in construing the expression \"alter the finding\".\n13.  In this connection we ought to recall the fact that it is only the High Court which is authorised to entertain appeals against acquittal under s.417 of the Code. But the provisions of s.423 (1) (b) are applicable to all the Appellate Courts and so the meaning of the expression \"alter the finding\" cannot change according as the Appellate Court is the High Court or the Court of Sessions. It is common ground that the Court of Sessions which is an Appellate Court cannot alter the finding of acquittal in pursuance of the provisions of s.423 (1) (b) (2) but the argument is that the, High Court can. This argument puts two different interpretations on the same expression \"alter the finding\" and that would not be a proper mode to adopt in construing the clause. We are, therefore, inclined to bold that just as the Court of sessions is not entitled to alter the finding of acquittal in exercising its powers under s. 423 (1) (b) (2) so is the High Court not entitled to do it,. In other words, the expression \"alter the finding\" has only one meaning, and that is alter the finding of conviction and not the finding of acquittal.\n14.  Besides, if the expression \"alter the finding\" was to include the power to reverse the finding of acquittal it is not easy to realise why s. 423 (1) (a) should have been enacted at all. From the very fact that s. 423 (1) (a) deals independently with the topic of appeals from orders of acquittal, it would be reasonable to infer that the appellate power in respect of the orders of acquittal are dealt with separately and exclusively under s. 423 (1) (a), whereas appellate powers to deal with orders of conviction are dealt with separately and exclusively under s. 423 (1) (b). The scheme of s. 423, therefore, is inconsistent with the argument that cl. (2) of S.423 (1) (b) covers orders of acquittal and empowers the Appellate Court to alter the said orders.,\n15.  As a matter of construction the words \"\"the, finding\" in the expression \"alter the finding\" must mean the finding of conviction' because the clause begins with \"in an appeal from a conviction\" and it is obvious that read in the context of the opening words of the clause \"'the finding\" must mean the finding of conviction and no other. It is with an appeal from conviction that the'clause deals and it is the finding of conviction or guilt which it empowers the Appellate Court to alter. The word \"alter\" must in the context be distinguished from the word \"reversed\". Whereas, under s. 423(1)(b)(1) power is conferred on the High Court to reverse the order of conviction the power conferred on the Appellate Court by the expression \"'alter the finding\" is merely the power to alter. Reversal of the order implies its obliteration, whereas alteration would imply no more than modification and not its obliteration. This consideration also shows that what- the expression aims at is the finding of conviction or guilt and not the finding of acquittal or innocence.\n16.  There is yet another consideration which leads to the same conclusion. S. 423(1)(b)(2) emphatically refers to the sentence and requires that despite the alteration of the finding the sentence must be maintained. In other words, the finding and the sentence go together and the clause provides that, even if the finding is altered the sentence may be retained. Similarly, the sentence may be reduced with or without altering the finding. The reference to the sentence in both the cases indicates that the finding which can be altered under the clause is a finding which has led to the imposition of sentence on the accused person. This clause would naturally raise the question as to what are the kinds of cases in which the power can be exercised ? The answer to this question is furnished by the provisions of ss. 236, 237 and 238 Section. 236 deals with cases where separately enacted in order to empower the High Court in the interest of justice to examine the orders of acquittal and if it is satisfied that in any case, the order of acquittal needs to be revised the High Court can exercise its power suo motu. The legislature has therefore deliberately provided wide powers under s. 439 in the interest of justice, and so it is very unlikely that the' legislature could have intended to confer a similar power on the High Court under s. 423 (1) (b) (2).\n17.  In this connection we ought to deal with another argument which is sometimes dressed into service in support of the wider construction of the clause 'falter the finding\". It is said that the provisions of s. 439 apply-to cases where there is a complete and express order of acquittal, whereas a. 423 (1) (b) (2) covers cases of implied and partial acquittal. It is also urged that whereas there is a specific provision made in s. 439 (4) by which the High Court is precluded from converting a finding of acquittal into one of conviction there is no such limitation in s. 423. Both these arguments do not appear to us to be well- founded. In regard, to the argument of implied acquittal being open to review by the High Court under s.423 (1) (b) (2) it would be enough to refer to at decision of the Privy Council where this argument has been rejected. In Kishan Singh v. The King-Emperor ((1928) 55 I. A. 390) 1928 Indlaw PC 18 the appellant had been tried by a Sessions Judge under s. 302 on a charge of murder. He was convicted under S.304 of culpable homicide not amounting to murder. This conviction was recorded in the, light of the provisions of s.238 (2) of the Code,. For the offence under s.304 he was sentenced to five years' rigorous imprisonment. While convicting the appellant under s. 304 the trial court did not record a specific order of acquittal for the offence under s. 302. The State Government did not appeal but applied for revision on the ground that the appellant should have been convicted of murder and that the sentence was inadequate.\n18.  The High Court thereupon convicted the appellant of murder and sentenced him to death. This order of conviction and sentence was successfully challenged by the appellant before the Privy Council. The Privy Council held that the finding at the trial ought to be regarded as of acquittal on the charge of murder and that consequently s. 439 (4) of the Code precluded the High Court from having jurisdiction upon revision to convict on that charge. Dealing with the argument that s. 439 (4) should be confined only to cases where there is complete acquittal their Lordships thought it necessary to say that \",if the learned Judges of the High Court of Madras intended to 'hold that the prohibition in s. 439, sub s. (4) refers only to cases where the trial has ended in a complete acquittal of the accused in respect of all charges or offences, and not to a case such as the present, where the accused has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, their Lordships are unable to agree with that part of their decision. The words of the sub-section are clear and there can be no doubt as to their meaning. There is no justification for the qualification which the learned Judges attached to the sub- section.\" It would thus be clear that any attempt to confine the operation of s. 439 (4) to cases of the so-called complete acquittal cannot be entertained; and so it would be idle to suggest that s. 423 (1) (b) (2) covers cases of implied or partial acquittal a s. 439 deals with cases of express and complete acquittal.' In setting aside the order of conviction for the offence of murder imposed....by the High Court on the appellant the Privy Council observed that the High Court had acted without jurisdiction and so it could not accept the plea that no prejudice had thereby been caused to the appellant,. This case, therefore, clearly establishes Chat in exercising the powers conferred on it by s. 423 (1) (b) the High Court cannot convert acquittal into conviction that can be done only by adopting the procedure prescribed in s. 439 of the Code.\n19.  Then, as to the argument based on the specific, provision contained in s. 439(4) it is obvious that no such limitation could have been prescribed in regard to the provisions of s. 423 (1)(b) for the reason that the orders of acquittal are outside the purview of that clause. Therefore, it would be unreasonable to suggest that because there is no limitation on the power of the High Court as there is in s. 439(4) the High Court can, in dealing with an appeal against conviction, alter the finding of acuittal recorded at the Trial in favour of the accused person. We must accordingly bold that the Full Bench of the Andhra High Court was right in coming to the conclusion that Naidu, J. acted without jurisdiction in altering the finding and order of acquittal passed in favour of the respondent in respect of the offences under ss. 302 and 392 when he, was dealing with the appeal preferred by the respondent against her conviction under s. 41 1.\n20.  In this connection we way incidentally refer to the observations made by Venkatarama Ayyar, J., who spoke for the Court, in Jayaram Vithoba v. The State of Bombay. ((1955) 2 S C. R. 1049) 1955 Indlaw SC 74 In dealing with the contention of the accused that the Court had no power under s.423 (1) (b) of the Code of Criminal Procedure to award a sentence under s. 148 in a case the accused was charged under ss. 324 and 148 of the Indian Penal Code., the High Court had observed that they had ample power to transpose the sentence so long as the transposition does not amount to enhancement, and this observation raised a question about the construction of s. 423 (1)(b). Dealing with the said question, Venkatararia Ayyar, J. observed there is nothing about the transposition of the sentence under s. 423 (1)(b). It only provides for altering the finding and maintaining the sentence, and that can apply only to cases where the finding of guilt under one section is altered to a finding of guilt under another. The section makes a clear distinction between a reversal of a finding and its alteration\". These observations seem to take the same view of the scope and effect of the provisions of s. 423(1)(b) as we are inclined to do.\n21.  As we have already indicated at the commencement of this judgment;, on the question raised for our decision in the present appeal there has been conflict of judicial opinion. We do not, however, propose to consider the several decisions to which our attention was drawn because, in our opinion, no useful purpose would be served by examining the facts in all those cases and subjecting to scrutiny the reasons adopted for arriving at different conclusions. We would, therefore, content ourselves with the broad statement that respondent has relied upon the decisions in Indra Kumar Nath v. The State ( A. I. R. (1954) Cal. 375 1954 Indlaw CAL 168). The State v. Amlesh Chandra Ray. ( r. L.R. (1953)1 Cal.302), Fulo v. State ((1956) I. L.R. 35 Pat. 144) (Full Bench), and Taj Khan v. Rex (A. I. R. 1932 All. 369.) (Ful Bench 1951 Indlaw ALL 171), whereas the appellant has relied upon the decisions in Krishna Dhan Mandal v. Queen-Empress ((1895) I.L.R. 22 Cal. 377), Queen-Empress v. Jabanulla (1896 I.L.R. 23 Cal. 975),\n22.  In Re Illuru Lakshmaih, (A.I. R. 1952 Mad. 101) Golla Hanumappa v. Emperor, ((1912) I.L.R.35 Mad. 243) Re K. Bali Reddi, (1914 I. L. R. 37 Mad. 119) In Re Rangiah, (A. I. R, 1954 Mys. 122) 1953 Indlaw KAR 37 Baua Singh v. The Crown ((1942) I.L.R. 23 Lah. 129) (Full Bench) and the majority judgment in Emperor v. Zamir Qasim (I.L.R. (1944) All. 403) The minority view expressed by Mulla J. in Emperor v. Zamir Qasim(I.L.R. (1944) All. 403) contain a careful and exhaustive discussion of the topic and the respondent has strongly relied upon it.\n23.  There is one more point which still remains to be considered and that is the subject-matter of the second issue referred to the Full Bench. It is urged before us by Mr. Choudhury on behalf of the State that the Full Bench itself has acted in excess of jurisdiction in entertaining the plea. arised by the respondent under s. 403, because he contends that the judgment delivered by Naidu J. could not be revised by the High Court having regard to the provisions of s. 369 of the Code. We have already mentioned that this question has also been answered in favour of respondent by the Full Bench.\n24.  The judgment of the Full, Bench does not show that the effect of the provisions of s. 369 was argued before it. In substance, however, the Full Bench has held that the. order passed by Naidu J. is outside the authority conferred on the High Court under s. 423 (1)(b)(2) and as such can be treated to be without jurisdiction and therefor e a. nullity. We do not propose to decide this point in the present appeal, because we have, allowed\n25.  Mr. Rama Reddy, who appeared for the'respondent at our instance, to make an application for special leave against the order passed by Naidu J. Accordingly Mr. Rama Reddy has made an application, Special Leave Petition (Criminal) No. 476 of 1961, for special leave and has prayed-for excuse of delay made in filing it. Having regard to the very unusual circumstances in which the present application has been made we feel no difficulty in condoning the delay made by the respondent in filing her application for special leave and granting her special leave to appeal against the order in question. In fairness we ought to add that Mr. Choudhury did not resist the respondent's prayer for excuse of delay in the present case. Since we are now possessed of an appeal, Criminal Appeal No. 112 of 1961, filed by special leave against the judgment and order of Naidu J. the question as to whether the Full Bench could have considered the validity of the said judgment and order has become a matter of academic importance. There can be no doubt that in. the appeal preferred by the respondent against the said order it is certainly open to her to challenge its validity, and as we have come to the conclusion that the order passed by Naidu T. is without jurisdiction we have no difficulty in allowing the respondent's appeal and setting aside the, said order.\n26.  In the result Criminal Appeal No. 112 of 1961 preferred by the respondent Thadi Narayana'is allowed and the High\"Court's order passed in Criminal Appeal No. 237 of 1957 by which case against her had been sent back for retrial on the original charges against her under ss. 302 and 392 of the Indian Penal Code is set aside. The conse- quence of this decision is that the order of acquittal passed in her favour by the trial court ill respect of the said offences is restored. The State has not preferred any appeal against the High Court's decision in Criminal Appeal No. 237 of 1957 where by the conviction of Thadi Narayana in respect of the offence under s. 411 and sentence imposed on her in that behalf have been set aside while ordering her retrial for the major offences under ss. 302 and 392 of the Indian Penal Code ; and so this latter order of acquittal in respect of S. 411 will stand. In the circumstances of this case this result cannot, be avoided. Criminal Appeal No. 222 of 1959 preferred by the State against the decision of 'the Full Bench therefore fails and is dismissed.\nCriminal Appeal No. 11 2 of 1961 allowed.\nCriminal Appeal No. 222 of 1959 dismissed\n"}
+{"id": "CtlRJoWcUR", "title": "", "text": "Union of India and Others v Garware Nylons Limited and Others\nSupreme Court of India\n\n9 September 1996\nC.A. No. 715 of 1981 with C.A. No. 11644 of 1996 (Arising out of S.L.P. (C) Nos. 11008 of 1988, C.A. No. 7564 of 1996\nThe Judgment was delivered by : K. S. Paripoornan, J.\n1.  The above three appeals involve a common question of law, namely, whether \"Nylon Twine\" can be considered as \"Nylon Yarn\" so as to be covered by Item 18 of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as \"the Act\") as it stood prior to the Amendment of 1977.\n\"18 RAYON AND SYNTHETIC FIBRES AND YARN\nExplanation I \"Fibres and Yarn, other than Textured yarn\", shall be deemed to include\n(i) Man made fibres;\n(ii) Man made metallic yarn;\n(iii) Spun (discontinuous yarn containing not less than ninety per cent by weight of manmade fibres calculated on the total fibre content; and\n(iv) Man made filament (continuous) yarn that has not been processed to introduce crimps, coils, loops or curls along the length of the filaments, but does not include bulked yarn and stretch yarn.\nExplanation II \"Textured Yarn means yarn that has been processed to introduce crimps, coils, loops or curls along the length of the filaments and shall include bulked yarn and stretch yarn.\nExplanation III \"Base Yarn\" means yarn falling under sub item (i) of the this Item from which the Textured Yarn has been produced.\nExplanation IV This item does not include mineral fibres and yarn.\"\n2.  . It will be useful to note that from 1st March, 1977 a new item i.e. Item 68 was introduced to the first schedule to the Act which is to the following effect. \"\n3. Item 18 was also amended int he following manner:\n\"II. Man made filament yarns\n(i) Non cellulosic\n(a) other than textured\n(b) textured\nExplanation: \"Textured Yarn\" means yarn that has been processed to introduce crimps, coils, loops or curls along the length of the filaments and shall include bulked yarn and stretch yarn.\n(ii) Cellulosic;\n(iii) Metallized.\"\nWe heard Counsel.\n3.  In this group, the main appeal is Civil Appeal No. 715/81. It is an appeal preferred by the Union of India (Revenue) against the judgment and order of the High Court of Bombay dated 9.4.1980 rendered in Special Civil Application No. 2974/78. In the other two cases, the judgment in special civil application No. 2974/78 was followed. The judgment in the said special civil application is reported in 1980 (6) E.L.T. 249 1980 Indlaw MUM 3880 (Bom.).\n4.  The respondents assessees manufacture \"Nylon Yarn\" and \"Nylon Twine\". They are doing so eversince 1962. Under first schedule, Item 18 of the Act excise duty is payable in respect of \"Nylon Yarn\" as specified therein. The notification issued under Rule 8 of the Excise Rules provided that \"Nylon Yarn\", which is meant for use int he manufacture of fishing nets and parachute cords is exempt from the payment of so much of excise duty leviable under Item 18 as is in excess of Rs.4/ per kg. The assessees contended that \"Nylon Twine\" manufactured by them is used for the purpose of making fishing nets. Prior to 1975 they were allowed to clear Nylon Twine manufactured by them on payment of excise duty as specified under the above exemption notification.\n5. Thereafter, when the new item, viz Item 68 (residuary entry) was introduced in the Act, it was contended by the Excise Authority that Nylon twine manufactured by the assessees was not covered by item 18. According to the Revenue Nylon twine and Nylon yarn are two different items and Item 18 takes within its fold Nylon yarn only and not Nylon twine. The authorities claimed excise duty on \"Nylon twine\" under Item 68. The assessees paid such duty under protest.\n6. Thereafter, the application filed by the assessees for refund before the Assistant Collector failed. He passed an order to that effect on 28.5.1976. The appeal filed was rejected by Appellate Collector on 28.9.1976. Similarly the Central Government rejected the revision by order dated 31.10.1979. It is thereafter the assessees approached the High Court of Bombay for refund of the amount paid under protest. A Division Bench of the High Court heard and disposed of the petition by judgment and order dated 9.4.1980. Sujata Manohar, J. delivered the leading judgment and Masodkar, J., though for different reasoning, agreed with the conclusion of Sujata Manohar, J.\n7.  Sujata Manohar, J., after referring to the following materials viz. Encyclopaedia Britennica, Vol.X (abridged version), the Indian Standards Indstitution Standard bearing No. AIS 332 of 1967 wherein the expressions \"Twine and Yarn\" were dealt with, the Indian Standards Institution Standard bearing No. IS 1402 767 relating to \"netting for fishing\", the Manual called \"Netting Materials for Fishing Gear\" the manual published by the Food and Agriculture Organisation of the United Nations, the orders received by the assessees from the Director of Fisheries, Madras, two affidavits, one from the Managing Director of Maharashtra Rajya Machimar Sekhari Sangh Limited and another from a Partner of Maharashtra Fishing Material Company, concluded thus, in paragraph 14 of the judgment:\n\"14. There is, however, sufficient material on record which goes to show that nylon twine manufactured by the petitioners has been treated as a kind of nylon yarn by the people in the trade. It is commonly considered as yarn. Hence it can be classified under Item 18. The respondents have failed to establish that nylon twine must be taxed under Item 68, as it is not covered by Item 18 of the First Schedule. The respondents are the taxing authorities, and they must show that the item in question is taxable in the manner claimed by them. the burden is on the taxing authorities to show that the item in question is taxable in the manner claimed by them.\"\n(Emphasis supplied)\n8. The learned Judge, therefore, directed the Revenue to refund to the assessees the excess amount collected from them as Central Excise Duty on the basis that \"Nylon Twine\" falls under Item 68 of the First Schedule to the Act.\n9.  Sri P.A. Chaudhary, Senior Advocate, appearing for the Union of India appellant, contended that Nylon Twine is different from Nylon Yarn, that Item 18 of the Act would cover only \"Nylon Yarn\" and not Nylon Twine; that a mere look of Nylon Twine will go to show that it is different from Nylon Yarn,; that in commercial different physical characteristics. He stressed that Nylon Twine the commodity involved int e instant case is not known as \"Nylon Yarn\" and so, the same is outside the purview of Item 18 of the Act. Certain decisions of general application were also cited. Counsel for the respondents assessees contended that the Nylon Twine is nothing but Nylon Yarn, other than textured yarn and referred to the Encyclopaedia Britennica, Vol X (abridged version), and the literature issued by the Indian Standards Institution and others, the trade inquiries and the affidavits filed by persons in the particular trade, would conclusively show that Nylon Twine is considered as a kind of Nylon Yarn by the traders and persons dealing with the subject matter and the High Court had abundant material to substantiate the above proposition.\n10.  We do not think it is necessary, especially in this batch of cases, to refer in detail to the decisions cited by the Revenue or the text books and the literature of the Indian Standards Institution and the Manual published by the Food and Agriculture Organisation, United Nations, as to what is meant by \"Twine\", \"yarn\", \"netting twine\" etc. referred by the High Court. In this case, clinching evidence is afforded to demonstrate that trade and industry which deals with the goods, consider \"Nylon Twine\" as a kind of \"Nylon Yarn\".\n11.  Thee are innumerable decisions of this Court which have laid down the test or the principles to be borne in mind in construing the Items or Entries in Fiscal Statutes. In recent decision in Indian Cable Company Ltd., Calcutta v. Collector of Central Excise, Calcutta and Others, [(1994) 6 SCC 610 1994 Indlaw SC 1053] a three member Bench stated the law thus:\n\"........ in construing the relevant item or entry, in fiscal statutes, if it is one of every day use, the authority concerned must normally, construe it, as to how it is understood in common parlance or int he commercial world or trade circles. It must be given its popular meaning. The meaning given in the dictionary must not prevail. No should the entry be understood in any technical or botanical or scientific sense. In the case or technical words, it may call for a different approach. The approach to be made in such cases has been stated by Lord Esher in Unwin v. Hanson thus:\n\"If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business or transaction knows and understands to have a particular meaning in it then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.\" We would only add that there should be material to enter appropriate finding in the case. The material may be either oral or documentary evidence.\"\n12.  In a subsequent decision in Collector of Central Excise, Chandigarh v. Steel Strips Ltd., Sangrur, [(1935) 4 SCC 241 1995 Indlaw SC 923], another three member Bench stated the law thus:\n\"............... We find no evidence upon the record in regard to what happens to hot rolled steel strips before cold rolled steel strips are produced.\" It cannot be sufficiently emphasised that when it is the case of the Excise authorities that an article is the result of a process of manufacture and it is commercially distinct and known as such, it is for the Excise authorities to lay evidence in this behalf before the first adjudicating authority regardless of the fact that he is an officer of the Excise Department. There should, ordinarily, be article is the result of a process of manufacture; in the event of difficulty, it would be open to the Excise authorities to seek a direction requiring the assessee to set out in writing what it does to obtain the article.\nToo often, as our experience in this Court and in the High Courts, before the Tribunal was established, shows, lack of evidence has led to the failure of the case of the Excise authorities and, consequently, to the loss of revenue to the State. Failure to lay the requisite evidence cannot be made up by reference to authoritative publications unless the Excise authorities inform the assessee that they propose to rely upon the same before the adjudicating authority ........... Technical evidence and authoritative publications must, therefore, be placed in the first instance before the adjudicating authority and the Tribunal. They have the requisite technical expertise to evaluate the same.\"\n13.  The law on the point as laid down by this Court (in various decisions) has been summarised int he book \"Principles of Statutory Interpretation\" (Sixth Edition 1996) by Justice G.P. Singh, at, thus:\n\"............ So in construing entries of goods in Excise, Customs or Sales Tax Acts resort should normally be had not to the scientific or technical meaning but to their popular meaning viz. the meaning attached to the expressions by those dealing in them. ............... The popular meaning int he context of a Sales Tax Act is that meaning which is popular in commercial circles for the Act essentially, in its working, is concerned with dealers who are commercial men.\"\n\"The justification of the rule that the words are to be understood in their natural, ordinary or popular sense is well expressed by JUSTICE FRANKFURTER: \"After all legislation when not expressed in technical terms is addressed to common run of men and is therefore to be understood according to sense of the thing, as the ordinary man has a right to rely on ordinary words addressed.\" In determining, therefore, whether a particular import is included within the ordinary meaning of a given word, one may have regard to the answer which everyone conversant with the word and the subject matter of statute and to whom the legislation is addressed, will give if the problem were put to him.\"\nxxxx xxx xxx xxx\n\"As a necessary consequence of the principle that words are understood in their ordinary or natural meaning in relation to the subject matter, in legislation relating to a particular trade, business, profession, art or science, words having a special meaning in that context are understood in that sense. Such a special meaning is called the technical meaning to distinguish it from the more common meaning that the word may have.\n................ The Supreme Court \"has consistently taken the view that, in determining the meaning or connotation of words and expressions describing an article in a tariff Schedule, one principle which is fairly well settled is that those words and expressions should be construed in the sense in which they are understood in the trade by the dealer and the consumer. The reason is that it is they who are concerned with it, and, it is the sense in which they understand it which constitutes the definitive index of legislative intention\". \"\n14.  Stated briefly, we should understand, the expression occurring in Item 18 of the Act, in the sense, in which the persons who deal in such goods understand it normally.\n15.  In this case, apart from the meaning given to the words \"Yarn\", \"Twine\" etc., in the standard works referred to by the High Court, two items of evidence stand out prominent and clinch the issue. The first is, an order received by the assessee from the Director of Fisheries, Madras which goes to show that Nylon Twine is considered as a type of Nylon Yarn used for making fishing nets. The second is, two affidavits filed by the assessees before the authorities one from the Managing Director of Maharashtra Rajya Machimar Sekhari Sangh Limited and another from a Partner of Maharashtra Fishing Material Company, wherein it is stated that \"Twine\" is a category of \"Yarn\"> What is more the assessees made available the above persons who have sworn to the affidavits for cross examination at the time of the hearing of the applications, but the Revenue did not cross examine them. The trade inquiry received by the assessees and also the affidavits conclusively point out that Nylon Twine is considered as a kind of \"Nylon Yarn\" in the particular trade by persons conversant with the subject matter. The revenue has not let in any material to the contra.\n16.  In our view, the conclusion reached by the High Court is fully in accord with the decisions of this Court and the same is justified in law. The burden of proof is on the taxing authorities to show that the particular case or item in question, is taxable in the manner claimed by them. Mere assertion in that regard is of no avail. It has been held by this Court that there should be material to enter appropriate finding in that regard and the material may be either oral or documentary. It is for the taxing authority to lay evidence in that behalf even before the first adjudicating authority. Especially in a case a this, where the claim of the assessee is borne out by the trade inquiries received by them and also the affidavits filed by persons dealing with the subject matter, a heavy burden lay upon the revenue to disprove the said materials by adducing proper evidence. Unfortunately, no such attempt was made.\n17. As stated, the evidence led in this case conclusively goes to show that Nylon Twine manufactured by the assessees has been treated as a kind of Nylon Tarn by the people conversant with the trade. It is commonly considered as Nylon Yarn. Hence, it is to be classified under Item 18 of the Act. The Revenue has failed to establish the contrary. We would do well to remember the guidelines laid down by this Court in Dunlop India Ltd. v. Union of India (AIR 1977 SC 597 1975 Indlaw SC 3), in such a situation, wherein it was stated:\n\"......... When an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause.\"\n18.  We concur with the reasoning and conclusion of the High Court. There is no substance in these appeals. The judgment s appealed against in this batch of appeals are affirmed.\n19. The appeals are dismissed with costs, including Counsel's fee of Rs.5,000/ in each case.\nAppeal dismissed\n"}
+{"id": "NbrnTP3fAb", "title": "", "text": "Chemical and Fibres of India Limited v Union of India and Others\nSupreme Court of India\n\n7 January 1997\nC.A. No. 3495 of 1982 with C.A. No. 3507 of 1982 with Transferred Case No. of 1996 (Arising out of Transfer Petition (C) No. 188 of 1983)\nThe Judgment was delivered by: Sujata V. Manohar, J.\n1. These appeals and the transferred appeal rise a common question: whether polymer chips manufactured by the assesses and used by them in the manufacture of nylon yarn can be classified, for the purpose of levy of excise duty, under Item 15A in Schedule I to the Central Excises and Salt Act, 1944, as it stood during the period 1962 to 1972. For the sake of convenience we are period 1962 to 1972. For the sake of convenience we are setting out the facts in relation to the transferred appeal pertaining to M/s. Nirlon Synthetic Fibres and Chemicals Ltd.\n2. At all material times the company manufactured nylon yarn, a synthetic man-made fibre under an industrial licence under an industrial licence granted by the Government of India. For the manufacture of nylon yarn, the company imported caprolactum monomer. The company paid customs duty as well as countervailing duty on its import of caprolactum monomer. This raw material was used by the company for manufacture of nylon yarn. In the course of processing of caprolactum monomer the company obtained at an intermediate stage a product called 'Polymer Chips', also known as Nylon 6 Chips, which were consumed in the manufacture of the finished product, namely, nylon yarn. The question relates to the levy of excise duty on these polymer chips. The only question which now survives for our determination is whether these polymer chips can be classified under Item 15A of Schedule I to the Central Excises and Salt Act, 1944 as it stood during the period 1962-1972, since this period covers all the appeals.\n3. The assessee has described the process employed in its factory for polymerisation of caprolactum monomer. Once caprolactum is polymerised, it becomes nylon. In order to change the form of this substance and give it the required properties which enable textile yarn to be produced from it further processing is required in the course of which, at an intermediate stage, polymer chips are produced. The chips are obtained for the purpose of removing the remnant monomer so that the subsequent processing becomes more convenient. These chips which are otherwise called Nylon 6 Chips, are then dried, melted and spun into continuous filament by the process of extrusion. The spun filament undergoes further processing in order to get yarn in a saleable form. Polymer chips which are produced by the assessees companies have a relative viscosity of 2.22 to 2.30. The average molecular weight ranges from 10,000 to 18,000. These chips are suited only for the manufacture of textile fibres and are used exclusively for that purpose.\n4. With this background, let us examine whether these polymer chips fall under Entry 15A. Entry 15A was amended on 18th of February, 1974. We, therefore, are required to consider Entry 15A as it existed prior to 28-2-1964 and the Entry as it existed after 28.2.1964.\nI\nEntry 15A as it existed prior to 28-2-1964 was as follows:\n\"Entry 15A: PLASTICS, ALL SORTS:\n(i) Moulding powers, 25% ad valorem granules and flakes (thermosetting and thermoplastic).\n(ii) Polythelene fixer, Layflat tubings and P.V.C. sheets (that is to say, polyvinyl chloride sheets),\n(iii) Not otherwise specified.\"\nThe assessee contends that polymer chips or nylon 6 chips manufactured by the assessee are not known in the trade as plastics and hence they cannot be classified under Entry 15A which deals with plastics all sorts.\nEncyclopaedia Britannica, Volume 18, while dealing with \"plastics\" has this to say on the subject:\n\"The articles called \"plastic\" generally require shaping by heat during their fabrication by moulding or extrusion. Since the newer synthetic products can frequently be used inter-changeably as coatings or as mouldings, the distinction between resins and plastics become less pronounced. Moreover modern technology shows that the materials which are designated as rubber, fibres, resins and plastics are of a similar molecular structure and by appropriate chemical and physical treatment, it is possible to interconvert any of these materials.\nIt follows that certain structural features are common to all these products and being common they relate to similarity in physical properties between materials which are not necessarily chemically related. It might be argued that rubber is a plastic, since it can be fabricated by procedure similar to those employed in moulding plastics; but rubber is not generally considered to be a part of the plastics industry Similarly the fibre industry is considered to be independent of the plastics industry and here again the same raw-materials, polyamides (nylon) cellulose and cellulose acetate are used by both industries. Plastics are also divorced from the self-supporting type of film production such as the manufacture of photographic film and celluphone. The term plastic, therefore, is essentially a commercial classification to which no strictly scientific definition can be applied.\"\n[underlining ours]\n5. The term 'plastic', therefore, is a commercial classification which covers various kinds of natural or synthetic materials which can be shaped by heat during their fabrication either by moulding or by extrusion and which will retain that shape during use. It is also made clear that normally, rubber or synthetic material which is used for the manufacture of fibres and yarn, or for the manufacture of photographic film and celluphone, is not commercially considered as plastic.\n6. In the book \"Polymers and Resins\" by Brage Golding, 1959 Edition, \"plastic\" is defined as under:\n\"A plastic has been defined in a limited sense as any of a large group of organic substances, whether natural or synthetic, which can be moulded (Plastikos = fit for moulding). The noun 'Plastic' is usually applied to all polymers which are not considered to be elastomers or fibres; i.e. which exhibit neither the long range elasticity of elastomers nor the very high crystallinity of most fibres. In the engineering sense, however, a plastic is a mixture containing one or more resins compounded with fillers, plasticizers, lubricants, dyes etc. which has been subsequently fabricated.\nCommercial nylon fibres are linear and have molecular weight averages of the order of 12,000 to 20,000. If the average molecular weight is below 6,000 little or no fibre formation is possible; fibres formed from polymers with an average molecular weight of about 6,000 to 10,000 are weak and brittle. As the average molecular weight increases above this range, the fibre becomes stronger. However, if the molecular weight runs much over 20,000 the polymer becomes too difficult to melt or dissolve. Therefore, the process of polymerisation must be stopped in the desired average molecular weight range.\"\n7. Chamber's Dictionary defines 'plastics' as \"generic name for certain natural and synthetic substances which under heat and pressure become plastic and can then be shaped or cast\".\nIn Webster's Third New International Dictionary 'plastic' has been described as under:\n\"Plastic (1) a substance that at some stage in its manufacture or processing can be shaped by flow (as by application of heat or pressure) with or without fillers, plasticizers, rainforcing agents, or other compounding ingredients and that can retain the new solid, often rigid, shape under conditions of use;\n(2) any of a large group of materials of high molecular weight that usually contain as the essential ingredient a synthetic or semi-synthetic organic substance made by polymerization or condensation (as polystyrene or a phenol-formaldehyde resin) or derived from a natural material by chemical treatment (as nitrocellulose from cellulose), that are molded, cast, extruded, drawn, or laminated under various conditions (as by heat in the case of thermoplastic materials, by chemical condensation in the case of thermosetting materials or polyesters, or by casting during polymerization of monomers) into objects of all sizes and shapes including films and filaments.\"\n8. Our attention is also drawn to the American Society for Testing Material Standard which makes a distinction between \"nylon\" and \"nylon plastics\" -including the former under the heading 'Definition of Textile Terms' and the latter under the heading 'Plastics Nomenclature'. The Indian Standard Institute Glossary also makes a distinction between \"nylon\" and \"nylon plastics\" and similarly classifies \"nylons\" under the glossary of textile terms and \"nylon plastics\" under the glossary of terms used in plastic industry.\n9. It is, however, urged on behalf of the Revenue that the chemical composition of the polymer chips (Nylon 6 Chips) which are produced by the assessee is similar to the chemical composition of material used in plastic industry. And hence, going by the chemical composition of this material, it can be appropriately classified as a plastic. This contention will have to be examined in the light of the wording of Entry 15A. Entry 15A does not use any scientific or technical term. It deals with \"plastics, all sorts\". As Encyclopaedia Britinnica has described, the term 'plastic' is a commercial classification. When this kind of a term in commercial use is used in an excise entry which deals with marketable commodities which are manufacture and which are subject to the levy of excise, we will have to examine that term in the light of how it is understood in the trade. If, however, strictly technical or scientific words are used, the approach for their interpretation may be different.\n10. We will refer to only some of the authorities which have been cited before us in this connection. As far back as in 1891, in the case of Unwin v. Hanson ([1891] 2 Q.B. 115 at 119), the court observed,\n\"If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language: if the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.\"\n11. In the case of Ramavatar Budhaiprasad etc. v. Assistant Sales Tax Officer, Akola ([1962] 1 SCR 279 1961 Indlaw SC 351), the Court was concerned with the scope of the word 'vegetables' occurring in C.P. and Berar Sales Tax Act, 1947. The Court said that betel leaves cannot be classified as vegetables although botanically they may fall in that category, because betel leaves are not commonly understood as vegetables.\n12. Again in the case of The Commissioner of Sales Tax, Madhya Pradesh, Indore v. M/s. Jaswant Singh Charan Singh (AIR 1967 SC 1454 1967 Indlaw SC 464) the Court held that the Entry \"Coal\" under the Madhya Pradesh General Sales Tax Act would cover charcoal also. The Court said that while \"Coal\" is technically understood as a mineral product while charcoal is manufactured by human agency from products like wood and other things, it is now well-settled that while interpreting items in statutes like the Sales Tax Act , resort should be had, not to the scientific or the technical meaning of such terms, but to the meaning attached to them by those dealing in them. (See in this connection South Bihar Sugar Mills Ltd. etc. v. Union of India & Ors. [(1968) 3 SCR 21 1968 Indlaw SC 249] and Dunlop India Ltd. v. Union of India & Ors. [(1976) 2 SCR 98 1975 Indlaw SC 3]).\n13. In the case of Asian Paints India Ltd. v. Collector of Central Excise (1988 (35) ELT 3 1988 Indlaw SC 415), Sabyasachi Mukharji J. (as he then was) has summed up the rule of interpretation in the following words:\n\"It is well-settled that the commercial meaning has to be given to the expressions in Tariff Items. Where definition of a word has not been given it must be construed in its popular sense. Popular sense means that sense which people conversant with the subject-matter with which the Statute is dealing, would attribute to it that in interpreting items in statutes like the Excise Act or Sales Tax Act, whose primary object was to raise revenue and for which purpose to classify diverse products, articles and substances, resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.\nIn the present case, since Entry 15A as it then stood, uses a commercial term \"plastics\" which is well-known in the trade and is used in the trade, we should not go into the technical analysis of the composition and character of a plastic product. We should go by the meaning which is attached to the term 'plastics' in the trade parlance. Plastics as understood in the trade cover all kinds of synthetic materials. As the Encylopaedia Britannica. Sets out very clearly, there is a distinction made in commercial parlance between materials used in the production of plastics and materials used in the production of fibres, films or rubber although they may share certain structural features. The assessee has also filed affidavits from people in the trade to say that polymer chips of the kind manufactured by the assessee are not considered as plastics by those dealing in plastics.\nPrior to the assessee's manufacturing these chips in its own plant, the assessee used to import similar chips for the purpose of manufacture of nylon yarn from BASE. The product imported was caprolactum Ultramid BS. Our attention is drawn to the catalogue of BASF products of July 1961, in which captrolactum Ultramid BS is shown under \"Raw materials for synthetic fibres\", while there is a separate head for \"Plastics and auxiliaries for plastics\" under which other material such as Ultramid A, Ultramid AK, Ultramid B and Ultramid BM are shown. This also indicates that material which is used for the production of nylon yarn is not considered in the trade as a plastic material. The assessee, therefore, is right when it contends that Item 15A as it stood prior to 28.2.1964 does not cover polymer chips manufactured by it.\nItem 15A, however, as amended after 28.2.1964 was as follows:-\n15A. ARTIFICIAL OR SYNTHETIC RESINS AND PLASTIC MATERIALS, AND ARTICLES THEREOF. Twenty percent ad valorem.\n(1) Artificial or synthetic resins and plastic materials in any form, whether solid, liquid or pasty, or as powder, granules or flakes, or in the form of moulding powders, the following, namely:-\n(i) Condensation, Poly-condensation and Poly-addition products, whether or not modified or polymerised; including Phenoplasts, Aminoplasts Alkyds, Polyurethane, Polyallyl Esters ad other Unsaturated Polyesters;\n(ii) Polymerisation and Copolymerisation products including Polyethylene and Polytetrahaloethylene, Polyisobutylene, Polystyrene, Polyvinyl chloride, Polyvinyl acetate, Polyvinyl Chloroacetate and other Polyvinyl derivatives, Polyamides, Polyacrylic and Polymethacrylic derivatives and Coumarone-Indene resins; and\n(iii) Cellulose acetate (including di-or tri-acetate), Cellulose acetate butyrate and Cellulose propionate, Cellulose acetatepropionate, Ethyl cellulose, and Benzyl cellulose whether plasticised or not, and plasticised Cellulose nitrate.\n(2) Articles made of plastics, all sorts, including tubes, robs, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexbile, including layflat tubings and Polyvinyl chloride sheets. Explanation:For the purpose of sub-item(2), 'plastic' means the various artificial or synthetic resins or plastic material included in sub-tem (1).\"\n14. The main heading of this item is now changed to read \"Artificial or synethic resins and plastic materials and articles thereof\". Cl. (1) refers to artificial or synethic resins and plastic material in any form, \"among them the following\" which are described in sub-clauses (i), (ii) and (iii). These sub-clauses describe the technical process by which the end product is derived. Thus in subcl. (i) for example, the processes which are referred to, inter alia, are condensation, poly-condensation and polyaddition and products resulting therefrom. Sub-cl. (ii) refers, inter alia, to polyamides. All these are technical and scientific terms and processes. The Revenue contends that in the strict sense of the term, polymer chips or Nylon 6 Chips which are manufactured by the assessee are artificial or synthetic resins as they fall in the category of polyamides in sub-cl. (ii) of Cl. (I) of Item 15A. The assessee, however, contends that artificial or synthetic resins which are covered by Item 15A refer only to plastics and they do not refer to those artificial or synthetic materials which may be processed in the manner described in sub-cls. (i) to (iii), but which give rise to products used for the textile industry such as the polymer chips manufactured by the assessee.\n15. The assessees have pointed out that the words \"the following\" in Cl. (1) of Item 15A which precede subcls. (i) to (iii) clearly indicate enumeration or description of the kinds of artificial or synthetic resins and plastic materials in different forms in sub-cls. (i) to (iii). Therefore, all products covered by sub-cls. (i) to (iii) must answer the basic description of \"Artificial or synthetic resins and plastic materials\". These sub-clause cannot cover materials not known as artificial or synthetic resins or plastic material. The assessees further contend that \"synthetic resins\" is a term used to describe basic material in plastic industry. It does not refer to basic raw material used in other industries.\n16. The question, therefore, which we have to decide is whether artificial or synthetical resins should be confined only to those resins which ultimately produce material having plastic qualities or whether they would include within their scope other kinds of material derived by similar processes which are described in sub-clauses (i), (ii) and (iii), but which are suitable for use in other kinds of industries such as rubber industry, textiles or films.\n17. Are the words \"artificial or synthetic resins\" interchangeable with or linked with the words \"plastic material\"? Brage Golding in his treatise on \"Polymers and Resins\", in Chapter I which deals with introductory concepts and definitions, after stating that it is unfortunate that there are no explicit definitions of the words resins and plastics, the meanings being understood by those who use them, has attempted to define these expressions as follows:\n\"Probably the closest one can come to a definition of resins is that it is a solid or semi-solid, natural or synthetic organic substance of relatively high molecular weight (not necessarily a polymer) which exhibits no sharp melting point, breaks with a conchoidal fracture, and usually (but not always) is predominantly amorphous in structure. A plastic has been defined in a limited sense as any of a large group of organic substances, whether natural or synthetic, which can be molded (plastikos fit for molding).\" He goes on to observe: \"The term 'resin' originally referred to natural products (particularly of vegetable origin) but now includes the man-made substances. As will be seen from the physical descriptions of the polymers given in later chapters, the above definitions of both resin and plastic include many of these polymers, and the terms are now often used interchangeably.\"\n18. Webster's Dictionary defines \"Resins (synthetic)\" as:\n\"any of a large class of synthetic products (as alkyd resins or phenolic resins) usually of high molecular weight that have some of the physical properties of natural resins but typically are very different chemically, that may be thermoplastic or thermosetting, that are made by polymerization or condensation, and that are used chiefly as plastics or the essential ingredients of plastics, in varnishes and other coatings, in adhesives, and in ion exchanges (when the resin itself is capable of being shaped into a finished article without a plasticizer, as polystyrene), the terms resin and plastic are interchangeable for that material in industrial terminology the unfabricated material is sometimes called a resin and the fabricated article a plastic.\n(underlining ours).\n19. Apart from the portion underlined, the reference to thermoplastic and thermosetting qualities of such resins is also a reference to their plastic qualities.\n20. The British Plastics Year Book of 1967 describes synthetic resins as \"resins produced by chemical reactions, they are of different chemical composition and behaviour from natural resins. The term is now generally applied to all polymeric plastics materials with the possible exception of cellulosic and casein materials. Synthetic resins are classified by the initial reacting materials, e.g., as phenolic amino, acrylic or vinyl resins, or on chemical composition, e.g., polyester ad epoxy resins.\"\n21. Sorenson and Campbell in their book \"Preparation Methods of Polymer Chemistry\" in Chapter 7 'Cross-linked synthetic Resins' have said: \"Today, 'resin' covers a multitude of polymer types, including the classical phenolformaldehyde condensation and the relatively recent epoxy resins, vinyl polymers such a polystyrene and poly methyl methacrylate and condensation polymers of the polyamide or polyester class. Most of the application of the term 'resin' is to those linear or cross-linked (or cross-linkable) polymers that are used in molding, casting, or extruding operations and in surface coatings; and, to most crosslinked (or cross-linkable) polymers, no matter what the end use (as in adhesives, textile finishes, etc.). Thus poly methyl methacrylate and various polyamides, both essentially linear polymers, are termed molding resins when directed to a molding end use. However, polyamides would not be termed resins by the synthetic fibre industry in their usage of the material.\n22. In other words, \"synthetic resin\" is a term used in plastic industry and possibly in other industries, but not in the textile industry to refer usually to unfabricated material out of which the end product is made.\n23. While the first three descriptions/definitions of synthetic resins emphasise the plastic quality of synthetic resins, the last description clearly brings out the fact that in the synthetic fibre industry, polyamides which are used as raw material would not be termed as resins. The term 'synthetic resins', therefore, appears to be used in connection with plastic materials. The British Plastics Year Book of 1967 quoted earlier also emphasises that the term 'synthetic resins' is now generally applied to all polymeric plastic materials with the possible exception of cellulosic and casein materials. Webseter's Dictionary has also described synthetic resins as those which may be thermoplastic or thermosetting these being typical characteristics of plastic material and has clearly said that synthetic resins are used chiefly as plastics or essential ingredients of plastics as also in varnishes and other coatings and in adhesives and ion exchanges. There is no reference here to their being used in the manufacture of yarn. Webseter's Dictionary also states that the terms 'resin' and 'plastic' are interchangeable and some times the unfabricated material is called resins and the fabricated material is called a plastic. This perhaps explains why the words \"artificial or synthetic resins\" were added in Entry 15A to \"plastics\" in order to refer to and cover the raw material which goes into the manufacture of plastic materials. Encyclopaedia Britannica also which was quoted earlier by us, states that while the designation \"plastic\" is broader generally than the term \"resin\", both terms are used indiscriminately with respect to synthetic products.\nTherefore, the reference material which is produced before us indicates that synthetic resins are used in connection with plastic material and that often the unfabricated material is referred to as resin while the fabricated article is referred to as a plastic. Polyamides which are used for the purpose of manufacture of yarn are not referred to as synthetic resin in the textile industry.\n24. The term 'synthetic resin or artificial resin', therefore, far from being scientifically precise, seems to be as elusive to define as the term \"plastic\". The preponderance of view appears to be, however, that the term 'synthetic resin' is used in connection with material which is used for producing articles of plastic and is not used to refer at least to material used in the textile industry.\n25. Our attention has been drawn to \"Concise Guide to Plastics\" by Simmonds and Church in which a passage under the heading Polyester Resin is as follows:\n\"In the broad sense of the term polyester resins include many types of resinuous condensation products and collectively represent a broad and expanding field in the plastics industry... As indicated in other section, alkyd resin are basically polestar. Saturated liner polyester resins can be film or fibre forming material, for example, polyethelene, terephathalate\".\n26. This passage, however, does not assist us in the sense that it does not tell us what the terms \"synthetic resins\" or \"artificial resins\" generally refer to. It does, however, indicate that the term \"polyester resin\" represents the broad and expanding field in the plastic industry and satured liner polyester resins can be fibre forming. From the passage it is not clear whether the latter are commonly referred to as synthetic resins or not. By and large, therefore, one can come to the conclusion that the term 'artificial and synthetic resin' in used in the plastic industry to refer to various materials derived by the processes which are referred to sub-clauses (i), (ii) and (iii) of Entry 15A for the purpose of producing material or products which are suitable in the manufacture of plastics.\nThe processes which are described in sub-clauses (i), (ii) and (iii) are undoubtedly technical, scientific or chemical processes and the products which are derived as a result of these processes are also described in technical terms in the said sub-clauses. Polyamides, for example, which are relevant in the present case, would cover, by themselves a wide range of products. However, these sub-clauses come under the main heading of artificial or synthetic resins or plastic materials. Polyamides of textile grade are not plastic materials nor are they referred to as synthetic resins in the textile trade. Hence polyamides of textile grade would not fall under either \"Artificial or synthetic resins\" or under \"plastic material\". They would be outside the ambit of Entry 15A. The polymer chips which are manufactured by the assessee would not, therefore, come under the category of artificial or synthetic resins also. Polyamides, however, which are capable of producing plastic materials are known in the plastic trade as synthetic resins and would be covered by Item 15A.\n27. Since the technical literature and dictionaries which have been cited by us have emphasised the conjunction of artificial or synthetic resins with plastics, it is not possible for us to ignore this association. Therefore, even if the term \"Artificial or synthetic resin\" is construed as covering products derived by processes technically described in sub-clauses (i), (ii) and (iii) of Cl. (1) of Entry 15A, that product must answer the basic description as \"artificial or synthetic resin\". Polyamides in the form of polymer chips of textile grade are not known as synthetic resins. They are also not plastics. Hence Entry 15A does not cover them. The assessee is, therefore, entitled to succeed.\n28. The appeal of the assessee in C.A. No. 3495/82 is allowed and the appeals of the revenue in Transferred Case No. /96 (arising out of T.P.(C) No. 188/83 being O.A. No. 84 (arising out of T.P. (C) No. 188/83 being O.A. No. 84 of 1970 of the Bombay High Court) and Civil Appeal No. 3507 of 1982 are dismissed. In the circumstances of the case, there will be no order as to costs.\nAppeals disposed of.\n"}
+{"id": "rsK9EjHvIH", "title": "", "text": "Arunachalam v P. S. R. Sadhanantham\nSupreme Court of India\n\n6 March 1979\nCriminal Appeal No. 170 of 1973.\nThe Judgment was delivered by : O. Chinnappa Reddy, J.\n1. P. S. R. Sadhanantham and four others were tried by the learned Sessions Judge, Tirunelveli, on various counts. Sadhanantham (A1) was convicted under Sections 148 and 302 Indian Penal Code while the four others were convicted under Sections 147, 323 and 149 read with 323. The first accused was sentenced to imprisonment for life on the charge of murder and to rigorous imprisonment for a period of two years on the charge under Section 148. The others were sentenced to suffer imprisonment for a period of one year on each of the counts on which they were convicted, the sentences to run concurrently. All the five accused preferred an appeal to the High Court of Madras. The High Court allowed the appeal and acquitted all the accused of all the charges. Arunachalam the brother of the deceased has preferred this appeal against the judgment of the Madras High Court after obtaining special leave from this Court on 26-7-1973. The special leave was granted against the first accused Sadhanantham only.\n2. The case of the prosecution, briefly, was that there was enmity between the deceased Soundarapandian and his brother Arunachalam (P.W. 2) and Natesan (P.W. 3) on one side and Rajapalavesmuthu Nadar, his sons A1 and A2 and his nephews A4 and A5 on the other. There were the usual disputes arising out of elections to the Gram Panhayat and to the local cooperative stores. In connection with the village Amman festival, P.W. 3 was arranging to have a dance performance on the night of 20th August, 1970, in the Gandhi Maidan. About a week earlier, Sadhanantham, the first accused demanded that the dance should be performed under his presidentship but P.W.3 did not agree. On the night of 20th August, 1970, P.W.3 alongwith one Gopalakrishnan (P.W. 6) was decorating the stage. Tube lights were burning and several persons had gathered in front of the stage. At about 8.45 p.m. accused 1 to 5 came there and got up on the stage. At questioned P.W.3 how he dared to conduct the show without his presiding over it. P.W.3 replied that the dance performance would be conducted without the presidentship of A1. A1 then slapped P.W.3 on the cheek. A2 to A4 also started beating P.W.3 with their hands. P.W.6 and several others who were there ran away apparently not wanting to get involved in the fracas. P.W.3 jumped down from the stage and attempted to run away when A3 caught him and began to throttle his neck. A1, A2 and A4 joined in beating him with their hands. The deceased P.W. 1, P.W. 2 and P.W. 5 came running towards P.W.3. The deceased asked the first accused why they were beating his younger brother. A.3 and A.5 who were holding P.W.3 by the neck let him free. A.1 asked the deceased who he was to question him and saying so he took out a knife from his waist and stabbed the deceased on the left flank. The deceased fell down shouting \"stabbed, stabbed\".\n3. Accused 1 to 5 then ran towards the north. P.W.3 chased them over a distance of about one and half furlongs. They ran inside the forest. P.W.3 stopped chasing them further. In the meanwhile the injured Soundarapandian was taken by P.Ws. 1, 2 and 5 to the Police Station and then to the hospital at Kayalpattinam. At the Police Station, the writer P.W.14 recorded a statement Exhibit P-1 from Soundarapandian at 9.15 p.m. Soundarapandian when asked to sign the statement insisted on signing the statement after dipping the pen in the blood that was coming out of the wound. He was taken to the hospital in a jeep requisitioned by the police. P.W.4 the Medical Officer in charge of the Hospital examined the injured and found that the injury was of a serious nature. He sent the injured to the Government Headquarters Hospital at Tuticorin for further treatment. The District Medical Officer, P.W. 8 examined him and finding his condition very serious, sent a requisition Exhibit P-5 to the Sub Magistrate, Tuticorin to record the dying declaration of Soundarapandian. Exhibit P-6, the dying declaration was recorded by the Magistrate P.W.7 at 1.30 a.m. At 7.45 a.m. next morning, P.W.8 performed an operation but Soundarapandian could not be saved. He died at about 1.30 p.m. The autopsy was conducted by P.W.9 who, on dissection found that the diaphragm and the upper lobe of the left lung had been pierced. The police after completing the investigation laid a charge-sheet against Sadhanantham, Nithiyanantham, Thamilan, Kumaresan and Karthikeyan.\n4. In support of its case, the prosecution examined P. Ws. 1, 2, 3 and 5 as direct witneses to the occurrence and relied upon Exhibits P 1 and P6, the two dying declarations made by Soundarapandian. The prosecution also examined P. W. 6 to speak to the earlier part of the incident. All the accused denied the offence and stated that they were falsely implicated on account of enmity. In the cross-examination of the witnesses it was suggested that one Ramalingam was also injured at the same time and place. It was suggested that P. Ws. 2 and 3 had prevailed upon the deceased to name A-1 as the person who stabbed him. The learned Sessions Judge accepted the dying declarations as true. He also accepted the evidence of the eye witnesses. He convicted and sentenced the five accused as mentioned earlier. The High Court acquitted the accused primarily on the ground that neither the direct witnesses nor the dying declarations explained the serious injury caused to Ramalingam, who it appeared from the evidence of the Doctor P.W. 4, had received a stab injury 5 cms x 2 cms near the left side of the abdomen on the back. The High Court thought that though Exhibit P-1 was purported to have been recorded earlier than Exhibit P-6 in point of time, it was in fact recorded later. The High Court took the view that the first accused must have been implicated by the deceased as the assailant in Exhibit P-6 at the instance of P.W.3 who met him in the hospital at about 1 a.m. The evidence of the direct witnesses P. W.s. 1, 2, 3, and 5 was rejected on the ground that they were interested and had not explained how Ramalingam sustained the injury found on him. The conduct of P.W. 3 was also severely commented upon. The High Court acquitted all the five accused. Before proceeding to discuss the evidence and the findings of the High Court we remind ourselves of the confines of our jurisdiction to deal with appeals by special leave against judgments of acquittal by the High Court.\n5. Article 136 of the Constitution of India invests the Supreme Court with a plentitude of plenary, appellate power over all Courts and Tribunals in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the Court for set limits to itself within which to exercise such power. It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court. But, within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the High Court, in arriving at those findings, has acted \"perversely or otherwise improperly\". (See State of Madras v. Vaidyanath Iyer, and Himachal Pradesh Administration v. Om Prakash 1971 Indlaw SC 550.  In dealing with an appeal against acquittal, the Court will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced, as may be, by the judgment of acquittal. But, also, the Court will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where the High Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial court is rejected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this Court may fed obliged to step in to secure the interests of justice, to appease the judicial conscience, as it were.\n6. A doubt has been raised about the competence of a private party, as distinguished from the State, to invoke the jurisdiction of this Court under Article 136 of the Constitutionagainst a judgment of acquital by the High Court. We do not see any substance in the doubt. Appellate power vested in the Supreme Court under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by Appellate Courts and Appellate Tribunals under specific statutes. As we said earlier, it is a plenery power, 'exercisable outside the purview of ordinary law' to meet the pressing demands of justice (vide Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors 1954 Indlaw SC 134. Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone from invoking the Court's jurisdiction. The power is vested in the Supreme Court but the right to invoke the Court's jurisdiction is vested in no one. The exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it.\n7. Where a judgment of acquittal by the High Court has led to a serious miscarriage of justice the Supreme Court cannot refrain from doing its duty and abstain from inerfering on the ground that a private party and not the State has invoked the Court's jurisdiction. We do not have the slightest doubt that we can entertain appeals against judgments of acquittal by the High Court at the instance of private parties also. The circumstance that the Criminal Procedure Code does not provide for an appeal to the High Court against an order of acquittal by a Subordinate Court, at the instance of a private party, has no relevance to the question of the power of this Court under Article 136. We may mention that recently in Mohan Lal v. Ajit Singh 1978 Indlaw SC 473, this Court interfered with a judgment of acquittal by the High Court at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of such appeals. We do not share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this Court. Whether it is the State or a private party that invokes the jurisdiction of this Court, special leave is not granted as a matter of course but only for good and sufficient reasons, as well established by the practice of this Court.\n8. As earlier mentioned, the primary reason given by the High Court for rejecting the testimony of the direct witnesses and the dying declarations was the supposed failure of the prosecution to explain the serious injury found on the person of one Ramalingam alleged to have been injured at the same time and place as the deceased. We may at once say that nothing is known about this Ramalingam. He is not shown to be connected, even remotely, either with the prosecution party or with the faction of the accused. He was very surreptitiously and dexterously introduced into the case in the course of the cross-examination of the prosecution witness and thereafter made to loom large. He was, as we shall presently point out nothing more than a \"red herring\" across the track. We will refer to the whole of the evidence where Ramalingam was made to appear in the case to examine whether the High Court was right in rejecting the entire case of the prosecution on the ground that the injury on Ramalingam was not explained. P.W. 1 was put but one question whether he was aware that injuries were caused to one Ramalingam Nadar at the place of the occurrence on the night of occurrence. He stated that he was not aware of that fact. No further question was put to P. W. 1 pursuing the matter. Similarly P.W. 2 was also asked in cross-examination whether he was aware of the stabbing of one Ramalingam Nadar at the time of occurrence. He stated that he was not and that was the end of the matter and it was not pursued further. P. W. 3 was also asked the same question. He too denied knowledge of injuries sustained by Ramalingam Nadar on the night of occurrence. P.W. 5 was also asked a similar question and he too gave a similar answer. P.W. 4 the Medical officer, Kayalpattinam, deposed in his evidence that he examined one Ramalingam at about 11.30 p.m. on 20th August, 1970. and found an incised wound 5 cms x 2 cms x 2 cms near the left side of the abdomen on the back and one small irregular edged wound on the inner side of the first injury. The Doctor also stated that Ramalingam told him that he was assaulted by some unknown person when he was witnessing the dance show. P.W. 10 who had gone to witness the dance performance but who ran away when trouble started stated that when he was running away he saw one Ramalingam Nadar running along with him and that the said Ramalingam Nadar was keeping his hand near his waist and that the hand was blood stained. P.W. 15 the Head Constable attached to the Arumuganeri Police Station stated that 4 or 5 days after the occurrence he came to know that a case was registered in Arumuganeri Police Station on the strength of a complaint given by one Ramalingam. P.W. 167 the Investigating officer also stated that the First Information Report registered on the strength of Ramalingam's complaint had also been sent to the Magistrate and that a final report had also been sent. He denied the suggestion made to him that the First Information Report in respect of Ramalingam's complaint was suppressed as it was not in favour of the prosecution. These are all the appearances which Ramalingam made, on the stage of this case, in the mouth of the witnesses, though Ramalingam did himself not enter upon the scene. None of the accused made any reference to Ramalingam in his statement.\n9. It would be noticed that it was not suggested to any of the prosecution witnesses that Ramalingam was connected with either the prosecution party or the party of the accused. It was not suggested that the injury to Ramalingam was caused by a member of either group. It was not suggested that Ramalingam intervened in the fight and received an injury. In fact there was nothing to suggest that Ramalingam and the deceased received their respective injuries in the course of the same transaction. The only suggestion was that Ramalingam received an injury that night at the place of occurrence. It is in evidence that as soon as trouble started, the people who had gathered there started running helter skelter. While so running Ramalingam apparently received a stab injury accidentally or deliberately from someone. In fact according to the evidence of the Doctor, Ramalingam told him that he did not know who his assailant was. There was, therefore, absolutely nothing to connect the stabbing of Ramalingam with the stabbing of the deceased Soundarapandian. The evidence of P.W. 10 also was to the effect that Ramalingam himself was one of those who ran away from the scene alongwith him and that was before the deceased was stabbed. There was thus nothing to indicate that the deceased or any of the direct witnesses were aware or could possibly be aware of the injury caused to Ramalingam. In our opinion the High Court was entirely wrong and wholly unjustified in rejecting the testimony of the direct witnesses and the dying declarations on the irrelevant consideration that they did not explain the injury found on the person of Ramalingam.\n10. In regard to the dying declarations the reason given by the High Court to conclude that Exhibit P. 1 must have been recorded later than Exhibit P-6 was that Exhibit P-1 contained several statements not to be found in Exhibit P-6. We are afraid that the High Court was merely indulging in speculation and approaching the question from the wrong end. Exhibit P-1 which was recorded by P.W. 14 was as follows :\n\"Arumuganeri is my native place. I am doing shop business. Record dance was arranged to take place in Gandhi Maidan at Arumuganeri. I went to see the record dance along with Arunachala Nadar my elder brother, Gunesekaran younger sister's husband, and Somasundaram son of Adinarayana Perumal. We were talking, standing in front of Ramaswami temple. Sadanandam, Nithianandam, sons of P. S. Raja Nadar, Tamilam alias Subramaniam, Kumarsan son of Thangapla Nadar, Karthikyan son of Raja Pandia Nadar were beating my younger brother Natesan, on the north of the dancing stage. Myself, and the persons with me ran to that place. I questioned as to why you beat my younger brother. Sadanandam son of P. S. Raja Nadar forcibly stabbed me with the greece knife in the hand, on my left flank, below the rib I cried to the effect \"Ayyoh : stabbed.\" I covered the stab injury with my hand. My elder brother and Somasundaram, took me to Police station. There is prior enmity between myself and P. S. Raja Vagaria in connection with the elections. I read the statement. It has been recorded as narrated by me.\nSd/- Soundarapandian\"\n11. Exhbiit P-6 which was recorded by the Sub Magistrate, was as follows :\n\"There is one Gandhi Maidan in Arumganeri, Record dance was to be performed there. I went to see it. The dance was not begun. Myself, Arunachalam, my elder brother, Gunasekaran, my sister's husband were all talking. There was quarrel at the place of performance of the record dance. At that time, the record dance was not begun. Myself and others ran to the place where the quarrel took place. A boy called Sadanandem son of P. S. Raja Nadar stabbed me with a knife. I cried to effect \"Ayyoh Stabbed, stabbed ?\" The police station is very near. We all went there. My hand was stained with blood. There is no reason for stabbing me. L.I.T. of Thiru Soundrapandian\".\n12. It is true that Exhibit P-1 gives more details than Exhibit P-6. Exhibit P-1 mentions the names of A-2, A-3, A-4 and A-5 also in connection with the beating of P.W. 3. It also mentions that the deceased was stabbed on the left flank below the rib. It further mentions the prior enmity between the deceased and P. S. Raja Vageria. On the contrary Exhibit P-6 gives fewer details, and does not mention the names of the participants in the fight which preceded the stabbing of the deceased. The stabbing of the deceased by A-1 alone is particularly mentioned. What is important to be noted in Exhibit P-6 is that it refers to the circumstance that the deceased first went to the Police Station. That statement lends support to the prosecution case that the deceased and others went to the Police Station and a Statement was recorded at the Police Station from the deceased. What is more important is the circumstance that while Exhibit P-1 was recorded within a very short time after the occurrence, Exhibit P-6 was recorded a few hours after the occurence by which time the condition of the deceased had apparently deteriorated and he was not in a position to make as detailed a statement as P-1. The evidence of the District Medical Officer, P.W. 8, shows that when he saw him at 1 a.m. the condition of the deceased was very bad. P-6 was recorded, it may be noted at 1.25 a.m.\n13. It would also be seen that the condition of Soundarapandian at that time was such that his thumb impression and not his signature could be taken on Ex.P.6. The reason for less particulars in P-6 was quite obvious but yet the High Court completely missed it because of its wrong approach. There was no reason whatsoever to doubt the genuineness of Exihibit P-1 or P-6. The High Court thought that P.W.3 might have met the deceased in the Tuticorin hospital at 1 a.m. and induced him to implicate the first accused. This was nothing but speculation. As we mentioned the condition of the deceased was very bad at 1 a.m. and it is too much to think that anybody would have been allowed to go near the deceased in the critical condition in which he was in the hospital and to tutor him to implicate someone falsely. The evidence of three of the eye witnesses namely P.Ws. 1, 2 and 5 was dealt with by the High Court in a most summary and perunctory way. It was said:\n\"The name of this witness (P.W.1) was not mentioned by the deceased in Exh.P-6. It has been elicited from this witness that there was bitter enmity between him and the family of the accused. This witness was appointed by the deceased as a clerk in Arumuganeri Cooperative Stores and in the Panchayat election, P.W.1 proposed the name of the person who stood against the father of Accused 1 and 2. He was a prosecution witness in a criminal case instituted against the father of Accused 1 and 2. This witness is not only interested in the deceased as he was employed under the deceased as a clerk but also inimically disposed towards the family of the accused. It will, therefore, be unsafe to rely upon his evidence. P.W.2 is the brother of the deceased and P.W.5 is the brother-in-law of the deceased. They are very much interested in the deceased and they were also inimically disposed towards the accused. They are not telling the truth. They have not explained as to how Ramalingam sustained the injury. They have fallen in line with the statements made in the dying declaration. We do not accept their evidence\".\n14. The reasons given were that the witnesses were interested and that they had not explained the injury found on the person of Ramalingam. In the case of P.W.1 it was also stated that his name was not mentioned in Exhibit P-6. We do not think that the criticism of the High Court bears any scrutiny. We have perused the evidence of P.Ws. 1, 2 and 5 and we are unable to discard their testimony for the sole reason that they are interested witnesses. With regard to P.W.3 however, there is scope for much criticism having regard to his conduct subsequent to the incident. According to his evidence after he chased the accused he stopped for about an hour near the forest and returned to the village thereafter. While he was on his was back he saw his uncle's jeep on the road and learnt from his uncle that Soundarapandian had been taken to the hospital at Tuticorin.\nTherefore, he went to Tuticorin and saw his brother in the hospital at about 1 a.m. Thereafter he went to a hotel where he slept for the night. Next morning without going to the hospital to find out the condition of his brother he returned to the village and made himself available to the police for questioning at about 1 p.m. Though there cannot be any doubt that he witnessed the occurrence his subsequent conduct does not inspire such confidence as to place implicit reliance on his evidence. We, therefore, agree with the High Court that P.W.3 was not a reliable witness.\n15. In our view the two dying declarations Exhibits P-1 and P-6 may be relied upon without any reservation and the evidence of P.Ws. 1, 2 and 5 may also be safely accepted. We have considered the reasons given by the High Court for acquitting the first accused and we find them wholly unsatisfactory. In the light of the principled set out by us earlier we think that the interests of justice demand that we should interfere with the order of acquittal in the present case.\nAccordingly, we allow the appeal, set aside the judgment of the High Court and restore the judgment of conviction and sentence passed by the learned Sessions Judge of Tirunelveli against the respondent (first accused) on the charge under Section 302 Indian Penal Code.\nAppeal allowed\n"}
+{"id": "DmH5RiMKpP", "title": "", "text": "P. S. R. Sadhanantham v Arunachalam and Another\nSupreme Court of India\n\n1 February 1980\nW.P. No. 355 of 1979\nThe Judgment was delivered by : V. R. Krishnaiyer, J. and R. S. Pathak, J.\n1. Is it constitutionally valid or desirable on principle to permit a private citizen, who has but loose nexus with the victim of a crime, to invoke the special power under Art. 136 of the Constitution for leave to appeal against an acquittal of the alleged criminal thereby putting in peril his life or liberty in the absence of any legislative provision arming such officious outsider with the right to appeal? This issue, profound on its face but unsound on reflection, falls for decision in this writ petition under Art. 32 of the Constitution. The facts, compressed into a single sentence, are that the petitioner was acquitted of a murder charge by the High Court in appeal but the brother of the deceased-not the State nor even the first informant-moved this Court under Art. 136, got leave and had his appeal heard which resulted in the petitioner (accused) being convicted and sentenced to the life term under s. 302 I.P.C.\n2. The present contention urged to upset that conviction, is that the leave to appeal and the subsequent proceedings were unconstitutional as violative of Art. 21 the procedural magna carta protective of life and liberty-and, therefore, the sentence must fail. This plea, faintly presented before this Court when the appeal was heard, was briefly considered and rightly rejected. This second battle, doomed to fail like the first, demands of us a condensed ratiocination in negation of the contention hopefully urged by Sri Mridul, counsel for the petitioner.\n3. Two inter-laced issues arise and they turn on (a) the content and character of Art. 136 vis-a-vis Art. 21, and (b) the locus standi of a Good Samaritan, if we may use that expression to refer to a public-spirited citizen seeking to trigger the legal process to see that justice is done to his neighbour. Article 21, in its sublime brevity, guardians human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi's case. So, it is axiomatic that our constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law.\n4. The question is whether there is any procedure, fair or otherwise, which enables a kindly neighbour who is not a complainant or first informant, to appeal to the Supreme Court against an allegedly erroneous acquittal by the High Court. The corpus juris contains no black-letter law arming any such purely compassionate soul to approach this Court, argues Sri Mridul; and so, his client's liberty has been deprived by a proceeding initiated by someone without any procedure established by law. We see the dexterity in the advocacy but reject its efficacy.\n5. Nor are we impressed with the submission that the brother of the deceased in the case, or any other high-minded citizen, is an officious meddler who has no business nor grievance when the commission of grievous crime is going unpunished. There is a spiritual sensitivity for our criminal justice system which approves of the view that a wrong done to anyone is a wrong done to oneself, although for pragmatic considerations the law leashes the right to initiate proceedings in some situations. Again, 'justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. The deep concern of the law is to track down, try and punish the culprit, and if found not guilty, to acquit the accused.\n6. It is imperative under Art. 21 that there should be some civilised procedure for holding a man guilty and depriving him of his liberty. Undoubtedly, this Court, if it grants leave under Art. 136 and eventually finds him guilty, deprives him of his liberty; and so the crucial question that falls for decision is as to whether there is any procedure as predicated by Art. 21 independent of or implicit in Art. 136. It is apparent that there is no statutory provision which creates a right of appeal in favour of a stranger enabling him to challenge an acquittal by the High Court.\n7. The Criminal Procedure Code does not create such a right of appeal and, speaking generally, a right of appeal is the creature of statute. So it is submitted that before the court may grant special leave under Art. 136 there must be an antecedent right of appeal, absent which the question of leave by the court does not arise. The argument is ingenious but inference is fallacious. An insightful understanding of the sweep, scope and character of Art. 136 will easily dispel the dichotomy between an antecedent right of appeal and a subsequent grant of leave, which is the corner-stone of the contention of the petitioner.\n8. The jural reach and plural range of the judicial process to remove injustice in a given society is a sure index of the versatile genius of law-in-action as a delivery system of social justice. By this standard, our constitutional order vests in the summit court a jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refined yet flexible censor called judicial discretion. This nidus of power and process, which master-minds the broad observance throughout the Republic of justice according to law, is Art. Specificity being essential to legality, let us see if the broad spectrum spread-out of Art. 136 fills the bill from the point of view of \"procedure established by law\".\n9. In express terms, Art. 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, a fair procedure as contemplated by Art. 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extra ordinary in its amplitude, its limit, when it chases injustice, in the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Art. 136. Is it merely a power in the Court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise ? Is there no duty to Act fairly while hearing a case under Art. 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal ? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Art. 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the very terms of Art. 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well-established by precedents in our jurisprudence. Judicial discretion is canalised authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed : The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure.\n10. He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.\" It is manifest that Art. 136 is of composite structure, is power-cum-procedure-power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. In short, there is an in-built prescription of power and procedure in terms of Art. 136 which meets the demand of Art.21.\n11. We may eye the issue slightly differently. If Art. 21 is telescoped into Art. 136, the conclusion follows that fair procedure is imprinted on the special leave that the court may grant or refuse. When a motion is made for leave to appeal against an acquittal, this Court appreciates the gravity of the peril to personal liberty involved in that proceeding. It is fair to assume that while considering the petition under Art. 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave.\n12. When this conspectus of processual circumstances and criteria play upon the jurisdiction of the court under Art. 136, it is reasonable to conclude that the desideratum of fair procedure implied in Art. 21 is adequately answered. Once we hold that Art. 136 is a composite provision which vests a wide jurisdiction and, by the very fact of entrusting this unique jurisdiction in the Supreme Court, postulates, inarticulately though, the methodology of exercising that power, nothing more remains in the objection of the petitioner. It is open to the Court to grant special leave and the subsequent process of hearing are wellestablished. Thus, there is an integral provision of powercum-procedure which answers with the desideratum of Art. 21 justifying deprivation of life and liberty.\n13. The wider the discretionary power the more sparing its exercise. Times out of number this Court has stressed that though parties promiscuously 'provoke' this jurisdiction, the Court parsimoniously invokes the power. Moreover, the Court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. Thus, procedural limitations exist and are governed by well-worn rules of guidance. Sri Mridul urged that every inquisitive benefactor or offensive adventurer cannot 'rush in' and upset a verdict of acquittal by resort to Art. 136. This is really a matter for exercise of judicial discretion and the Court can be trusted to bear in mind time-honoured practices and the values of Art. 21.\n14. But no dogmatic proscription of leave under Art. 136 to a non-party applicant can be laid down inflexibly. For access to justice is not a cloistered virtue. It is true that the strictest vigilance over abuse of the process of the court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted 'visa'. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty.\n15. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Art. 136 even though the justice of the lis may well justify it. While \"the criminal law should not be used as a weapon in personal vendettas between private individuals\", as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression 'standing' is necessary for Art. 136 to further its mission. There are jurisdictions in which private individuals-not the State alone-may institute criminal proceedings.\n16. The Law Reform Commission (Australia) in its Discussion Paper No. 4 on \"Access to Courts-I Standing: Public Interest Suits\" wrote: The general rule, at the present time, is that anyone may commence proceedings and prosecute in the magistrate's court. The argument for retention of that right arises at either end of the spectrum-the great cases and the frequent petty cases. The great cases are those touching government itself-a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be dependent on government funds; its officers will inevitably have personal links with government. They will be part of the \"establishment\". There may be cases where a decision not to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the courts.\n17. Even the English System, as pointed by the Discussion paper, permits a private citizen to file an indictment. In our view, the narrow limits set, in vintage English law, into the concept of 'person aggrieved' and 'standing' needs liberalisation in our democratic situation. In Dabholkar's case this court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards 'standing' in the famous case of Baker v. Carr. Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierra Sarr N' Jie, spoke thus: ....the words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation.\n18. They do not include, of course, a mere busybody who is interfering in things which do not concern him; Prof. S. A. de Smith takes the same view : All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.\n19. Prof. H.W.R. Wade strikes a similar note : In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers. In Dabholkar's case, one of us wrote in his separate opinion : The possible apprehension that widening legal standing with a public connotation may unloose a food of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system.\n20. This view is echoed by the Australian Law Reforms Commission. The crucial significance of access jurisprudence has been best expressed by Cappelletti: The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights.\n21. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Art.136 is chimerical. Access to Justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action. pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the Writ petitioner and dismiss the petition.\nPATHAK, J\n22. The High Court of Madras in its appellate jurisdiction acquitted the petitioner, Sadhanantham, of charges under s. 302 and s. 148, I.P.C. Arunachalam, a brother of the deceased, petitioned to this Court u/art. 136 of the Constitution for special leave to appeal against the acquittal. The court granted special leave, and ultimately allowed the appeal, Arunachalam v. P.S.R. Sadhanantham, and setting aside the judgment of the High Court restored the conviction and sentence imposed by the trial court under s. 302, I.P.C. The petitioner has filed this writ petition contending that the judgment and order of this Court is a nullity and should be set aside. The principal contention is that Art. 136 did not empower this Court to grant special leave to Arunachalam (the third respondent) and the grant of special leave by the Court and its entertaining the appeal violates Article 21 of the Constitution.\n23. The maintainability of the appeal on the ground that Arunachalam was not entitled to petition under Article 136 of the Constitution for special leave was challenged before the Bench hearing the appeal, but the Bench over-ruled the objection holding that it had ample power u/art. 136 to entertain the special leave petition. The learned Judges laid down that the Court had jurisdiction to entertain appeals against judgments of acquittal by the High Court at the instance of private parties. We have read the judgment of our learned brother V. R. Krishna Iyer, but because of the importance of the question we consider it necessary to set down our own view.\n24. The expense of the appellate jurisdiction of the Supreme Court flows from an entire code of provisions contained in the Constitution. It includes an appeal on certificate by the High Court u/art. 132 that the case involves a substantial question of law as to the interpretation of the Constitution in a civil, criminal or other proceeding disposed of by a judgment, decree or final order of a High Court, and an appeal on certificate u/art. 133 that the case involves a substantial question of law of general importance which calls for decision by the Supreme Court.\n25. In a criminal proceeding, disposed of by a judgment or final order or sentence of a High Court, besides cases where the High Court has convicted the accused and sentenced him to death either on reversing in appeal an order of acquittal by the trial court or on the case being withdrawn from the subordinate court to itself for trial, an appeal lies to the Supreme Court where the High Court \"certifies that the case is fit one for appeal to the Supreme Court\". Art. 135 confers jurisdiction and power on the Supreme Court with respect to any matter to which art. 133 or art. 134 does not apply if such jurisdiction and power were exercisable by the Federal Court immediately before the commencement of the Constitution. art. 136 declares: \"136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.\" Then follow other provisions to which we need not refer.\n26. Plainly, the jurisdiction conferred by Article 136 seeks to confer on this Court the widest conceivable range of judicial power, making it perhaps among the most powerful courts in the world. The judicial power reaches out to every judgment, decree, determination, sentence or order effecting the rights and obligations of persons in civil matters, of life and liberty in criminal matters as well as matters touching the Revenues of the State. It is an attempt to ensure that the foundations of the Indian Republic, which have been laid on the bed-rock of justice, are not undermined by injustice anywhere in the land; Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. As the Court observed in Durga Shankar Mehta v. Thakur Raghuraj Singh and Others 1954 Indlaw SC 134. Art. 136 vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals by grant of special leave.\n27. Nonetheless, there is a limitation which, in our opinion, is of immediate relevance. It is a limitation inbuilt into the jurisdiction of the Court and flows from the nature and character of the case intended to be brought before the Court. It is a limitation which requires compliance despite the apparent plenitude of power vested in the Court. When a petition is presented to the Court under art. 136, the Court will have due regard to the nature and character of the cause sought to be brought before it when entertaining and disposing of the petition. The question is Does the brother of a deceased person, who has been murdered, possess the right to petition under art. 136 of the Constitution for special leave to appeal against an acquittal of the accused ? It is a question which touches directly on the nature of a crime and of a criminal proceeding.\n28. Several different definitions of a crime have been attempted (and there are some jurists who say that it is impossible of definition), but there is broad agreement on one attribute of its nature, that it is an illegal act which amounts to a wrong against the public welfare. Mogul Steamship Co. v. Cm Greger Gew & Co. As a concept, crime has been defined as \"any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as endangering its safety, stability or comfort,\" which \"it usually regards as especially heinous and seeks to repress with corresponding severity; if possible it secured that the forces which the sovereign power in the State can command shall be utilised to prevent the mischief or to punish anyone who is guilty of it.\" Crimes were defined by Blackstone as \"the breach and violation of public rights and duties which affect the whole community.\"\n29. A crime, therefore, is an act deemed by law to be harmful to society in general even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim's family. Those who commit such acts are proceeded against by the State in order that, if convicted, they may be punished. The notion of crime as a threat to the whole community, is the material counterpart of the formal rule that the State alone is master of a criminal prosecution. In a criminal proceeding the State stands forward as prosecutor on public grounds. No private person has a direct interest in a criminal proceeding, although exception may be made by the statute in certain cases. It is common knowledge that a criminal prosecution is not intended for the private satisfaction of a personal vendetta or revenge. In India also, the criminal law envisages the State as the prosecutor.\n30. Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a complaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1898 the State was entitled to appeal to the High Court, and the complainant could do so only if granted special leave to appeal by the High Court. The right of appeal was not given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the State has now been made subject to leave being granted to the State by the High Court. The complainant continues to be subject to the pre-requisite condition that he must obtain special leave to appeal.\n31. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. The Law Commission of India gave anxious thought to this matter, and while noting that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the complainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the common law jurisprudence obtaining in England and other countries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law.\n32. But simultaneously the Law Commission also noted that if the right to appeal against acquittal was retained and extended to a complainant the law should logically cover also cases not instituted on complaint. It observed: \"Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, that limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved person.\"\n33. However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, confined the right to appeal, in the case of private parties to a complainant. This is, as it were, a material indication of the policy of the law. Having regard to the fundamental nature of a criminal proceeding to which reference has been made, it is now appropriate to examine the considerations which the Court should keep in mind when entertaining a petition for special leave to appeal by a private party against an order of acquittal. From what has been said, it is plain that 'access to the jurisdiction under Article 136 cannot be permitted to a private party who seeks to employ the judicial process for the satisfaction of private revenge or personal vendetta.\n34. Nor can it be permitted as an instrument of coercion where a civil action would lie. In every case, the Court is bound to consider what is the interest which brings the petitioner to court and whether the interest of the public community will benefit by the grant of special leave. 'In a jurisprudence which elevates the right to life and liberty to a fundamental priority, it is incumbent upon the court to closely scrutinise the motives and urges of those who seek to employ its process against the life or liberty of another.' In this enquiry, the Court would perhaps prefer to be satisfied whether or not the State has good reason for not coming forward itself to petition for special leave. We think that the Court should entertain a special leave petition filed by a private party, other than the complainant, in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning for special leave for reasons which do not bear on the public interest but are prompted by private influence want of bona fide and other extraneous considerations.\n35. We would restrict accordingly the right of a private party, other than the complainant, to petition for special leave against an order of acquittal. It is perhaps desirable to keep in mind that what follows from the grant of special leave is an appeal, and the jurisdiction must, therefore, be invoked by a petitioner possessing a locus standi recognised in law. In regard to the question whether the procedure followed by this Court in disposing of a petition for special leave under Article 136 is consistent with the procedure contemplated by Article 21, we have no hesitation in holding that the principle is inbuilt within the terms of Article 136 itself that the Court in exercising its jurisdiction will do so as a court of law following the well-known norms of procedure which have been recognised for long as governing and informing the proceedings of all courts. We have no hesitation in holding that Article 21 is not violated. The petitioner has failed to establish that there is a case for interfering with the judgment of this Court allowing the appeal. The writ petition is dismissed, but in the circumstances there is no order as to costs.\nPetition dismissed.\n"}
+{"id": "JLQ6xVJGyO", "title": "", "text": "Mushtak Hussein v State of Bombay\nSupreme Court of India\n\n30 March 1953\nCriminal Appeal No.96 of\n1952\nThe Judgment was delivered by : Mehr Chand Mahajan, J.\n1. The appellant on 28th July, 1951, was convicted on a charge under section 366, Indian Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourse and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of live. The jury returned a verdict of guilty by a majority of three to two. The Sessions Judge came to the conclusion that the verdict was not perverse. He therefore accepted it. The appellant preferred an appeal to the High Court but this was summarily dismissed. This appeal is before us by special leave.\n2. The prosecution case was that on the 12th December, 1949, the appellant who was a. music teacher went to the house of Shilavati and on the pretext that there was a girl waiting in his house and that he' wanted to compare the voice of Shilavati with the voice of the girl took her to his house, and with the assistance of one Iqbal Putlabai (accused 2) kidnapped her. Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant.\n3. To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye-witnesses, viz., Prahlad, Jamunabai, Namdeo and Shilavati. Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister-in-law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to compare her voice with that of one Prabha who was waiting in his house and thereafter Shilavati had not come back, that on getting this information she along with her brothers and sister-in-law went to the house of the appellant and questioned him as to why Shilavati was not sent back, whereupon the appellant replied that he had sent her by bus. As Shilavati did not return home, she went to the police and lodged a complaint. Ananda, uncle of the girl, deposed to the same effect. Prahlad, brother of Shilavati, a boy of school-going age, deposed that he saw Shilavati going with the appellant while he was playing outside the school. Namdeo, who is a bricklayer, stated that on the 12th December while he was returning after completing his work at about 3-30 p. m. he saw Shilavati going with the appellant. On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that 'she was pregnant. Shilavati was examined as P, W, 10 and she deposed that the accused came to her house at about 3-30 p.m. and told her that there was a singing party at Kirkee and that she should accompany him there, that she went with him on the promise that the appellant would send her back before her mother returned home, that while at the appellant's house she was asked to smell certain scents and she felt giddy and could not speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion. She further said that on enquiry from one Kassam she was told that the appellant had left her there.\n4. On the 12th December at about 11-40 p.m. Yamunabai went to Padamji Gate police station and lodged a complaint there. In the complaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had not returned. The police were asked to find out her whereabouts. On the 13th she sent a complaint to the Police Inspector, A Division, Poona. Therein she made the allegation that the appellant used to come to her house for coaching Shilavati in harmonium, that she learnt that he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavati's whereabouts he had given evasive answers. The police head- constable who was on duty on receipt of this complaint examined Yamunabai. He read out the application to her and recorded her statement which reads thus:\" My daughter Shilavati age about 13/14 has left my house at 4 p.m. I made search for my daughter at the house of my paternal aunt, but I could not find her there. M. H. Gyani (appellant) used to come to my house for coaching up my daughter in singing. I do not know whether he has taken away my daughter nor have I seen him taking her away. I have mentioned his name in my application through mistake. My daughter has gone out of my house to some other place. A search should therefore be made for her  I again state that my daughter left the house after quarrelling with my mother Harnabai. This is given in writing.\n5. In July, 1950, Yamunabai sent an application to the Collector of Poona. In this application she said that she had appointed the appellant as a. music master for her daughter, that on Monday the 12th December, 1949, at about 6 p. m. the appellant and his friend Badsha had induced and kidnapped her to an unknown place. She asserted therein that she was sure that nobody but both M. H. Gyani and Badsha had kidnapped her daughter. In the witness box Yamuna Bai, as already stated, gave a different story and Shilavati herself did not fully support the version of her mother. On the 14th March, 1950, a letter, Exhibit 4-G, was sent by Shilavati to her mother. The relevant part of this letter is in these terms:\" Since last so many days, I have left the house and I have not sent any letter to you and you must also be worrying as to where I have gone. I am at Bombay and quite well too. Do not worry about me, I had gone to the river at Bamburda, and there some one forced me and brought me to Bombay and he was prepared to marry with me. He was an ordinary and old fellow. J did not like it and he was going to convert me ' to Mahomedanism. I felt very sorry for this and I was very much sad. He beat me twice or thrice. To whom shall I express my sorrow ? But there was a boy staying, there whom I told all the facts and told him to save me anyhow. He promised to save me. There were two days remaining for my marriage. Till then, he arranged for my stay and also for dinner, and one day before the marriage, previous night he took me out from that place. There were many police complaints against him, and he, at the cost of his life, saved me. I married him in order to return his obligations. Now I am very happy, I am not in need of anything now. He is an ordinary boy. He works in a press, and he is a worker. He is from us and his name is Baburao Konde and next  time we will send a photograph of both of us. Do not worry about me. I am very happy. Namaskar to all, elderly persons and ashirwadas to youngsters. Namaskar to grandmother Harnabai. Convey namaskars to Anand mama, Vithal mama, Ram mama, Shankar, Prahlad, Laxman, Hirabai, Jamnabai, Yamunabai, Jaibai, and to master Shilavati is admittedly a talented Harijan girl who used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration. The letter written by her from Bombay speaks for itself and it was on receipt of this letter and further correspondence to which it is not necessary to refer that the police got clue of her where abouts and were able to restore her to her mother Yamunabai.\n6. The statute law in India in certain circumstances permits an appeal against a jury's verdict and authorizes the appellate court to substitute its own verdict on its own consideration of the evidence. It has conferred on the appellate court extensive powers of overruling or modifying the verdict of a jury in the interests of due administration of justice confident that the appellate judges who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. S. 423 in sub-section (2), Criminal Procedure Code, states as follows:\" Nothing herein contained shall authorize the court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the judge or to a misunderstanding on the part of the jury of the law as laid down by him.\n7. S. 537 in sub-cl. (d) provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal on account of any misdirection in any charge to the jury unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Unless therefore it is established in a case that there has been a serious misdirection by the judge in charging. the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside. The learned counsel for the appellant contended that the judge in his charge to the jury misdirected it in several important particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was said that he failed to warn the jury that it would be unsafe for it to act on the statement of Shilavati without her statement being corroborated by other evidence, in material particulars. The judge, according to the learned counsel, should have told the jury that though in law it was open to them if in the circumstances of this case they thought fit to do, to act on the uncorroborated testimony of Shilavati but that ordinarily it was not safe to do so without that statement being corroborated in material particulars. This omission on the part, of the judge, it was urged, amounted in law to a grave misdirection and the jury in all likelihood without such a warning arrived at its verdict on the basis of the uncorroborated evidence of the girl. That part of the charge in which reference was made by the judge to Shilavati's evidence wherein she had said that she was told by Kassam Khan that the appellant had left her there was criticized on the ground that the jury bad been directed to act on inadmissible evidence. Then it was contended that it was a serious misdirection to direct the jury that it had to solve the jigsaw puzzle that had arisen in the case by using their own ingenuity and by piecing together the various pieces of the puzzle. The last misdirection relied upon concerned the following part of the charge:-\n\"After weighing the probabilities of the case, the evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence, then in that case you have to return a verdict of not guilty.\"\n8. In our judgment, it is not necessary to pronounce on all the points urged by the learned counsel, because we are of the opinion that the judge clearly misdirected the jury when he asked it to solve the problem that had arisen by exercising its ingenuity and by resorting, if necessary, to speculative reasoning. In other words, the judge gave the jury a carte blanche to, come to its conclusion on the basis of its own conjectures, if necessary. Not only that. He told the jury to hold the accused not guilty in case it found it improbable that he must not have committed the offence. These propositions placed before the jury are repugnant to all notions of criminal jurisprudence and they must necessarily have affected its mind in arriving at the conclusion. This is how the charge on this point reads:\" So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one. I would like also to bring to your notice the letter written at the instance of Shilavati from Bombay. That letter is Exhibit 4-G. Shilavati in her examination before the court does not admit that this letter was written at her instance.\n9. However, she has admitted before the police that this letter was written at her instance, and this was brought out in her cross-examination. In this letter she had stated that she had gone on that day to Bamburda river and there she was forcibly kidnapped by some man who was about to marry her. That man was an old man and she did not approve that marriage. Fortunately, this Konde came to her rescue and took her to Bombay and married her. That is her statement. Now, gentlemen, this is a jigsaw puzzle kept before you. In jigsaw puzzles all the pieces are kept before us and we have to use our ingenuity and piece them together. Some links are missing in this case. However, as rightly submitted by the learned Assistant Public Prosecutor, in such cases you have to weigh the probabilities of the case and therefore you have to find out from the material before us whether you can solve this jigsaw puzzle. Now these points are before you that there was a quarrel with Shantabai. The chit was alleged to have been sent by accused No. 1, and then the girl went to Bamburda river and there she was kidnapped by somebody. Now, gentlemen, you have to consider whether it is or it is not possible that the girl Shilavati might have received soma chit probably from the accused No. 1. This chit was seen by Shantabai who exposed to Harnabai the grandmother of the girl. The witness Harnabai is an old woman and probably she was put out and ;he might have taken her to task, and she might have even gone to the length of stating that she should go out of the house. Here is a young girl having hot blood, and it is or is it not probable that the girl in desperation had gone to Bamburda, and she mentions the river, and gentlemen, you can find that there is a confluence of the rivers Mula and Mutha; why did she go to the river ? Whether it is probable that she wanted to commit suicide. You will find, gentlemen, that near that confluence there is a mosque and in the evidence it has come out that the girl was found at the hut at Sion with an old Mahommedan named Kassam Khan and his keep. You have to consider whether it is probable that this Kassam Khan and his keep induced the girl to go with them to Bombay and whether Kassam Khan wanted to marry her there. You have to find out whether it is probable that this chivalrous man Konde rescued her from the old man Kassam Khan who was about to marry her and got himself married to the girl. The fact remains that the girl was found with Konde in Bombay ultimately. It is in evidence of the girl herself that she found herself in a hut at Sion and Kassam Khan and his keep were keeping a watch over her  So, gentlemen, you Will have to find out all the probabilities of the case and before us by the prosecution.\n10. Had the charge to the jury stopped with the sentence, \"So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one\", no exception could possibly have been taken to it. When the learned judge however, proceeded to direct the jury to piece together the various pieces of the jigsaw puzzle by use of their ingenuity he clearly misdirected them inasmuch as he told them that they could in' solving the problem draw upon their own imagination and exercise their ingenuity in the matter without reference to the evidence that had been placed by the prosecution on the record. Not only that, the learned judge himself indulged in speculation and placed a number of conjectures before the jury for its consideration. The learned judge surmised that the girl might well have gone to the river for committing suicide and asked the jury to consider this surmise as well. It was further surmised that a chit from the accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the grandmother, who in all likelihood took her to task and told her to get out of the house and thereupon the hot-blooded Shilavati went to the river to commit suicide. There is no evidence whatsoever on the record about the actual receipt of that chit, of Shantabai seeing it and exposing this fact to Harnabai and of Harnabai threatening Shilavati. All these considerations mentioned to the jury were the results of the judge's fertile imagination and were bound to mislead it into the belief that they could indulge in like conjectures and surmises in their effort to solve the puzzle. The direction to the jury that it was to solve the jigsaw puzzle by use of its ingenuity does not find place in an isolated passage of the charge, but runs through it. While winding up the learned judge again reiterated it and Said:-\n\"As I have already told you, you have to piece together all the pieces of the jigsaw puzzle and try to., find out what story appears to you to be probable; whether the girl was drugged at all, or whether as stated by her in her letter she went to a river at Bamburda and there she met this Kassam Khan and his keep and along with them she went to Bombay of her own accord.\"\nIn the concluding part of the charge the learned judge said:-\n\"After weighing the probabilities of the case, evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence, then in that case you have to return a verdict of not guilty.\"\n11. It is not possible say that these words were likely to give a correct lead to the jury in reaching its conclusion. All that the jury should have been told was that after weighing the probabilities of the case and the evidence on the record, as prudent men they should answer \"whether the prosecution had made out the charge against the accused.\" We are satisfied that as a result of These misdirection's the jury in all likelihood gave a divided verdict of guilty by three to two not on evidence but on the basis of assumptions and conjectures.\n12. In this situation, the question for consideration is what procedure should be followed by this court for undoing the mischief that has happened and which would be most conducive to the ends of justice. The simplest course open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should consider the merits of the case in the light of our decision and say whether there has been a failure of justice as a result of these misdirection's. Lastly it is open to us to examine the merits of the case and decide for ourselves whether there has been a failure of justice in the case and an innocent man has been convicted.\n13. It is now well settled that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the court is entitled to take the whole case into consideration. Vide Abdul Rahim v. Emperor A.I.R. 1946 P.C. 821 1946 Indlaw PC 13. The words \"in fact\" in s. 637 (d), Criminal Procedure Code, emphasize the view that the court is entitled to go into the evidence itself in order to determine whether there has been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt the third course, because at this moment of time it is most conducive to the ends of justice. It seems plain to us that on the material on this record no reasonable body of persons could possibly have arrived at the conclusion that the appellant kidnapped Shilavati as alleged by the prosecution. We have taken upon ourselves the responsibility of deciding this case without the valuable opinion of the High Court because we feel satisfied that any other course would cause unnecessary harassment to the appellant. With great respect we are, however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them. In cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised. Without the opinion of the High Court on such points in special leave petitions u/art. 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion.\n14. The, learned Solicitor-General contended that this was not a fit case where the court was justified in going behind the verdict of the jury and in deciding the case in accordance with its own view of the evidence. It was argued that the charge to the jury had to be taken as a whole, that though some slight exception might be taken to certain passages in the charge the learned judge had placed the case of both sides fairly before the jury and that not only did the learned judge place fairly the case of both sides before the jury, he indicated his opinion on the evidence strongly against the prosecution and that being so, the accused could not be allowed to say that the charge which was strongly in his favour and against the prosecution was defective in law. It was said that it was open to the jury to accept the statement of the mother of the girl as well as the statement of the girl in spite of the different conflicting versions mentioned in the charge and that the jury having done so, the matter stood concluded.\n15. As already observed, charge to the jury cannot be said to be a fair charge if it tells the jury to approach the decision of the matter from a wrong angle, and directs it to reach its decision by exercise of its own ingenuity and by having recourse to conjectures and speculative reasoning. This convention of the learned Solicitor-General therefore cannot be seriously considered.\n16. That the verdict of the jury was erroneous in that it could not be the verdict of any body of reasonable men in the circumstances of this case is fully established by the facts and circumstances on the record. What Yamunabai deposed in court has been set out in the earlier part of this judgment. Her case now is that when she returned home on the 12th December, 1949, at about 6-30 p.m., she found that Shilavati was not in the house, she made enquiries from Jamna and Hira, she was told that accused 1 came and told them that there was a girl in his house and her voice was to be compared with Shilavati's voice and took her away on that pretext. Prahlad, P.W. 4, deposed that when his mother returned home at 6 p.m. he told her that Shilavati had been seen by him in the company of accused 1. Jamnabai, P.W. 5, stated that the accused came to the house at 3 p.m. and on the pretext that one girl had come to his house for singing he took Shilavati and that when Yamunabai returned she informed her of what had happened. Ananda, P.W. 6, repeated the same story. This story stands completely demolished by the different complaints that Yamunabai made to the police. There is no satisfactory explanation whatsoever why when she made her first report to the police at 11-40 p.m. she did not tell the police that she had been told by her son, by Jamuna and by Namdev that the girl had been taken away by the appellant and that he had told them that she had been sent back in a bus. Not only this, after she had sent a written complaint on the 13th December to the Police Inspector, Poona, suspecting the appellant of having kidnapped her daughter, she made a statement to the head-constable, withdrawing that allegation in most unambiguous terms and stated that the girl had left the house after quarrelling with Harnabai. In the first report to the police she had said that the girl had left after quarrelling with one Shantabai. These statements made by her could not be said to be the result of mere figments of her brain. She must have made them on some basis. They give the lie direct to her present version. When later on she sent an application to the Collector accusing the appellant and Badsha of having kidnapped her daughter she. asserted that they had taken her away to an unknown.place at 6 p. m., though the occurrence in then earlier complaints was alleged to have taken place at about 3-30 p. m. The letter of 14th March, 1960, written at the instance of Shilavati to Yamunabai falsifies all the versions given by her and clearly suggests that the girl left the house of her own accord. In this letter she sent her regards to the appellant.\n17. If he had kidnapped, her, that expression of respect would not have found place in that letter at all Another version was mentioned in the evidence as to how the occurrence took place. It was stated that the girl received a chit from the appellant and. on the basis of this chit a quarrel ensued and the girl left the house. On this state of the record it is quite evident that the version now given by Yamunabai to court or by Shilavati after she had come under the influence of her mother cannot be accepted. It seems that the appellant because he was a music master and had been giving lessons to the girl a few months before her disappearance has been convicted on a charge under section 366, Indian Penal Code,' not on the basis of evidence but on the basis of surmises and, conjectures. The learned Solicitor-General referred us to the statement of the bricklayer and of the boy Prahlad. A mere reading of their statements shows that these are not true and have been procured to fill in gaps in the prosecution case. Harnabai was not produced as a witness in the case and the learned judge in his charge to the jury was right when he observed that a number of links were missing in the prosecution case and they could only be filled in on the basis of conjectures. Both Yamunabai and Prahlad studiously avoided stating that the girl took part in dramas or that she danced in public places. They tried to make out that Shilavati was an unsophisticated girl having no knowledge of the world and that she never danced in public places or she never acted in public dramas. There is ample material on the record consisting of her photos in the advertisements as well as in the statements made to the police which establishes that she acted in various dramas for which she was paid at the rate of Rs. 5 for each performance and that she gave, dance performances and she was intending to make singing and dancing as her profession.\n18. The very fact that the brother and the mother were at pains to create a false impression on the court by deposing falsely was itself sufficient to show that no reliance could be placed on their testimony. We are therefore firmly of the opinion that there has been a grave failure of justice in this case and the appellant, an innocent man, has been convicted of a serious offence on a verdict of the jury arrived at in all likelihood on the basis of conjectures and that that verdict was the. Consequence of the misdirection given to the jury by the judge.\n19. For the reasons given above we allow this appeal, set aside the verdict of the jury, and acquit the appellant of the offence with which he was charged.\n"}
+{"id": "UMVmI5BRh8", "title": "", "text": "Chittaranjan Das v State of West Bengal\nSupreme Court of India\n\n22 April 1963\nCriminal Appeal No. 165 of 1960. Appeal from the judgment and order dated July 22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960\nThe Judgment was delivered by: P. B. Gajendragadkar, J.\n1. The appellant Chittaranjan Das was charged with having committed an offence punishable u/s. 376 I.P.C. This charge was framed against him on three counts. It was alleged that between November 18, 1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie committed rape on Sandhyarani Das Gupta alias Nirmala.\nThe second count was that he committed the same offence at the same place and in respect of the same girl between December 1, 1958 and December 6, 1958 ; and the third count related to the commission of the said offence between December 9, 1958 and December 15, 1958 at the same place and in respect of the same girl. Along with the appellant, Ganesh De was charged with having abetted the appellant in the commission of the said offence, the charge framed against Ganesh De being u/s. 376 read with s. 109 of the Indian Penal Code. The learned Presidency Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons. Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate committed them to the Sessions on May 4, 1960.\n2. The case of the appellant and his co accused was then tried by the City Sessions Court at Calcutta with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three counts. A similar verdict was brought by the jury in respect of the co accused Ganesh De. The learned Sessions judge took the view that the verdict of the jury was not perverse, and so, he decided to accept the said verdict and accordingly convicted the appellant under s. 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge. No separate sentence was awarded in respect of the other charges. Ganesh De was also sentenced to a similar period of imprisonment. This order was passed on July 9, 1960.\nThe appellant challenged the correctness of the order of conviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court. A Division Bench of the said High Court did not feel impressed by the points made on appellant's behalf, and so, his appeal was summarily dismissed on July 22, 1960. The appellant then applied for a certificate u/art. 134 (1) (c) of the Constitution.\nThis application was allowed by Labiri C.J. and Bose J. on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law, and so' _they granted him a certificate under the said Article. It is with this certificate that the appellant has come to this Court.\n3. Before dealing with the points which fall to be considered in the present appeal, it is necessary to state briefly the material facts leading to the prosecution of the appellant. Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the Refugee Colony at Ghola. It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house 'at Ashutosh Mukherjee Road, Bhowanipur some time in the first week of November 1958. Manibala induced Sandhya to go to her place with a promise that she would secure a nurse's job for her. The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and, according to the prosecution, the co accused Ganesh De was a Peon in the said office. The prosecution alleged that in course of time, Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment. When Sandhya met the appellant, the appellant held out the hope of a job for her and he managed to ravish her. Similarly, Sandhya was taken to the house of the appellant on two or three occasions within a period of one month and each time the appellant had sexual intercourse with her. Every time this happened the appellant promised that he would provide Sandhya with a job.\n4. The prosecution case is that as a result of this sexual intercourse, Sandhya conceived and the appellant was anxious to cause her abortion. In accordance with the plan, Mani bala attempted to cause her abortion but did not succeed, and so, the girl was taken to the Chittaranjan Sevasadan on February 11, 1959 where the abortion was completed. Some time, thereafter, she was sent back to her own house on her insistance.\nIt appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him. This happened on two or three occasions again. At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli. This young man had approached the appellant for a job. The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage. Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife. Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph. This time again Sandhya was ravished by the appellant. That, in broad outlines, is the prosecution case against the appellant. On June 6, 1959, Sandhya's mother filed a complaint that her daughter had disappeared. This complaint was investigated by the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from the house of Ganesh De on June 10, 1959. She was then taken to the Tollygunge Police Station where her statement was recorded. It, however, appeared that the offence which on Sandhya's statement seemed to have been committed by the appellant was within the jurisdiction of the Amherst Street Police Station, and so, the case papers were transferred to the said Police Station. Sandhya's statement was again recorded at this Police Station on June 12, 1959. As a result of the statement, Challan was forwarded which specified November 14, 1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had raped Sadhya. Subsequently, the appellant was arrested and he along with the co accused was charged before the Court of the Presidency Magistrate as we have already mentioned. In 'granting certificate to the appellant, the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance. In fact, it has observed that the scheme of s. 222 of the Criminal Procedure Code seems to suggest that the charge framed in the present case con ravened the requirement of s. 222 (1), and was therefore, invalid.\n5. The High Court also appears to have thought that this contention received support from a decision of the Calcutta High Court in Ali Hyder v. Emperor,, (1939) 40 Cr. L. J. 280 1938 Indlaw CAL 95. It is, therefore, necessary to examine this argument at the outset. We have already set out the 3 counts of the charge framed against the appellant and we have noticed that in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya. The first period was between 18.11.1958 to 21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.1958. The argument is that s. 222 (1) Cr. P.C. requires that the charge must specify, inter alia, the particulars as to the time when the offence was committed, and this means that the precise date on which and the time at which the offence was committed must be stated in the charge. Before dealing with this argument, it is necessary to read s. 22 :\n\"(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.\n(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of s. 234 :\nProvided that the time included between the first and last of such dates shall not exceed one year.\"\n6. The appellant's contention is that it is only in cases under s. 222 (2) where the prosecution is not required to specify the precise date and time at which the offence is committed ; and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which they said subsection applies that liberty may be claimed by the prosecution not to mention the date and time of the offence. In all other cases to which s. 222 (1) applies, particulars as to the time and place of the alleged offence must be specifically mentioned. In our opinion, this contention is not well founded. In fact, Mr. Chari who appeared for the appellant himself fairly conceded that in almost every charge to which s. 222 (1) applies, it is usual to state that the particular offence was committed on or about a certain date. In other words, it is not suggested by Mr. Chari that the specific date and the specific time must necessarily be stated in the charge in every case. If it is permissible to say in a charge that a particular offence was committed on or about a specified date, without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed s. 222 (1) has been contravened. It is true that subs. (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed.\nIt is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been committed, it 'would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of s. 222 (1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and that validity of the charge must in each case be determined' by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged ? It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal courts naturally take the precaution of framing charges with sufficient precision and particularity in order to ensure a fair trial ; but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify The particular date and time at which any offence is alleged to have been committed. In this connection, it may be relevant to bear in mind that the .requirements of procedure are generally intended to sub serve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves ; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by ss. 535 and 537 Cr. P. C.\nTake, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence. In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body. In cases of circumstantial evidence of this character, it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was committed. All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been committed. That means the precision of the charge in respect of the date on which the offence is alleged to have been committed will depend upon the nature of the information available to the prosecution in a given case. Where it is possible to specify precisely the necessary particulars required by's. 222 (1), the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge.\n7. In this connection, it may be useful to refer to the facts in the present case. The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the country, and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the course of earning money by selling her body. In such a case, if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time, it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her. If it is insisted that in a case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was committed by him, it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would, in the ordinary course of things, not be able to state precisely the dates on which she was made to submit to the appellant.\nTherefore, in dealing with the question as to whether the charge framed in a criminal trial has contravened s. 222 (1), the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the Court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused. That, in our opinion, is the reasonable course to adopt in dealing with contentions like the one raised by the appellant before us. The question of prejudice did not impress the High Court, because it has summarily dismissed the appeal. It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court. In this connection we ought to add that the decision in the case of Ali Hider, (1939) 40 Cr. L .T. 280. to which the High Court has referred in granting a certificate on this point does not support the contention in question.\n8. The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal, and in coming to the conclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein v. The State of Bombay,, A I.R. 1953 S.C. 282 1953 Indlaw SC 10. and Shreekantiah Ramayya Municipalli v. State of Bombay, A. I. R. 1955 S. C. 287 1954 Indlaw SC 175In Mushtak Hussein's case, this Court has no doubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require consideration. It was also added that in cafes which prima facie raise no arguable issue, that course is, of course, justified. It is in the light of this conclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised.\nIn the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment, one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench. It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein, A I.R. 1953 S.C. 282. 1953 Indlaw SC 10 that summary rejections of appeals which raise issues of substance and importance are to be disapproved.\n9. With respect, there can be no doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that no High Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law. In this connection, it is, however, necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to consider whether it raises any arguable or substantial question of fact or law, or not. S. 421 (1) of the Code provides that on receiving the petition and copy under s. 419 or s. 420., the appellate court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. The proviso to this section requires that no appeal presented under s. 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Subs. (2) empowers the appellate court to call for the record of the case before dismissing the appeal under subs. (1) but it does not make it obligatory on the court to do so.\nTherefore, the position under s. 421 is clear and unambiguous. When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question; if it is so satisfied, the appeal should be admitted; if, on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct, it can summarily dismiss the appeal. It is necessary to emphasis that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied its mind to all the points raised by the appellant. Summary dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because in its opinion, the 'decision appealed against is right. Therefore, we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court. If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it. .\n10. The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury. It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did not correspond to the dates given by Sandhya in her evidence, the learned Judge told the jury that if the statement of the girl in her cross examination is taken as the basis, the dates on which the girl was ravished by the appellant would not be covered by the three sets of dates mentioned in the charge, and then he added that \"in case you hold that the charges are in order, in that case you shall proceed to consider the evidence.\" It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement constituted a misdirection. The argument was that whether or not a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision; inasmuch as he left that question to the jury, he failed to exercise his jurisdiction and to discharge his duty, and as such the charge must be held to suffer from a serious misdirection. This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr. Chari. In our opinion, there is no substance in this argument. We should have stated earlier that after the committal order was passed by the presidency Magistrate, the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed.\nThe High Court rejected this contention and held that the charge was valid within the meaning of s. 222 and s. 234 of the Cole. Therefore, the true position is that at the time when the learned Sessions judge delivered his charge to the jury, the question about the validity of the charge had been considered by the High Court and so far as the learned Sessions Judge was concerned, the finding of the High Court was binding on him, so that when they learned Sessions judge told the jury that they may consider whether the charges were in order, he was really leaving it open to the jury to consider the matter which had been decided against the appellant and in favour of the prosecution. If there can be any grievance against this part of the charge, it would be in the side of the prosecution and not on the side of the appellant.\nThat leaves to be considered certain other alleged misdirection's to which Mr. Chari has referred. Mr. Char; contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned judge did not cell the jury that in view of the contradictions brought out in the evidence of Sandhya and in view of her past career and record, her evidence should not be believed. Mr. Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the prosecutrix must appear to the court to be a reliable witness. If the prosecutrix does not appear to be a reliable witness, or if her evidence suffers from serious infirmities, corroborations in some particulars would not help the prosecution, and according to Mr. Chari, this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions judge. We do not think there is any substance in this contention.\n11. We have carefully read the charge and we are satisfied that on the whole, the charge has not only been fair, but has. been more in favour of the appellant than in favour of the prosecution. In fact, the whole tone of the charge indicates that the learned Sessions judge was not satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt. But in delivering charge to the jury, the learned Sessions judge can never usurp the function of the jury. He cannot pronounce on the reliability or otherwise of any witness. The requirement as to corroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury. He told them that the most important witness in the case was Sandhya and that there was hardly any corroborative evidence to her story. He also warned them that though it was not illegal to act upon the evidence of a prosecutrix, it was unsafe to adopt that course and he said that before convicting the appellant on the uncorroborated testimony of Sandhya, the members of the jury should ask themselves whether they were so much convinced about the truthfulness of the girl as to accept her evidence in its entirety. He referred to the broad and material contradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or not. Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr. Chari's grievance that the charge was materially defective in this matter.\n12. The next misdirection or) which Mr. Chari has relied is in regard to the prosecution evidence about the age of the girl. The prosecution alleged that the girl was below If) years of age, whereas the defence contended that she was above 16 and was a consenting party. As usual, evidence was given by the prosecution in support of its case as to the girl's age. This evidence consisted of the testimony of the girl's mother Saudamini and of Dr. Nag as well as Dr. Saha. Having summarised the material evidence fairly and accurately, the learned judge told the jury that the said evidence was no doubt somewhat conflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below 16. Mr. Chari contends that at this stage, the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant. We do not think there is any substance in this argument. In the first part of his charge, the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under s. 376, and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16. 'That being so, we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice or the appellant.\n13. The last misdirection on which Mr. Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court. It appears that on behalf of the appellant the evidence given by the girl on a previous occasion had been brought out under s.145 of the Indian Evidence Act. In that statement the girl had sworn that Anil Chattered had sexual relations with her day after day and that she had sexual relations with others also. The girl admitted in her cross examination that her statement had been recorded on a previous occasion by the Magistrate, Alipore, but when the contents of the statement were put to her, she said she did not remember whether she had made those statements or not. Now, it is clear that when a previous statement is put to a witness in cross examination under s.145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence he gives at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial. That is the true legal position and no grievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge. Therefore, we do not think that the grievance made by Mr. Chari that the charge suffered from serious misdirections is well founded.\nThere is one more point which we may mention before we part with this appeal. After the verdict was returned by the jury, the learned Sessions Judge considered the question as to whether he should accept the said verdict, or should make a reference. In that connection, he observed that the verdict that the jury had returned against the appellant, was practically based on the uncorroborated testimony of the pro secutrix but he thought that the said course adopted by the jury cannot be said to be illegal and he was not prepared to take the view that the verdict of the jury was in any way perverse.\n14. Mr. Chari contends that having regard to the general tone of the charge delivered by the learned judge to the jury, the learned judge should have treated the verdict as perverse and not acted upon it. We do not think that this contention can be accepted. In his charge, the learned judge no doubt indicated that the evidence of the girl was not satisfactory, that it was not corroborated and that there were other circumstances which showed that the prosecution case might be improbable, but having done his duty, the learned judge had to leave it to the jury to consider whether the prosecution had established its charge against the appellant beyond reasonable doubt or not. The jury apparently considered the matter for an hour and half and returned the unanimous verdict of guilty. In the circumstances of this case, we cannot accede to Mr. Chari's argument that the Session Judge was required by law to treat the said verdict as perverse. In a jury trial where questions of fact are left to the verdict of the jury, sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge, but that itself can be no justification for characterising the verdict as perverse.\n15. In the result, the appeal fails and is dismissed, the appellant to surrender to his bail bond.\nAppeal dismissed.\n"}
+{"id": "B19sMLT6mn", "title": "", "text": "Sakharam v State of Maharashtra\nSupreme Court of India\n\n22 April 1969\nCr.A. No. 258 of 1968.\nThe Judgment was delivered by: BHARGAVA, J.\n1.  This appeal, by special leave, is directed against a judgment to the High Court of Bombay, Nagpur Bench, summarily dismissing an appeal filed by the appellant Sakharam against his conviction and sentence of 5 years' rigorous imprisonment and 3 months R. I. for offences punishable u/ss. 307 and 148 of the Indian Penal Code respectively awarded to him in a Sessions trial by the Sessions Judge of Yeotmal. With this appellant were arrays four other person who were convicted for an offence under Section 147, I.P.C., only and sentenced to pay a fine of Rs. 100/- each, in default, to suffer rigorous imprisonment for one month.\n2.  The prosecution case, which the Sessions Judge held to be proved, was that, on 5th September, 1967, Shamrao, who was accused No. 2 with the appellant in the Sessions trial, went to the hotel of one Kashinath alias Natha, son of Dayaram, at about noon with a bottle of liquor and demanded glasses for drinking liquor inside the hotel. Kashinath as well as his servant Rangnath refused to comply with his request. Shamrao felt aggrieved, abused both of them, and gave a threat to Kashinath.\n3.  Next day, on 6th September, 1967, in the evening, the appellant, who was accused No. 1, Shamrao and two others went to the hotel of Kashinath's father Dayaram and abused Kashinath in his absence. They also gave threats saying that hey would cut Kashinath to pieces. Later, still in the evening at about 8.30 or 9 p.m., Kashinath happened to be near the State Bank square on Dhamangaon Road in the company of his servant Rangnath and two others person Ramnath and Vishwanath. They were going towards Mahadeo Temple beyond the Post Office. Rangnath was walking ahead, while the other three were behind him at a short distance. The appellant, who was concealing himself in the shadow of a 'neem' tree, suddenly rushed out and with a sharp-edged weapon stabbed Rangnath in the abdomen. Rangnath cried aloud, whereupon his three companions Kashinath, Vishwanath and Ramnath tried to go to his rescue. The appellants then called out to his associates who were armed with sticks and, as a result 10 or 12 persons, including the four other accused who were arrayed with the appellant in the Sessions Trial, arrived and tried to assault the companions of Rangnath. The three companions of Rangnath ran away. Rangnath received a serious injury in the abdomen and his intestinal loops came out of that injury. The appellant and his companions ran away after inflicting this injury on Rangnath. Rangnath walked for a short distance and was then carried by two truck drivers to a hut near the cotton market. One of those drivers Vishwanath Kute informed the police on the telephone that a person was lying injured there. The police arrived with a vehicle, took Rangnath to the Main Hospital at Yeotmal where Rangnath's statement was recorded by the police Sub-Inspector. A case was registered.\n4.  Rangnath's condition was serious and, hence, his dying declaration was recorded by the Taluq Magistrate. He was first examined by Dr. Bhoot and was, later, operated upon by Dr. Gogate. He remained in the hospital until the 4th October, 1967 when he was discharge. The injury received by Rangnath was found by the doctors to be dangerous one which, in their opinion, was sufficient in the ordinary course of nature to cause death. It was only fortunate that Rangnath received immediate treatment and survived.\n5. The Sessions Judge discussed the entire prosecution evidence which was produced before him in support of this case and, believing the evidence given by the prosecution, held that the appellant was clearly guilty of an attempt to commit the murder of Rangnath and that he had also taken part in a riot while he was armed with a dangerous sharp-edged weapon Consequently, he convicted the appellant as mentioned above. When the appellant appealed to the High Court, the High Court dismissed the appeal summarily. This Court granted special leave to appeal to the appellant against this order of the High Court, limited to the question that the High Court was not justified in dismissing the appeal summarily. In these circumstances, the arguments that have been advance before us in this appeal have not been concerned so much with the merits of the conviction of the appellant, but with the question whether it was a fit case where the High Court should not have dismissed the appeal summarily, should have sent for the record, and written a full-reasoned judgment if the High Court was of the opinion that the appeal could not succeed.\n6.  It appears that the High Court adopted the course of dismissing the appeal summarily because, on perusal of the judgment of the Sessions Judge and on hearing arguments advanced before it at the preliminary hearing of the appeal u/s. 421 of the Code of Criminal Procedure, the High Court was of the opinion that the judgment given by the Sessions Judge was clearly right hand did not require any scrutiny with the aid of the record. Learned counsel appearing before us on behalf of the appellant has urged that there were a number of aspects which the High Court should have carefully examined, so that the procedure adopted of dismissing the appeal summarily was not justified. He formulated five points in support of this submission which are as follows :\n(1) There was no motive for the appellant to stab Rangnath;\n(2) The truth of the prosecution case depends upon evidence of eye-witnesses and it was necessary for the High Court to examine the question whether they were got up witnesses and whether their evidence was reliable;\n(3) Apart from the evidence of eye-witnesses, there was no circumstantial evidence supporting the prosecution case, in view of the fact that the weapon alleged to have been used was not recovered and no blood stains were found by the police at the spot where Rangnath was alleged to have been stabbed;\n(4) In any case the appellant could not be convicted for the offence under Section 307, I.P.C.; and\n(5) In any case, the offence committed by the appellant could not fall under Section 148, I.P.C.\n7.  After hearing learned counsel, we are unable to find much substance in any of these points. On the first point, it is true that the prosecution version itself was that the quarrel initially began between Shamrao, an associate of the appellant and Kashinath; but the version given by the prosecution also shows that even Rangnath was also involved in those earlier incidents and that the appellant was taking keen interest on behalf of Shamrao. On the 5th September, 1967, when Shamrao wanted glasses to drink liquor in the hotel, Rangnath had also refused to oblige him just as his master Kashinath had done. On the 6th September, 1967 before this incident of stabbing, the appellant had come in the company of Shamrao and others and had abused Kashinath and had given treats to him. It is true that, at that stage, hen giving the threats, the appellant and his companions did not mention Rangnath but it is clear that their grievance on behalf of Shamrao was against both of them. It is, therefore, not surprising that on 6th September, 1967, when the appellant came to punish those against whom grievance had arisen, he stabbed Rangnath who happened to be in the lead and was the person first available for being injured. Kashinath happened to be walking behind.\n8. The prosecution evidence shows that attempt was made to assault Kashinath also, but he and the other two persons Vishwanath and Ramnath ran away, so that they escaped unhurt. There seems to be nothing unnatural in the attack having been made first against Rangnath who was ahead and was the first person met by the appellant when he came for the attack.\n9.  On the second point we find that the Sessions Judge believe the evidence of Rangnath and the other three witnesses who saw this incident, and we are unable to find any cogent reasons in support of the submission made by learned counsel that these witnesses should not have been believed. The Sessions Judge himself accepted their evidence with caution, because he appears to have felt that they were all partisan and interested witnesses. The reason that the Sessions Judge gave for holding them to be partisan witnesses was that Rangnath was himself the injured person, while Kashinath was his master, and Ramnath and Vishwanath were his cousins. It appears to us that this close association between the witnesses was clearly no reason at all for doubting their veracity, because Rangnath as well as all of them must have been keen to see that the person who really stabbed Rangnath should be punished, and would not be parties to implication of innocent person in place of the real assailant or assailants. They would, therefore, be the best witnesses for giving evidence against the real culprits. The only point worth consideration, which learned counsel was able to urge before us was that the three witnesses, Kashinath, Vishwanath and Ramnath, according to their own evidence, ran away to the fields and spend the whole night in a sugarcane field instead of going into the town, informing the police or obtaining assistance from others. The conduct of the witnesses does appear to indicate, as stated by them, that thy were under great fear from the appellant and his companions and that was why they did not dare to come back to the town in the night.\n10. It has to be remembered that a threat had been given earlier in the day to Kashinath that he would be cut to piece and, even though Rangnath had been stabbed, Kashinath and the other companions could be under genuine apprehension that the appellant and his companions might still be on the look-out for them and might cause them serious injuries or even kill them.\n11.  The conduct was, therefore, not so unnatural as is sought to be urged by learned counsel that the Session Judge had committed an error in treating the statement Ext. 16 of Rangnath recorded by the Police Sub-Inspector at the Hospital as the First Information Report, because, earlier, information of this incident had been received from Vishwanath Kute, the truck driver. The evidence however shows that Vishwanath Kute gave no details and his telephonic message did not even indicate that a criminal offence had been committed. The only information he gave was that a person was lying injured; and that information given by him could not be treated as the First Information Report. Obviously, the First Information Report was drawn up on the basis of Ext. 16 which was the statement made by Rangnath to the Police Sub-Inspector.\n12. Learned counsel also urged that the High Court should have considered the discrepancies which appeared between the statements of various witnesses. These discrepancies were fully discussed by the Sessions Judge in his judgment and, if the High Court saw that the reasoning adopted by the Sessions Judge was correct, there was no need for the High Court to send for the record to arrive at the decision that the Sessions Judge was right.\n13.  As regards the third point, it is true that the weapon was not recovered; but that circumstance is quite immaterial when the medical evidence is clear that Rangnath received his injury from a sharp-edged weapon. The fact that the police, at the time of inspection, or unable to find blood stains at the place of occurrence was also fully explained by the Sessions Judge. Rangnath himself was seriously injured and, in the night, he was unable to show the place of occurrence to the police. The other three witnesses did not meet the police until next morning and it was only after the police examined those witnesses that it became possible to make a local inspection of the scene of occurrence. There was, thus, a delay of more than 12 hours between the incident and the inspection of the spot by the police. The Sessions Judge was quite right in saying that the disappearance of the blood stains, even if there were any, is explained by the lapse of time during which a lot of traffic must have passed over the place of occurrence which was on an important highway.\n14. With regard to the fourth point, the argument made by learned counsel was that the appellant did not actually intend to stab Rangnath which should be inferred from the circumstance that the main grievance of the appellant was against Kashinath, and that Rangnath was stabbed only by a mistake, so that it could not be held that the appellant had intended to cause the death of Rangnath. It may be noticed that the Sessions Judge held that the appellant was guilty of committing an offence of attempted murder not because he intended cause the death of Rangnath, but because the evidence showed that he intended to cause such injury to Rangnath as was sufficient in the ordinary course of nature to result in his death. In this finding it would be immaterial whether that particular injury was sought to be given by the appellant to Rangnath or to Kashinath in view of the provisions of S. 301 of the Indian Penal Code. The inference that the injury intended to be caused by the appellant was sufficient in the ordinary course of nature to cause death follows from the fact that the appellant used a sharp-edged weapon and gave the injury in the abdomen which was a very vital part of the body. In fact, the medical evidence is that the injury was a dangerous one and was sufficient to cause death in the ordinary course of nature. The conviction of the appellant for the offence under Section 307, I.P.C., was, therefore, fully justified.\n15.  The last point relating to the conviction under Section 148, I.P.C., was based on the fact that, according to the Sessions Judge himself, it was not possible to give a definite finding whether the weapon used was a penknife, a knife, a dagger, a jambiya, or a spearhead. It seems to us that the absence of a definite finding is immaterial, because, whatever the weapon, it was certainly one which was sharp-edged and was capable of inflicting an incised injury 1/2\" long, 1/2\", wide and having a depth upto peritonial cavity. Such weapon would clearly be a dangerous weapon or at least as weapon which, if used as a weapon of offence, was likely to cause death. The conviction of the appellant under Section 148, I.P.C., was also, therefore, on the face of it, fully justified.\n16. In these circumstances, we are unable to hold that the High Court committed any error in dismissing the appeal summarily. Of course, it would have been better in this case if the High Court, when dismissing the appeal, had dealt with each of the points urged before to by learned counsel who represented the appellant before that Court separately and given reasons for holding that none of those reasons given justified the course of sending for the record, giving notice to the State, and hearing the appeal on merits. The appeal fails an is dismissed.\nAppeal dismissed\n"}
+{"id": "2qFl41sNLj", "title": "", "text": "Kavita w/o Sunder Shankardas Devidasani and another v State of Maharashtra and Others\nSupreme Court of India\n\n28 July 1981\nWrit Petition (Criminal) No. 2690 of 1981. (Under article 32 of the Constitution of India) AND Writ Petition (Criminal) No. 3241 of 1981. (Under article 32 of the Constitution of India)\nThe Judgment was delivered by: O. Chinnappa Reddy, J.\n1.  These two Writ Petitions (Criminal) may be disposed of by a single judgment as some of the questions raised are common to both. To begin with, we may refer to the facts in Writ Petition (Criminal) No. 2690 of 1981. The Government of Maharashtra, in exercise of the powers under Sec. 3(1) of the COFEPOSA, directed the detention of Sunder Shankardas Devidasani by an order dated March 9, 1981, with a view to prevent him from smuggling goods and abetting the smuggling of goods. The grounds of detention, also of the same date, were duly served on the detenu. The detenu made a representation on April 14, 1981 and this was rejected by the Government on April 25, 1981. A further representation made by the detenu on April 25, 1981 was also rejected on May 2, 1981. In the mean-time the Advisory Board met on April 29, 1981 and considered the case of the detenu. By a letter dated May 6, 1981 the detenu was informed by the Advisory Board that the Board had reported to the Government of Maharashtra advising them that there was sufficient material to justify his detention.\n2.  In this application for the issue of a Writ of Habeas Corpus, the first submission of Shri Jethmalani, learned counsel for the detenu, was that although it was the Government that was required by Sec. 8(b) of the COFEPOSA to make the reference to the Advisory Board, in the instant case, it was not the Government but one of its subordinate officers that had made the reference. There was thus, according to Shri Jethmalani, a departure from the prescribed procedural requirement and for that reason the continued detention of the detenu for any period longer than five weeks mentioned in Sec 8(b) was illegal. Shri Jethmalani's contention was that Sec. 8 (b) required the Government to make a reference to the Advisory Board within five weeks from the date of detention and this meant that the Government had first to decide that it was necessary to detain the person for more than five weeks and then to forward the reference to the Advisory Board. The learned counsel would have it that the making of a reference to the Advisory Board necessitated a decision to detain the detenu for more than five weeks and this decision could be taken by the Government only and none else.\n3.  We are unable to agree with the submission of Shri Jethmalani. Art. 22 (4) (a) of the Constitution prescribes that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Art. 22 (7) (c) empowers Parliament, by law, to prescribe the procedure to be followed by an Advisory Board in an enquiry under Art. 22 (4) (a). Sec. 3 (1) of the COFEPOSA authorises the Central Government, the State Government an officer of Central Government, not below the rank of a Joint Secretary specially empowered in that behalf, or an Officer of a State Government not below the rank of a Secretary specially empowered in that behalf to make an order directing that a person be detained, if satisfied, with respect to that person, that it is necessary to detain him with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, etc. etc. Sec. 3 (3) provides for the communication of the grounds of detention to the detenu to enable him to make a representation. The communication has to be ordinarily not later than five days of the date of detention though in exceptional circumstances, for reasons to be recorded in writing, it may be fifteen days.\n4.  Sec. 8 provides for the Constitution of Advisory Boards and the procedure to be followed by them. Sec. 8 (b) obliges the appropriate Government, within five weeks from the date of detention of a person under a detention order, to make a reference in respect of the detention to the Advisory Board to enable the Advisory Board to make the report under Art. 22 (4) (e) of the Constitution. Sec. 8 (c) prescribes the procedure to be followed by the Advisory Board and requires the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned. Sec, 8 (f) stipulates that the appropriate Government shall revoke the detention order and cause the person to be released forthwith if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned.\n5.  If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Sec. 11 empowers the State Government to revoke an order of detention made by an Officer of the State Government, and the Central Government to revoke an order of detention made by a State Government, an officer of a State Government or an Officer of the Central Government. The power of the State Government and the Central Government, under Sec. 11 of the COFEPOSA, to revoke orders of detention is in addition to the power under Sec. 21 of the General Clauses Act to revoke their own orders.\n6.  The first important factor to be noticed here is that the period for which a person is to be detained under the COFEPOSA is not to be determined and specified at the time of making the original order of detention under Sec. 3(1). It has to be determined and specified at the time of confirming the order of detention under Sec. 8 (f), after receiving the report of the Advisory Board. The second factor of importance which calls for attention is that while an order of detention may be made by the State Government, the Central Government or an Officer of either Government specially empowered in that behalf, an order of detention may only be confirmed by the appropriate Government. Keeping in mind these two factors, we may now examine the time- scheme under the COFEPOSA. First the detaining authority, who may be the Central Government, the State Government or an Officer of either Government, specially empowered in that behalf, must be satisfied that it is necessary to detain a person with a view to preventing him from acting in a certain manner or doing certain things, and if so, satisfied, an order of detention may be made (Sec. 3 (1), COFEPOSA).\n7.  The order of detention has not to specify the proposed period of detention at that stage. Within five days of the detention, the detenu is required to be furnished with the grounds of detention so as to enable him to make a representation to the detaining authority (Art. 22(5) of the Constitution and Sec. 3(3), COFEPOSA). Thereafter, within three months from the date of detention, the Advisory Board has to report the sufficiency of cause for such detention. This is a constitutional mandate (Art. 22(4) of the Constitution). In order to enable the Advisory Board to discharge its constitutional obligation, the Government is required to make a reference to the Advisory Board within five weeks from the date of detention (Sec. 8(b) of COFEPOSA). The Advisory Board in its turn is charged with the task of submitting a report within eleven weeks from the date of detention, specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned (Sec. 8(c), COFEPOSA). Quite obviously the period of eleven weeks from the date of detention prescribed for the submission of the report of the Advisory Board is to enable compliance with the Constitutional time-limit of three months. On receipt of the report the Government has to revoke the detention, if the Board has reported that there is no sufficient cause for the detention or, to confirm the order of detention and specify the period of detention if the Board has reported that there is sufficient cause for the detention (Sec. 8(f) COFEPOSA).\n8.  In the meanwhile, at any time, the Central Government in any case, and the State Government if the order of detention was made by the State Government or by an Officer of the State Government, are entitled to revoke the order of detention. Thus there is no Constitutional or Statutory obligation on anyone, until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention. The initial compulsion on the detaining authority before making an order of detention is to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts. The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage, after consideration of the report of the Advisory Board. There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though, at any and every stage, the Government has the full liberty to revoke the order of detention. We are, therefore, of the view that the act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion, though of course the Government is at that stage, as at all other stages, at liberty to revoke the order of detention. The prescription of five weeks in Sec. 8(b) of the COFEPOSA for the making of a reference to the Advisory Board is with a view to enable the fulfilment of the Constitutional requirement of Art. 22(4) and not with a view to imposing an obligation upon the Government to consider the question of the length of detention and arrive at a tentative conclusion even at that stage. We, therefore, reject the first submission of Shri Jethmalani.\n9.  The second submission of the learned counsel for the detenu was that the representation was disposed of by the Minister of State, Home Affairs, Government of Maharashtra without any authority to do so. It is somewhat strange that this contention should have been raised before us. We understand that this very contention was previously raised in another Writ Petition and that the relevant standing order was produced before the Court at the hearing of the Writ Petition and that it was also shown to the learned counsel. The standing order is made by Shri A.R. Antulay, Chief Minister of Maharashtra and Minister for Home and it directs allotment of the business appertaining to \"All cases of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Maharashtra Detention Order, 1974 and all other matters arising under the provisions of the said Act and the said order and any other orders issued under this Act, except \" (We are not concerned with the exceptions) to the Minister of State for Home, Shri Abhey Singh Maharaj Raje Bhosale.\n10.  Rule 6 of the Maharashtra Govt. Rules of Business made by the Governor of Maharashtra in exercise of the powers conferred by Art. 166 (2) and (3) of the Constitution provides that the Chief Minister and a Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining to a Department or a part of a Department. It is, therefore, clear that the Minister of State, Home Affairs, Government of Maharashtra was entitled to deal with the representation of the detenu. It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant. There is no substance in this suggestion. The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government authorised to so act for the Government under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. It is unnecessary to pursue the matter any further as we find no constitutional or legal infirmity in the representation having been considered by the Minister of State, Home Affairs, Government of Maharashtra.\n11.  The learned counsel next submitted that the detenu was not permitted to be represented by a lawyer despite his request that he might be allowed to engage the services of a lawyer before the Advisory Board. In his representation to the Government the detenu did make a request to be permitted to be represented by a lawyer. The Government informed him that under the provisions of Sec. 8(e) of the COFEPOSA he was not entitled to be represented by a lawyer before the Advisory Board and therefore, it was not possible to grant his request. The complaint of the learned counsel for the detenu was that while a detenu may not be entitled, as of right, to be represented by a lawyer before the Advisory Board, there was no bar against a lawyer being permitted to appear before the Advisory Board and therefore, the request of a detenu to be represented by a lawyer had to be considered on the merits of each individual case. This the learned counsel submitted had not been done in the present case and the detenu's request was never placed before the Advisory Board.\n12.  It is true that while Sec. 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer. We agree that the importance of legal assistance can never be over-stated and as often than nota dequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 21 of the Constitution and the Right to be heard given to a detenu by Sec. 8(e), COFEPOSA. These rights may be jeopardised and reduced to more nothings without adequate legal assistance. That would depend on the facts of each individual case, in the light of the intricacies of the problems involved and other relevant factors. Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have; if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer. He preferred not to do so. In the special circumstances of the present case we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to\nlead to the conclusion that procedural fairness, a part of the Fundamental Right guaranteed by Art. 21 of the Constitution was denied to him.\n13.  The last submission of the learned counsel was that there was a non application of the mind of the detaining authority, first in making the order of detention and later in considering the representation of the detenu. It was contended that the recital in the grounds of detention that detenu had made a statement that certain documents received at the detenu's residence at the time of search pertained to the order dated 29.11.1980 of Shri Abdullahi Amin, Attache, Sudan Consulate was not correct and that the detenu's statement contained no such recital. It was said that the grounds of detention read as if the detenu had admitted the existence of the order dated 29.11.80 in the statement made by him. We do not find any substance in this submission. A reading of the document leaves no such impression. All that was said was that the documents received by post at the time of search pertained to an order dated 29.11.80 and not that there was admission by the detenu that there was ever an order dated 29.11.80. It was then contended that in the course of communication of the grounds of detention the detenu was informed thatit was against the public interest to disclose the source of intelligence and the further facts contained therein. The actual sentence by which privilege was claimed against disclosure was as follows:\n\"I consider it against public interest to disclose the source of intelligence referred to in the grounds furnished above and further consider it against public interest to disclose further facts contained therein\". The argument was that the grounds did not state that the Government considered it against public interest to disclose the source of intelligence and the further facts contained therein but that it was the Assistant Secretary to the Government of Maharashtra who signed at the bottom of the grounds that though it was against the public interest to disclose the source of intelligence and the facts contained therein. The emphasis was on the use of the first person by the Assistant Secretary. This was explained by the respondents as a Clerical mistake and was later rectified by making suitable corrections. It was contended that the discovery of the mistake and its rectification was after the Advisory Board had submitted its report, though the detenu had even earlier, raised the question that it was the Government and not the Assistant Secretary that could claim privilege. It was not brought to the notice of the Advisory Board at any time that the mistake was only clerical. We have the least hesitation in rejecting the contention. The mistake is so obviously clerical that we cannot permit the detenu to take advantage of it. In the result W.P. No. 2690/81 is dismissed.\n14.  The first two questions raised in the previous Writ Petition are common to Writ Petition No. 3241 of 1981 also. An additional point was sought to be raised that the copy of a certain document was not supplied to the detenu but after verification the point was abandoned by the learned counsel. This Writ Petition is also dismissed.\nPetition dismissed.\n"}
+{"id": "8EE5GXTeLY", "title": "", "text": "Smt. Masuma v State of Maharashtra and Another\nSupreme Court of India\n\n12 August 1981\nWrit Petition Criminal No. 1892 of 1981\nThe Judgment was delivered by: P. N. Bhagwati, J.\n1. This is a petition for a writ of Habeas Corpus for securing the release of one Hasnain Mukhtar Hussain Lakdawala (hereinafter referred to as the detenu) who has been detained by the Government of Maharashtra under an order of detention dated 31st December 1980 made in exercise of the powers conferred u/s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFEPOSA). This order of detention though dated 31st December 1980 was served on the detenu on 17th January 1981 and alongwith the order of detention, a communication, also dated 31st December 1980, was served on the detenu containing the grounds of detention. The Government of Maharashtra also served on the detenu at the same time a letter dated 7th January 1981 enclosing copies of the documents relied upon in the grounds of detention.\n2. It appears that on 6th February 1981 the advocate of the detenu addressed a letter to the Superintendent, Bombay Central Prison where the detenu was then confined and alongwith this letter he forwarded nine copies of the representation which was to be submitted by the detenu to the Government of Maharashtra against the order of detention. This letter was delivered by the authorities in charge of the Bombay Central Prison to the detenu on 6th February 1981, but on the same day the detenu was shifted from the Bombay Central Prison to Nasik Road Central Prison and the nine copies of the representation were therefore carried by the detenu with him to the Nasik Road Central Prison and from there, the requisite number of copies of the representation duly signed by the detenu were forwarded to the Government of Maharashtra and the Chairman of the Advisory Board on 10th February 1981. This representation was however rejected by the Government of Maharashtra by its letter dated 25th February 1981.\n3. It appears that a copy of the representation was also sent by the detenu to the Central Government and by its letter dated 26th February 1981 the Central Government too rejected the representation. In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, the detenu was called for an oral hearing by the Advisory Board and at this meeting the detenu handed over to the Chairman and Members of the Advisory Board four copies of a further representation dated 11th March 1981 addressed by him jointly to the Chairman and the Members of the Advisory Board and the Government of Maharashtra praying that the Government of Maharashtra may be pleased to revoke the order of detention and set the detenu at liberty.\nThe Advisory Board considered the case of the detenu and by a letter dated 16th March 1981, the Secretary of the Advisory Board intimated to the advocate of the detenu that the Advisory Board had by its report dated 12th March 1981 advised the Government of Maharashtra that there was sufficient cause for the detention of the detenu. The State Government thereafter in exercise of the powers conferred u/cl. (f) of s. 8 passed an order dated 23rd March 1981 reciting the opinion given by the Advisory Board and confirming the order of the detention. The petitioner who is the wife of the detenu thereupon preferred the present writ petition challenging the order of detention made by the Government of Maharashtra as also the continuance of the detention under the subsequent order dated 23rd March 1981.\n4. There were several grounds urged on behalf of the petitioner in support of the petition and each one of them was seriously pressed before us by Mr. Jethmalani on behalf of the petitioner. The first ground was that the order of detention was made by one P. V. Nayak, Secretary to Government, Revenue and Forest Department and Ex-officio Secretary to Government, Home Department while the representation made by the detenu against the order of detention was considered and disposed of by the Minister of State for Home Affairs not by P. V. Nayak and hence there was no effective consideration of the representation of the detenu as required by law.\nThe argument on behalf of the detenu was that the representation of a detenu must be considered by the same person who has passed the order of detention and since in the present case, the representation was considered by a different person, it was not a valid and proper consideration of the representation and the continuance of the detention of the detenu was therefore invalid There was also another related ground urged on behalf of the petitioner and it was that the Minister of State for Home affairs who considered the representation of the detenu was not competent to do so, both by reason of lack of authority as also in view of the fact that the case had already been dealt with by P. V. Nayak.\n5. We do not think there is any substance in either of these two grounds. If we look at the order of the detention, it is clear that it was not made by P. V. Nayak in his indi-vidual capacity as an officer of the State Government but it was made by him as representing the State Government. It was the State Government which made the order of detention acting through the instrumentality of P. V. Nayak, Secretary to Government who was authorised so to act for and on behalf of and in the name of the State Government under the Rules of Business. Rule 15 of the Rules of Business of the Government of Maharashtra provided that those Rules may \"to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister\" and in exercise of the power conferred under this Rule, the Governor of Maharashtra issued Instructions for the more convenient transaction of the business of the Government. Clauses (4), (5) and (6) of these Instructions as they stood at the material time provided inter alia as under:\n\"4. Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority, of the Minister-in- charge, who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department, Copies of such standing orders shall be sent to the Governor and the Chief Minister.\"\n\"5 Each Minister shall arrange with the Secretary of the Department what matters or classes of matters are to be brought to his personal notice.\"\n\"6.Except as otherwise provided in these instructions, cases shall be submitted by the Secretary in the Department to which the case belongs to the Minister-in-charge.\"\n6. Pursuant to the instructions contained in these clauses, Shri A. R. Antulay, Chief Minister of Maharashtra and Minister incharge of the Home Department, issued a Standing order dated 18th July 1980 directing that cases under sub-section (I) of s. 3 of the Cofeposa Act need not be submitted to him or to the Minister of State for the Home Department and that such cases may be allotted to and disposed of by any of the six officers mentioned there one of them being P. V. Nayak. On the same day, another Standing order was issued by Sh. A. R. Antulay Chief Minister of Maharashtra and Minister-in-charge of Home Department in pursuance of the provisions contained in Rule 6 of the Rules of Business, directing inter alia that all cases appertaining to the Cofeposa Act and all other matters arising under the provisions of that Act may be allotted to the Minister of State for Home Affairs. This latter Standing order provided that nothing contained in it shall affect the directions contained in the earlier Standing order issued on the same day.\nIt will therefore be seen that P. V. Nayak was authorised under the earlier Standing order dated 18th July 1980 to deal with and dispose of cases under sub-s. (I) of s. 3 of the COFEPOSA and it was in exercise of the authority thus conferred upon him that P. V. Nayak acting for the State Government made the order of detention against the assessee under sub-s. (I) of s. 3. [t was the State Government which made the order of detention and not P. V. Nayak in his individual capacity.\n7. The representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P. V. Nayak acting for the State Government under the earlier Standing order dated 18th July 1980 or the Minister of State for Home could dispose it of under the later Standing order dated 18th July 1980. Whether P. V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and wherever be the instrumentality, whether P. V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation. The only requirement of Art. 22 (5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government.\nThere is no requirement express or implied in any provision of the COFEPOSA that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu. In fact, as pointed out by Chinnappa Reddy, J. in Smt. Kavita v. State of Maharashtra a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction, however advantageous it may be to do so.\n\"Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it. We do not therefore see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home.\"\n8. The next contention of Mr. Jethmalani on behalf of the petitioner was that there was nothing to show that the decision to confirm the order of detention and continue the detention of the detenu was taken by the State Government as required by cl. (f) of s. 8 and hence the continuance of the detention was invalid. lt is really difficult to appreciate this contention urged on behalf of the petitioner. It is clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government in exercise of the powers conferred u/cl. (f) of section 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of the detenu.\nThis order was expressed to be made \"By order and in the name of the Governor of Maharashtra\" and was authenticated by the Under Secretary to the Government of Maharashtra Home Department. It recited in so many terms that it was the State Government which was confirming the order of detention and continuing the detention of the detenu and no material has been placed before us on behalf of the detenu to displace the correctness of this recital. There can therefore be no doubt that the ord r confirming the detention of the detenu was made by the State Government. Moreover, we have the statement on oath made by C. V. Karnik, Assistant Secretary to the Government of Maharashtra, Home Department that \"the Government of Maharashtra thereafter u/cl. (f) of s. 8 of the said Act confirmed the said detention order by an order dated 23rd March 1981.\"\n9. It was then contended by Mr. Jethmalani on behalf of the petitioner that u/cl. (b) of s. 8 it as the obligation of the State Government to make a reference to the Advisory Board A within five weeks from the date of detention of the detenu and there was nothing to show that the State Government had made such a reference to the Advisory Board.\n10. This contention is also without substance and totally futile, because it is clear from the statement of C. V. Karnik in his affidavit that it was the State Government which referred the case of the detenu to the Advisory Board u/cl. (b) of s. 8 and no material has been placed before us on behalf of the detenu controverting the correctness of this statement. Mr. Jethmalani also raised another contention in this connection and it was that, before making a reference to the Advisory Board, the State Government had not applied its mind to the question whether it was necessary to detain the detenu for a period longer than three months and this non application of mind vitiated the reference to the Advisory Board and the subsequent order of confirmation following upon it.\nThe argument of Mr. Jethmalani was that it was only if the State Government decided to detain a person for a period longer than three months that it was required to refer the case of such person to the Advisory Board and it was therefore necessary for the State Government in every case of detention to apply its mind and consider at least before making a reference to the Advisory Board whether the detention was to be continued for a period longer than three months. We are of the view that this argument is not well founded and must be rejected.\n11. It is clear that u/cl. (4) of Art. 22 no law providing for preventive detention can authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention. This requirement of cl. (4) of Art. 22 is satisfied by the enactment of s. 8 iq the COFEPOSA. s. 8 cl. (b) provides that in case of every detention the appropriate Government shall, within five weeks from the date of detention, make a reference to the Advisory Board and the Advisory Board is required to make a report as to whether or not there is sufficient cause for the detention of the detenu and submit the same to the appropriate Government within eleven weeks from the date of detention of the detenu.\nThe period of eleven weeks from the date of detention is prescribed for the submission of the report obviously because u/cl. (4) of Art. 22 no detention can lawfully continue for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention. But one thing is clear that this provision for reference to the Advisory Board is not confined to cases where the detaining authority has already come to a decision that the detention shall be continued for a period longer than three months.\n12. It applies equally where the detaining authority has not yet made up its mind as to how long the detention shall continue or even where the detention is to continue for a period of three months or less. Whenever any order of detention is made, whether the detention is to continue for a period longer than three months or a period of three months or less or the detaining authority has not yet applied its mind and determined how long the detention shall be continued, the appropriate Government is bound within five weeks from the date of detention to make a reference to the Advisory Board and if it fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid.\nThe Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no sufficient cause for detention the detaining authority is bound to release the detenu forthwith, even though a period of three months may not have expired since the date of detention.\n13. This is a safeguard provided by the COFEPOSA ACT, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention. We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not.\nThe only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that three is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.\n14. Mr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention. This contention is also without substance and must be rejected. It is no doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th February, 1981 and these nine copies came to be forwarded to various authorities only on 10th February, 1981 but the affidavit of B.B. Mulay, Jailer attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenu's advocate and the detenu got B these documents on the same day, namely 6th February, 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th February, 1981 and it was only on 10th February, 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailer, In-charge of the Nasik Central Prison and according to the affidavit of C.P. Gaekwad, these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no un-reasonable delay on the part of the State authorities at this stage.\n15. Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th February, 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and para-wise comments were received from the Customs Department on 21st February, 1981. Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the para-wise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu.\nIt may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th February, 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays. The reply of the Customs Authorities which was received on 21st February 1981 must have been despatched on 20th February and therefore the Customs Authorities did not have more than four or five days within which to give their comments in regard to the various allegations contained in the representation of the detenu and this time taken by the Customs Authorities cannot be regarded as unreasonable. We do not think that in these circumstances the State Government could be said to be guilty of any unreasonable delay so far as the period between 13th February and 21st February, 1981 is concerned.\n16. There was also no unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd February, 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.\n17. These were all the contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and is dismissed.\nPetition dismissed.\n"}
+{"id": "ILft9SGVZe", "title": "", "text": "Johney D Couto v State Of Tamil Nadu\nSupreme Court of India\n\n4 November 1987\nCriminal Appeal No.232 of 1987\nThe Judgment was delivered by: Rangnath Misra, J.\n1.  This appeal is by special leave. Appellant challenged his order of detention u/s. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) by filing a writ petition before the High Court and that application, has been dismissed. As many as six contentions had been advanced before the High Court.\n2. Though raised in the writ petition, the point relating to denial of a fair hearing before the Advisory Board has not been noticed by the High Court as a contention on behalf of the appellant, but counsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are not in dispute we find no objection to entertaining this contention now specifically raised in this appeal.\n3.  The hearing of the representation of the appellant by the Advisory Board was fixed for 25th November, 1986. On that day the appellant had specifically requested the Advisory Board to permit one Mr. Sundararajan, a retired Assistant Collector of Central Excise to assist him as a friend. The Board, as appears from the counter affidavit filed in this Court, turned down the request. The counter affidavit states:-\n\"The Advisory Board has given its finding in rejecting the detenu's request for assistance of a friend, namely, Mr. Sundararajan in paragraphs 2 and 3 of its report sent to the Government. The Advisory Board has stated in paragraph 2 that the detenu filed a petition requesting the assistance of Mr. Sundararajan, a retired Assistant Collector of Customs.\nThe Advisory Board has stated in paragraph 3 that Mr. Sundararajan has appeared before it and had stated that he was formerly employed in the customs department and he would like to assist the detenu. In the same paragraph, the Advisory Board has also stated that it was admitted by Mr. Sunderarajan before the Advisory Board that he is not a friend of the detenu and because of his professional experience he liked to help the detenu. In the same paragraph the Advisory Board has given its findings and reasons for rejecting the request of the detenu on the ground that Mr. Sundararajan not being a friend of the detenu, the Advisory Board did not consider it proper to allow him to represent the case of the detenu.\"\n4.  It is thus clear from the allegations in the special leave petition and the counter affidavit that the appellant had requested the Board to allow him the assistance of a friend at the hearing and for the reasons and in the manner indicated in the counter affidavit the request was turned down.\n5.  In paragraph 9 of the special leave petition the appellant had alleged that on 25th November, 1986, the detaining authority was represented by customs officers of the rank of Deputy Collector of Customs and Superintendent. In the counter affidavit filed before this Court there has been no denial of this fact.\n6. Learned counsel appearing for the respondent did not dispute the allegation on the basis of the record as also the papers available with him that the department was represented at the hearing before the Advisory Board by a Deputy Collector of Customs. The position, therefore, is that on 25th November, 1986 while the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise the detent was denied the assistance of a retired Assistant Collector of Central Excise. On the recommendation of the Advisory Board, the detention order was confirmed.\n7.  The appellant is a clearing and forwarding agent at Madras and is said to be a young man aged around 26 or 27 years. The case before the Board involved certain facets which require acquaintance with the legal provisions and the procedure and practice adopted by the customs authorities.\n8. It is the case of the appellant that he was not very much acquainted with them and that is why he had sought the assistance of Sundararajan and even brought him before the Board that day. In the facts of the case we are not in a position to reject the contention that if Sundararajan had been permitted to assist the appellant his case would have been better placed before the Advisory Board.\nIn the premises indicated above, two aspects have to be examined-\n(1) Whether the appellant was entitled to the assistance of Sundararajan as a friend; and\n(2) Whether when the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise, was the request of the appellant to be assisted by a retired Assistant Collector of Central Excise unjust and should the same had been refused?\n9. A two-Judge Bench of this Court in Nand Lal Bajaj v. State of Punjab, [ 1982] 1 SCR 718 1981 Indlaw SC 92 was considering the question of legal assistance for the detenu before the Advisory Board. It referred to the decision of this Court in the case of Smt. Kavita v. State of Maharashtra, [1982] 1 SCR 138 1981 Indlaw SC 242 where Chinnappa Reddy, J. made the following observation:\n\"It is true that while s. 8 (e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer.\"\nThe learned Judge further stated:-\n\"As often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 21 of theConstitution and the right to be heard given to a detenu by s. 8(e), COFEPOSA  ACT.\"\nIt was further observed by Reddy, J. :-\n\"Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have, if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer.\" Sen, J. in Nand Lal's case 1981 Indlaw SC 92 (supra) observed:\nWhile the detenu was not afforded legal assistance, the detaining authority was allowed to be represented by counsel. It is quite clear upon the terms of sub-s. (4) of s. 11 of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board, but it did not preclude the Board to allow such assistance to detenu, when it allowed the State to be represented by an array of lawyers.\"\n10.  A Constitution Bench of this Court in A.K. Roy etc. v. Union of India & Anr., [1982] 2 SCR 272 1981 Indlaw SC 381 dealt with this aspect. Chandrachud, CJ, speaking for the Court stated:\n\"We must therefore, held, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Art. 22(4)(b) of theConstitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. the Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu.\nIn any case, that is not what theConstitution says and it would be wholly inappropriate to read and such meaning into the provisions of Art. 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board the detenu must be allowed the facility of appearing before the Board through a legal practitioner.\nWe are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take-shelter behind the excuse that such officers are not \"legal practitioners\" or legal advisers. Regard must be had to the substance and not to the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assist or advises on facts of law must be deemed to be in the position of a legal adviser.\nWe do hope that Advisory Boards will take care to ensure that the provisions of Art. 14 are not violated in any manner in the proceedings before them\"\n11.  Learned counsel for the respondent does not dispute that what has been stated above is the law applicable to the facts of this case. We have already found that the detaining authority had the assistance of the Deputy Collector of Central Excise and a Superintendent of Central Excise. In the words of Chandrachud, CJ, \"they play the role of legal advisers. The Board had no justification to refuse assistance of Sundararajan to the appellant in such circumstances.\n12.  The rule in A. K. Roy's case 1981 Indlaw SC 381 (supra) made it clear that the detenu was entitled to the assistance of a 'friend'. The word 'friend' used there was obviously not intended to carry the meaning of the term in common parlance.\n13. One of the meanings of the word 'friend', according to the Collins English Dictionary is \"an ally in a fight or cause; supporter\". The term 'friend' used in the judgments of this Court was more in this sense than meaning 'a person known well to another and regarded with liking, affection and loyalty.' A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court.\n14.  The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer.\n15. As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way. Sundararajan, in this view of the matter, was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified.\n16. It is not for this Court to examine and assess what prejudice has been caused to the appellant on account of such denial. This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law.\n17.  In view of the position of law and the facts of the case, we must hold that the refusal by the Advisory Board to permit the appellant to be assisted by Sundararajan as a friend was bad and continued detention of the appellant became vitiated. Accordingly, this appeal is allowed and the order of detention is quashed. The appellant is directed to be set at liberty forthwith.\nAppeal allowed.\n"}
+{"id": "GCLgR0OVSn", "title": "", "text": "Punjab National Bank, Limited v Their Workmen\nSupreme Court of India\n\n6 December 1960\nC.A. No. 450 of 1959,\nThe Judgment was delivered by: GAJENDRAGADKAR, J.\n1.  This appeal by special leave arises out of an industrial dispute between the appellant, the Punjab National Bank, Ltd., and the respondents, its workmen. On 17 June, 1958 the Central Government referred his dispute for adjudication to the Central Industrial Tribunal, Delhi, constituted under S.7A of the Industrial Disputes Act XIV of 1947; this reference was made under S. 10(1)(d) of the said Act. The question referred for adjudication is thus stated in the order of reference :\n\"Whether the Punjab National Bank, Ltd., Delhi, is justified in imposing a condition that the persons appointed as officers grade II either by direct recruitment or by promotion shall be governed by the rules of the bank as applicable to officers in respect of scales of pay and other conditions of service and not by those of the award of the All-India Industrial Tribunal (Bank Disputes), as modified by S. 3 of the Industrial Disputes (Banking Companies) Decision Act, 1955 (41 of 1955), and if not, to what relief are such persons entitled.\"\n2. The industrial tribunal heard both the parties, considered the evidence led by them in support of their respective contentions and has made an award in favour of the respondents. In dealing with the reference the tribunal framed two issues. The first issue was whether the appellant was justified in issuing circular No. 249 dated 18 April, 1957 (Ex. M. 4) and thereby imposing the conditions contained therein on its employees, and whether such a circular was opposed to law as contended by the respondents. The second issue was whether in view of the subsequent circular No. 336 (Ex M.1) issued by the appellant on 26 May, 1958 the respondents can have no grievance at all in the matter. Both these issues have been answered by the tribunal substantially in favour of the respondents. The tribunal has held that though the appellant may be at liberty to impose and conditions it liked on new entrants in its service, it could not impose any conditions in its pre-existing staff which were inconsistent with the Bank award which was then in operation; that is why the tribunal has set aside the promotions made by the appellant from the existing employees to grade II under the relevant circulars and directed the appellant to make promotions to the cadre of officer grade II from among its employees according to the procedure prescribed by the said Bank award.\n3.  It is against this award that the appellant has come to this Court by special leave.The appellant which is an important banking company carries on its banking operations through its 350 odd branches situated all over the country. It employs more than 7, 000 workmen in its several offices. In the present appeal we are concerned with its supervisory staff whose strength approximately is 824. As we will presently point out, the present industrial dispute is the culmination of longstanding difference between the appellant and its supervisory staff, and the story of these difference goes back to the constitution of the Sen Tribunal appointed in June 1949. This tribunal was called upon to deal, inter alia, with the problem of the supervisory staff employed by Indian banks.\n4. After an exhaustive enquiry it made its award, but on an appeal to this Court the said award was set aside in 1951. Thereafter Act 11 of 1951 was passed as a temporary measures for freezing certain provisions of the said award in order to prevent the spread of the prevailing unrest amongst the bank employees in question. The said dispute was then referred by the Central Government to the Sastri Tribunal in January, 1952. This tribunal held an elaborate enquiry and made its award which was published on 20 April, 1953. Appeals were preferred by the banks and their employees against the said award before the Labour Appellate Tribunal, and on 28 April, 1954 the Appellate Tribunal substantially confirmed the recommendations and directions of the Sastri Tribunal with certain modifications. In these arbitration proceedings 121 banks were concerned; amongst them was the present appellant. After the decision of the Labour Appellate Tribunal was pronounced the Central Government made certain modifications in the said decision, and that led to the appointment of a Commission of Enquiry on the five points referred to it. On 25 July 1955 the Commission submitted its report, and in the terms of the said report the parliament passed Act 41 of 1955 which was in operation for five years thereafter. It is common ground that at the relevant time the decision of the Labour Appellate Tribunal as modified by the later Act governed the relations between the appellant and the respondents.\n5. According to the respondents the appellant consistently followed a policy of refusing to implement the said decision and with that object it began to issue circulars with a view to persuade the respondents to give up their claims under the said decision. The respondents, however, were determined to enforce their rights under the said decision, and that led to arbitration proceedings between the parties. The Central Government referred to Mr. Rameshwar Dayal for his adjudication a dispute relating to 17 supervisors, accountants and head cashiers named in the reference. The main point of controversy between the parties was whether the employees designated as aforesaid were workmen under the Act or not. Whereas the respondents thought they were workmen, the appellant denied it. On 4 April, 1957 the said tribunal decided this point in favour of the respondents, and it held that the appellant was not justified in reissuing a dispute in that behalf. It is in the background of this previous history of long-standing dispute that the subsequent events which led to the present reference have to be considered.\n6. The Sastri award which dealt exhaustively with all the items of dispute between the parties made several recommendations, two of which may be specifically mentioned at this stage. In Para. 164 the award provided that in regard to categories of employees specified in the said paragraph it was necessary that special allowances should be paid. These categories were serially specified as categories 1 to 9 and in respect of each of them the special allowance fixed was prescribed by the award. It is well-known that the Sastri award had classified the banks into four classes, and the directions in regard to the payment of special allowance was made by reference to the areas where the said banks were operating. The class of employees designated as supervisors, superintendents, sub-accountants, departmental incharges, and employees in charge of treasury pay office constituted category 9, and a special allowance of Rs. 50 per month was payable by \"A\" class banks in regard to them.Paragraph 529 of the award dealt with the problem of promotions.\n7. The award stated that it was not possible to lay down any hard and fast rule in connexion with promotions. It rejected the suggestion of the employees' unions that they should be consulted in connexion with promotions, because it was satisfied that such suggestions were not supportable on principle. It was agreed that promotion could not be treated as a matter which could be made automatic and a great deal of discretion by its very nature must rest with the management in that connexion. Even so, in the said paragraph the award made certain general recommendations which may be borne in mind by the management in dealing with cases of promotion. The award also deal with the problem of dearness allowance in different places, readjustment of salaries, office hours, overtime wages, procedure to be followed in taking disciplinary action and transfers in several paragraphs. The respondents' case is that the provisions contained in these several paragraphs of the award which were confirmed by the appellate decision were binding between the parties at the relevant time and it was not open to the appellant to impose any new condition into the contract of service which was inconsistent with any of the provision of the said decision. That in substance is the basis of the grievance made by the respondents in the present proceedings.\n8. Let us now briefly indicate the nature and effect of the circulars issued by the appellant seeking to introduce new conditions of service governing the employment of the respondents. The first circular in the series is circular No. 201 issued on 8 August, 1956 (Ex. W. 5.) By this circular the appellant framed certain rules for promotion of clerks to the cadre of supervisors. It appears that the rules framed by the appellant in that behalf were not exhaustive, and so the said rules were revised and new elaborate provisions were made for promoting clerks to the cadre of supervisors. These rules prescribe the allotment of marks under different clauses and are intended to held the management in assessing the quality of the work done by the employee with a view to decide whether he should be promoted to the cadre of supervisor or not. This circular does not appear to be inconsistent with any provision of the award or decision, and no serious exception can be taken on it.\n9. The followed circular No. 249 (Ex. M. 4) dated 18 April 1957. By this circular the appellant announced that its board of directors has sanctioned the creation of two grades for the officer staff, officer grade II, with its pay scale beginning with Rs. 175 in the grade Rs. 175-15-325-E.B.-20-425 and officer grade I beginning with Rs. 225 in the grade Rs. 225-20-425-E.B.-25-550. The circular then proceeded to add that all existing confirmed supervisors shall be placed in grade II and all confirmed officers of the rank of accountants and assistant managers in grade I. According to the circular, salaries of persons who were drawing less than the starting salary of the new grade should be raised to the minimum of the new grade from 1 April, 1957 when the said grade had come into existence. The circular further promised that adjustment allowance then being drawn by the officer shall be wiped off to the extent of increase in his employments on account of the revision of grades. It appears that the tribunal was inclined to hold that this provision about adjustment allowance contravened the award, but it has been fairly conceded before us that the said view is erroneous; so that by itself this circular also cannot be said to contravene the award or the decision.\n10. But there are two other confidential letters which were issued by the appellant along with the said circular and which lend strong support to the respondents' case that the circular was issued as a part of a scheme whereby the appellant wanted to deprived the respondents of their legitimate rights under the award. The first confidential letter issued on 30 May, 1957 (Ex. M. 18), and addressed to the different branch managers, starts by saying that according to industrial decisions the status of an employee has to be determined not by his designation but by reference to the nature of the work that he does. This has reference to industrial decisions under S.2(s) of the Act. Then the circular says that the appellant was anxious to avoid such disputes, and it adds :\n\"accordingly it has been decided to address the supervisors and accountants working at your branch with a letter, copy of which is attached. You are requested to issue the aforesaid letter under you signatures to the supervisors and accountants working under you, and send their replies to us in a confidential cover along with a complete list of duties performed by them as per specimen attached.\"\n11. The other letter (Ex. M. 18A) purports to enquire from the different employees whether they considered themselves as officers or workmen; in other words, the enquiry addressed to the employees was on the question as to whether they claimed the status of a workman under S.2(s) of the Act or not. In case the employee agreed that he was an officer, then the appellant agreed to place him in the two scales mentioned by circular no. 249; and the letter significantly adds that if the employee is thus promoted to either of the two officer grades\n\"the bank rules shall apply to your regarding the various benefits and conditions of service.\"\nThe last sentence in the letter is also significant. It says :\n\" Should you, however, consider that in view of the nature of most of your duties you should be considered as workman covered under the Sastri award, you should please let us know so that we may ascertain your duties and decide your status\"\n12. In other words, this letter clearly and unambiguously shows that it is only if an employee agreed to be treated as an officer that he stood any chance of promotion to either of the two grades. If he claimed the status of a workman, then the bank reserved to itself he liberty to decide that matter for itself. Since these two letters were sent to the different branch managers before giving effect to the two grades announced by circular No. 249, it is obvious that the said circular and the two letters formed part of the same transaction, and the statement in the said circular that all existing confirmed supervisors shall be placed in grade II became an empty promise; only such supervisors were confirmed as agreed to treat themselves as officers, and those who claimed the status of workman were not confirmed.It appeared that after the employees were sounded by sending the two confidential letters the appellant decided to take the next step; and so it issued circular No. 292 (Ex. W. 2) on 13 December, 1957.\n13. This circular refers to the earlier circular No. 201 of 8 August, 1956, and says that the appellant had decided to fill up future vacancies of officers grade II in Bihar, Orissa, Assam, Madhya Pradesh, Rajasthan and places in Bombay State outside Bombay City, and so it wanted to call for applications from clerical staff having 10 marks or more in the priority list according to educational qualifications, length of service, better start and special increments. The circular closed with the positive statement that on appointment to such posts the employees will be governed by the bank rules as applicable to officer staff in respect of service conditions, scales of pay, transfers, etc., and not those of the bank award. Thus the result of this circular is clear that employees promoted to the class of officers in grade II would be deprived of the benefits of the Bank award and would be governed by the bank scales; in other words, what the earlier circular indirectly attempted to do with the assistance of the two confidential letters was directly sought to be done by this circular. No doubt the circular ostensibly was limited to the appointments mentioned in the branches specified in it, but the object of the circular cannot be concealed by the specification of such branches. The appellant had decided to recruit to grade II only such employees as would forgo their status as workmen and would be willing to take bank scales and nothing more.\n14. The circular naturally led to dissatisfaction amongst the employees who began to make loud protest against this open contravention of the Bank award. As a result of the protests thus made by the employees the present reference was made on 17 June, 1958. A few days before this reference was made the appellant thought it fit to modify its impugned circular, and with that object it issued another circular No. 336 (Ex. M. 1) on 26 May, 1958. This circular says that some employees may not have applied for promotion due to the impugned clause in the earlier circular of 13 December, 1957 (No. 292), and it called upon them to apply for consideration of their cases on merits. The circular added that should any one of them be selected for promotion, he would be given an option either to elect for the award scales of pay and allowances or to be governed by the bank rules applicable to officers.\n15. That in brief is the nature of the circulars which have given rise to the present dispute.The first question which has been urged before us by Mr. Veda Vyas on behalf of the appellant is that the reference itself is invalid. His argument is that, as the words used in the reference stand, they indicate that it is only persons who have been promoted subject to the impugned condition whose cases are referred to adjudication; and he points out that none of such persons has raised any dispute, and therefore no industrial dispute could have been referred for adjudication at all. This argument proceeds on the assumption that the first part of the reference refers to persons appointed subject to the impugned condition; but, in our opinion, this assumption is clearly not justified.\n16. The question referred has no reference to the persons appointed subject to the impugned conditions, but it refers to the question as to whether the impugned condition itself is valid or not; in other words, the reference can be paraphrased thus : Is the condition that the person appointed to officer grade II by promotion would be governed by the rules of the bank valid and justified ? This is the only way in which the reference can be read; that being so, we do not think that there is any substance in the challenge to the validity of the reference.\n17. The next argument is that the award made by the tribunal is outside its jurisdiction, because relief granted by the award covers persons other than those who have been promoted to grade II. This contention is also based on the same misconstruction of the terms of reference. It assumes that the reference is confined to persons who have been promoted, and so it seeks to limit the scope of the reference as to relief to the same class of persons. If, on the other hand, the reference is in regard to the validity of the conditions sought to be imposed by the impugned circular, then the nature and extent of the relief would also be similarly extended.\n18. Mr. Veda Vyas has then relied on the fact that the tribunal itself has held in favour of the appellant that fresh appointments of new recruits can be made by the appellant subject to any terms it deems reasonable to impose; and he argues that in introducing the impugned condition the appellant really wanted to benefit its employees by making them eligible for promotion to grade II. He has also contended that the tribunal was in error in attributing to the appellant a well-planned scheme by which the appellant intended to deprive the respondents of the arrears of special allowance to which they were entitled under the award. How can any scheme, however cleverly designed, deprive the respondents of their arrears which may have accrued in their favour under the award, asks Mr. Veda Vyas.\n19. Prima facie this point appears to be attractive; but when we scrutinize the two confidential letters carefully, it becomes plain that the whole object of the enquiry instituted by the said letters was to obtain an admission from the employees about their status before the promised promotion came their way; in other words, if the employees answered the query as the appellant expected them to do and said they were officers having regard to the nature of their duties, then the said admission would itself put the said employees outside the protection of the award, and in that sense they would not be entitled to make any claim for the arrears of any special allowance. That at any rate must have been the object with which the confidential letter was issued. In this connexion it would be material to recall that the Dayal award was pronounced on 4 April, 1957, and circular No. 249, innocent in appearance, was issued on 18 April, 1957 coupled with the two confidential letters.\n20. We are satisfied that the tribunal was right in taking the view that the object of issuing the circulars and two letters was to persuade or tempt the employees to make an admission that they were not workmen under the Act, and thus disqualify them from making any claim for special allowance guaranteed to them under the award. If that be the true position, then the argument that the circular was intended to benefit the employees and put them on a par with new recruits cannot claim even prima facie the merit of plausibility. The next contention raised is that whatever may be the infirmity in the circulars, Nos. 249 and 292, that has now become a matter of history because of a fresh circular No. 336 issued on 26 May, 1958. This circular called upon the employees who were unwilling to forgo the award to apply for promotion, and it solemnly promised them that in case they were selected they would be given an option either to remain under the award or to choose the bank's scale. Indeed Mr. Veda Vyas suggested that in view of the last circular no industrial dispute could be said to subsist between the parties at the date of the reference.\n21. In our opinion, this contention is not will-founded. It is obvious that this last circular was issued because it was apprehended by the appellant that the protests made by the employees were likely to succeed and that an industrial dispute was likely to be raised. It is with a view to prepare its defense for meeting the employees' case before the tribunal that this circular was issued by the appellant; and so, if any prejudice has been caused to the respondents by the earlier circulars, it cannot be said that they have been rectified or cured merely by the issue of this latter circular.Besides, there can be no doubt that after the original circular was issued on 18 April, 1957 many promotions have been made and they have been made in most cases only in regard to persons who agreed to give up their claims under the award. In this process prejudice must have been caused to a large number of employees who stood by the award and did not accept the tempting offer of promotion for a price, the price being in their opinion too heavy to be paid. To illustrate the nature of prejudice which must have been caused to a large number of employees some oral evidence was led on behalf of the respondents. Kashyap, Goyal, Gupta and others have given evidence on oath that they were not promoted and their juniors were promoted, solely for the reason that they stood by the award whereas their juniors submitted to the condition imposed by the appellant. This oral evidence shows that officers in charge of branches expressly told the employees that the appellant had decided to promote only those who would take the bank scales and give up the benefits under the award. He evidence has not been challenged by any statement on oath on behalf of the appellant, and it has been believed by the tribunal. Therefore the conclusion of the tribunal that prejudice was caused to a large number of employees by the impugned circulars of 18 April, 1957 and 13 December, 1957 cannot be successfully challenged.\n22. There is one more point which must be considered in this connexion. Mr. Veda Vyas argues that whatever may be said against circular No. 292 there is no reason why the earlier circular No. 249 should be brought into the controversy. He has urged a similar argument in regard to the earliest circular No. 201 issued on 8 August, 1956. In regard to circular No. 249 it is impossible to accept the argument that it is either innocent or is not connected with the scheme evolved by the appellant for the purpose of depriving the respondents of their legitimate rights under the award. We have already observed that by itself the circular reads like an innocent circular, but the two confidential letters issued along with it clearly bring out the object underlying the said circular.\n23. In fact what was contained in the confidential accompaniments of the said circular ultimately became a part of the subsequent circular. Therefore it is not possible to dissociate the said circular from the main impugned circular No. 292. Three circulars, Nos. 249, 292 and 336, form part of the same scheme and transaction, and they are held together by the invisible thread of the two confidential letters. Therefore, in our opinion, the tribunal was right in holding that the last circular did not mitigate the impropriety or remove the illegality of the two earlier circulars and that the said two circulars contravened the respondents' right under the award.The position in regard to circular No. 201 issued on 5 August 1956 is, however, different. It is no doubt possible to contend that this circular was the beginning of the scheme; but, on the other hand, prior to the issue of this circular promotion rested entirely in the discretion of the management, and if by this circular the management revised its earlier rules and made elaborate provisions for the allotment of marks, it would be difficult to hold that this circular by itself contravened any of the rights vesting in the respondents by virtue of the award, or that it was really a part of the same transaction evidenced by subsequent circulars. At the hearing before us a statement has been filed on behalf of the appellant which shows the promotions that have taken place during the relevant period.\n24. Sixty-eight promotions were made to the cadre of supervisors between 8 August, 1956 and 18 April, 1957. It is admitted that though the circular of 18 April, 1957 had affirmed that all confirmed supervisors would be placed in officer grade II, in actual fact only 451 out of 542 affirmed supervisors were originally placed in the said cadre, obviously because the remaining supervisors did not accept the appellant's scale and conditions. Therefore up to 13 December, 1957 promotions to grade II numbered 128, and promotions to supervisors' cadre numbered 7. Similarly, from 13 December, 1957 to 4 October, 1958 the two respective promotions are 210 and 5. It has been fairly conceded before us by the learned Attorney-General on behalf of the respondents that he cannot seriously question the propriety of the 68 promotions to the grade of supervisors that took place between 8 August, 1956 and 18 April, 1957. In regard to the remaining categories of promotions they are clearly open to challenge, because, while these promotions were made, obviously cases of other persons who were eligible at that time were not considered because they did not agree to take the bank rates and scales.\n25. We would, therefore, confirm the finding of the tribunal that circular No. 249 read with the two confidential letters and circular No. 292 have contravened the rights of the respondents under the award, and as such are invalid. We would also confirm the finding of the tribunal and its conclusion that the promotions made from 18 April, 1957, by virtue of the said circulars, and bad and must be set aside. There are, however, two directions issued by the award of the tribunal which must be reversed; and they are in regard to circular No. 201 issued on 8 August, 1956 and the direction issued by the tribunal to the appellant to promote such of the respondents as are eligible to the cadre of officer grade II.\n26. It is conceded that the said cadre is not a matter of right conferred on the respondents by the award, and all that the respondents can claim is to have their wages structure, allowances and promotions in the ordinary way as prescribed by the award. If, however, the appellant wants to continue the said cadre, it must take care to see the promotion to the said cadre does not depend on any conditions prejudicial to or inconsistent with the employees' rights under the award. Subject to the said modifications, the award of the tribunal is confirmed and the appeal is dismissed. There will be no order as to costs.\nAppeal Dismissed.\n"}
+{"id": "5eZffTYIKI", "title": "", "text": "Satish Chandra Anand v Union of India\nSupreme Court of India\n\n13 March 1953\nPetition (No. 201 of 1952)\nThe Judgment was delivered by : Vivian Bose, J.\n1. This is a petition under article 32 of the Constitution in which the petitioner seeks redress for what, according to him, is a breach of his fundamental rights under articles 14 and 16(1) of the Constitution. It was argued at considerable length by the petitioner in person. Then, when our judgment was nearly ready, he put in a petition asking for a rehearing and for permission to file some fresh papers. When that was refused he came again on another, day and asked for leave to engage an agent and appear through counsel as he felt he had not been able to do justice to his case in person. (It may be mentioned that though he had originally engaged an agent he dismissed him before the hearing when he appeared in person.) We granted his request and counsel reargued the case for him but has not carried the matter any further. The facts are these.\n2. In October,1945, the petitioner was employed by the Government of India on a five year contracting, the Directorate General of Resettlement and Employment of the Ministry of Labour. This was after selection by the Federal Public Service Commission. After a short period of practical training, he was posted in January, 1946, at Jabalpur as the Manager of the Sub-Regional Employment Exchange and was later confirmed in this appointment.\n3. This contract of service was due to expire in 1950. Shortly before its expiration the Government of India made him a new offer, embodied in its letter dated the 30th June, 1950, to continue him in service on the expiry of his contract on the terms specified in that letter. Among them were the following:\n(3) Other conditions of service:-\n4. On the termination of your contract you will be allowed to continue in your post temporarily for the period of the Resettlement and Employment Organization and will be governed by the Central Civil Services (Temporary Service) Rules, 1949, unless you are a permanent Government servant.\"\n5. He was asked in the letter to intimate to the Ministry of Labour whether he was willing to continue in service on those terms and he admits that he accepted the offer and continued in service, He was not a permanent Government servant though it was contended in argument that he was, for he was on a five year contract and the work for which he was employed, namely Resettlement and Employment, was itself only of a temporary character. Therefore, the Temporary Service Rules applied.\nOn those rules,' rule 5 is material. It runs as follows:\n5 (a) The service of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.\n(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant.\"\n6. Quasi-permanent service is defined in-the rules and it is clear that the petitioner does not come within that class. It is also an undisputed fact that there was no agreement between the petitioner and Government regarding the period of the notice. Therefore, according to this rule, which was a term in the petitioner's contract of further service, his services were liable to termination at any time by' one month's notice in writing. This notice was given on 25th November, 1950, and he was told that his services would terminate on the expiry of one month from 1st December, 1950.\n7. A large field was covered in the course of the arguments, and had the matter not been re-argued we would, for the petitioner's satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared.\n8. The petition is under article 32 (1) of the Constitution and so it must be shown that a fundamental right has been infringed. It was argued that the rights infringed are the ones conferred by articles 14 and 16 (1).\n9. Taking article 14 first, it must be shown that the ,petitioner has been discriminated against in the exercise or enjoyment of some legal right which is open to others who are similarly situated. The rights which he says have been infringed are those confered by article 31 1. He says he has either been dismissed or removed from service without the safeguards which that article confers. In our opinion, article 31 1 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank. It is an ordinary case of a contract being terminated by notice under one of its clauses.\n10. The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank Under section 240 of the Government of India Act, 1935, the safeguards were limited to those two cases. Under. the present Constitution, a third was added, namely removal from service. In order to understand the difference between \"dismissal\" and \"removal\" from service, it will be necessary to turn to the Rule,; which governed, and with modifications still govern, the \"services\" in India because of article 313 of the Constitution.\n11. Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to Conduct and Discipline includes rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. 'The Constitution has added a third to the list. The distinction which is drawn between the two is explained in rule 49. There is first removal from service \"which does not disqualify from future employment \" and there is next dismissal from service \"which ordinarily disqualifies from future employment.\" Then follows an Explanation: The discharge-\n(c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule.\"\n12. These terms are used in the same sense in article 3ll. It follows that the article has no application here and so no question of discrimination arises, for the \"law\" whose protection the petitioner seeks has no application to him.\n13. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the right-, and remedies available to other persons similarly situated -to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived.\n14. Article 16(1) is equally inapplicable. The whole matter rests in contract. When the petitioner's first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to re-employ him or to continue him in service. On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis. Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same. Article 16(1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State. The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analyzed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound. When the employment is permanent there are certain statutory guarantees but in the absence of any such limitations government is, subject to the qualification mentioned above, as free to make special, contracts of, service with temporary employees, engaged in, works of a temporary nature, as any other employer.\n15. Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways. We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed.\n16. When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney-General here for a second time, we have no alternative but to dismiss the petition with costs.\n"}
+{"id": "YqWg21nYCs", "title": "", "text": "Parshotam Lal Dhingra v Union of India\nSupreme Court of India\n\n1 November 1957\nCivil Appeal No. 65 of 1957\nThe Judgment was delivered by : Sudhi Ranjan Das, J.\n1.  This appeal has been filed with a certificate of fitness granted by the Punjab High Court on August 20, 1956. It is directed against the judgment and order passed by a Division Bench of that court on January 19, 1956, in Letters Patent Appeal No. 28 of 1955, reversing the judgment and order of Mr. Justice Harnam Singh pronounced on April 15, 1955, whereby his Lordship had allowed the appellant's application being Civil Writ No. 36D of 1955 and set aside the order passed by the General Manager, Northern Railway on August 19, 1953, reverting the petitioner from the post of Signal and Telecommunication Engineer, (Telegraphs) in Class II service where the appellant was officiating to his substantive post in Class III service. This appeal raises a very important question about the construction of art. 311 of the Constitution \n.\n2.  The facts are shortly as follows :- In August 1924 the appellant joined the railway service as a Signaller (Telegraphist). As a result of selection, he was promoted as Section Controller in 1942 and as Deputy Chief Controller in 1947 and as the Chief Controller in 1950. All these posts were in Class III service. On March 31, 1951, seven candidates including the appellants, appeared before a section board constituted for selecting a candidate for the post of Assistant Superintendent Railway Telegraphs, which was a gazetted post in class II Officer's cadre. The appellant was selected out of the seven candidates for this post. On July 2, 1951, a notice of appointment was issued from the headquarters of the East Punjab Railway, Delhi, notifying that \"Mr. Parshotam Lal, Officiating Chief Controller, is appointed to officiate in Class II service as Asstt. Spdt. Rly. Telegraphs. Headquarters Office vice Mr. Sahu Ram whose term of temporary re-employment expires on the afternoon of 3rd July, 1951\". The applicant actually relieved Mr. Sahu Ram in the afternoon of July 3, 1951. It appears that on April 28, 1953, one Gouri Shankar S.S.T.E.I./Hd. Qrs. made certain adverse remarks against the appellant in his confidential report for the year ending March 31, 1953. This confidential report came before Shri S. Sen, C.S.T.E., on May 25, 1953, who confirmed the views expressed by Shri Gouri Shankar and added his own opinion which was also adverse to the appellant. According to the usual practice obtaining in the office the aforesaid remarks were placed before the General Manager, Shri Karnail Singh, who on June 11, 1953, remarked thereon as follows:\n\"I am disappointed to read these reports. He should revert as a subordinate till he makes good the shortcomings noticed in this chance of his as an officer. Portions underlined red to be communicated.\"\n3.  The adverse remarks against the appellant in the confidential report for the year ending March 31, 1953, which were communicated to the appellant for his information by a confidential letter No. E-106/180 dated June 29, 1953, were as follows:\n\".........He is, however, inclined to be hasty in his decisions. His office work is scrappy and does not show attention to detail. His relations with staff as well as officers have not been happy. He has displayed a tendency to resort freely to transfers and punishment of staff, as a means of correcting their faults and in regard to officers has not maintained the proper tone and approach in official notings, discussions and letters to Divisions.\nThe above shortcomings have been brought to his notice on a number of occasions both in person and in writing, without any improvement.\"\nRemarks of Shri S. Sen, C.S.T.E.\n\".........This officer suffers from an inflated idea of self importance. His ways and manners require radical change if he desires to have a successful career as an officer.\"\nRemarks of the General Manager.\n\"I am disappointed to read these reports.........\"\n4.  On July 24, 1953, the appellant, who had by this time earned two increments on July 4, 1952 and July 4, 1953, made a representation against the remarks made against him. On August 19, 1953, however, notice No. 940-E/14 (E.I.A.) was issued by the General Manager (P) to the following effect:\n\"Shri Bishambar Nath Chopra, Instructor Railway Training School, Saharanpur, is transferred to Headquarters office and appointed to officiate in Class II service as Assistant Signal and Telecommunication Engineer (Telegraphs) vice Shri Parshotam Lal Dhingra, who on relief reverts to Class III appointment.\"\n5.  The appellant on August 20, 1953, appealed to the General Manager for reconsideration and thereafter on October 19, 1953, appealed to the Railway Board and made a representation also to the President of India. On February 2, 1955, the Railway Board wrote to the General Manager as follows\n\"With reference to your letter No. 3780 dated 30th December, 1953, the Board desires that you should inform Shri Parshotam Lal Dhingra that his reversion for generally unsatisfactory work will stand, but that this reversion will not be a bar to his being considered again for a promotion in the future if his work and conduct justify. He should also be informed that he has, in his representation, used language unbecoming of a senior official, and that he should desist from this in future.\nYou may watch his work up to the end of March, 1955 and judging from his work and conduct, you may treat him as eligible for being considered for promotion as Assistant Transportation Superintendent in the Selection that may be made after March 1955.\"\nThis was communicated to the petitioner on February 17, 1955.\n6.  In the meantime the petitioner had on February 9, 1955, filed his writ petition under Art. 226 of the Constitution. Mr. Justice Harnam Singh took the view that the petitioner had been punished by being reduced in rank without being given an opportunity to show cause against the action proposed to be taken in regard to him and that consequently the order was invalid for non-compliance with the provisions of Art. 311(2) of the Constitution. On a Letters Patent Appeal filed by the Union of India, a Division Bench  reversed the order of Harnam Singh J. and dismissed the petitioner's writ application. The High Court having subsequently certified that it was a fit case for appeal to this Court, the petitioner has now come up on appeal before us and the question for our decision is whether the order passed by the General Manager on August 19, 1953, amounted to a reduction in rank within the meaning of Art. 311(2) of the Constitution, for if it did then the order must be held to be invalid as the requirements of that article had admittedly not been complied with.\n7.  Under the English Common Law all servants of the Crown held office during the pleasure of the Crown and were liable to be dismissed at any time and without any reason being assigned for such dismissal. No action lay against the Crown in respect of such dismissal, even though it were contrary to the express term of the contract of employment, for the theory was that the Crown could not fetter its future executive action by entering into a contract in matters which concerned the welfare of the State. A servant of the Crown could not at Common Law sue the Crown even for the arrears of his salary, and his claim could be only on the bounty of the Crown. The established notion was that the implied condition between the Crown and its servant was that the latter held his office during the pleasure of the Crown, no matter whether it had been referred to when the engagement had been made or not and that public policy demanded this qualification. . This rule was applied in full force in Lucas v. Lucas and High Commissioner for India 1943 LR(P) 68, where it was held that the sterling overseas pay of an Indian Civil Servant was not a debt which could be attached in satisfaction of an order for the payment of alimony. In the State of Bihar v. Abdul Majid [ 1954 Indlaw SC 61 ], however, this Court held, for reasons stated in the judgment delivered by Mahajan C.J. that the Indian Law has not adopted the rule of English Law on the subject in its entirety.\n8.  Turning to our Statute Law, we find that in the Government of India Act, 1915, as originally enacted, there was no reference to this doctrine of the English Common Law. By s. 45 of the Government of India Act, 1919 (9 & 10 Geo. V. Ch. 101) read with Part I of the second schedule to that Act several sections, including s. 96-B, were introduced into the Government of India Act, 1915 (hereinafter called the \"1915 Act\"). The relevant portion of s. 96-B was as follows\n\"96-B (1). Subject to the provisions of this Act and the rules made thereunder, every person in the civil service of the Crown in India holds office during His Majesty's pleasure, and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed and the Secretary of State in Council may (except so far as he may provide by rules to the contrary) reinstate any person in that service who has been dismissed.\"\n9.  Sub-s. (2) of that section empowered the Secretary of State in Council to make rules for regulating the classification of the Civil Services in India, the method of recruitment, the conditions of service, pay and allowances and discipline and conduct and sub-s. (4) declared that all service rules then in force had been duly made and confirmed the same. The point to be noted is that s. 96-B for the first time gave a statutory recognition and force to the English Common Law rule that the servants of the Crown held their Offices during the pleasure of the Crown and at the same time imposed one important qualification upon the exercise of the Crown's pleasure, namely, that a servant might not be dismissed by an authority subordinate to that by which he had been appointed.\n10.  Section 96-B(1) was reproduced as sub-ss. (1) and (2) of s. 240 of the Government of India Act, 1935 (hereinafter referred to as the 1935 Act) and a new sub-section was added to s. 240 as sub-sec. (3). The relevant portions of s. 240 of the 1935 Act are set out below:\n\" (1) Except as expressly provided by this Act, every person who is a member of a Civil Service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.\n(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.\n(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him;\n11. Then followed a proviso which made sub-s. (3) inapplicable to certain persons and then came sub-s. (4) providing for compensation for premature termination of employment in certain cases which it is not necessary to set out here. The rule making power given by s. 96-B (2) of the 1915 Act was reproduced in s. 241 of the 1935 Act. S. 276 of the 1935 Act, like s. 96-B(4) of the 1915 Act, continued in force all the rules made under the last mentioned Act, while the existing laws were continued by s. 292. It should be noted that the opening words of s. 96-B(1), namely, \"Subject to the provisions of this Act and the rules made thereunder\" were substituted by the words \"Except as expressly provided by this Act.\" The effect of this will be discussed hereafter. Sub-s. (1) adopted the English Common Law rule regarding the pleasure of the Crown but imposed on it two qualifications by two separate sub-sections. Sub-s. (2) reproduced the qualification which had been imposed by s. 96-B(1), namely, that a servant of the class therein mentioned must not be dismissed by an authority subordinate to that by which he had been appointed and sub-s.(3) introduced a still more important qualification on the exercise of the Crown's pleasure, namely, that no such servant must be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. Reduction in rank was not referred to in s. 96-B(1) but was for the first time added to dismissal in sub-s.(3).\n12. Then came our Constitution on January 26, 1950. Part XIV deals with \"Services under the Union and the States\". Chapter I contains seven sections grouped under the heading \"Services\". S. 240(1) of the 1935 Act has been substantially reproduced in Art. 310(1) and sub-ss. (2) and (3) of s. 240 have become Art. 311(1) and (2), while s. 276 of the 1935 Act, which continued the existing rules in force, has been embodied in Art. 313. Arts. 310(1) and 311 omitting the proviso to cl. (2), are as follows:\n\" (1) Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member if a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.\n(1) No person who is a member of civil service of the Union or an all-India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.\n(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him\nProvided..............................................\n(3) If any question arises whether it is reasonably practicable to give any person an opportunity of showing cause under clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank, as the case may be, shall be final.\"\n12.  To summarise : As under s. 96-B(1) of the 1915 Act and s. 240(1) of the 1935 Act, the persons specified therein held office during the pleasure of the Crown, so under Art. 310(1) they hold their office during the pleasure of the President or of the Governor, as the case may be. The opening words of Art. 310(1), namely, \"Except as expressly provided by this Constitution\", reproduce the opening words of s. 240(1) of the 1935 Act, substituting the word \"Constitution\" for the word \"Act\". The exceptions contemplated by the opening words of Art. 310(1) quite clearly refer, inter alia, to Arts. 124, 148, 218 and 324 which respectively provide expressly that the Supreme Court Judges, the Auditor-General, the High Court Judges and the Chief Election Commissioner shall not be removed from his office except by an order of the President passed after an address by each House of Parliament, supported by the requisite majority therein specified, has been presented to him in the same session for such removal on the ground of proved misbehaviour or incapacity. These are clearly exceptions to the rule embodied in Art. 310(1), that public servants hold their office during the pleasure of the President or the Governor, as the case may be. Subject to these exceptions our Constitution, by Art. 310(1), has adopted the English Common Law rule that public servants hold office during the pleasure of the President or Governor, as the case may be and has, by Art. 311, imposed two qualifications on the exercise of such pleasure. Though the two qualifications are set out in a separate article, they quite clearly restrict the operation of the rule embodied in Art. 310(1). In other words the provisions of Art. 311 operate as a proviso to Art. 310(1). All existing laws have been continued by Art. 372, some of which, e.g., the Code of Civil Procedure \n make it possible for a public servant to enforce his claims against the State. It has accordingly been held by this Court in the State of Bihar v. Abdul Majid (supra) that the English Common Law rule regarding the holding of office by public servants only during the pleasure of the Crown has not been adopted by us in its entirely and with all its rigorous implications. Passing on to Art. 311 we find that it gives a two fold protection to persons who come within the article, namely, (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. Incidentally it will be noted that the word \"removed\" has been added after the word \"dismissed\" in both cls. (1) and (2) of Art. 311. Upon Art. 311 two questions arise, namely, (a) who are entitled to the protection and (b) what are the ambit and scope of the protection ?\n13.  Re (a) : Arts. 310 and 311 are two of the articles which have been grouped under the heading \"Services\" in Chapter I of Part XIV which deals with the \"Services under the Union and the States\". It is well known that there are different species of Government services. In the absence of a contract to the contrary the terms of employment of persons in different services are governed by rules made by the appropriate authorities to which reference will hereafter be made. The strength of a service or a part of a service sanctioned as a separate unit is, in the Fundamental Rules, s. III, ch. II, r. 9(4), called the cadre. Each cadre consists of a certain number of posts. According to r. 9(22) of the Fundamental Rules, a permanent post means a post carrying a definite rate of pay sanctioned without limit of time. In each cadre there may be and often is a hierarchy of ranks. Due to rush of business or other exigencies some \"temporary posts\" are often created. A temporary post is defined in r. 9(30) to mean a post carrying a definite rate of pay sanctioned for a limited time. These temporary posts are very often outside the cadre and are usually for one year and are renewed from year to year, although some of them may be created for a certain specified period. The conditions of service of a Government servant appointed to a post, permanent or temporary, are regulated by the terms of the contract of employment, express or implied, and subject thereto, by the rules applicable to the members of the particular service.\n14. The appointment of a Government servant to a permanent post may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a \"lien\" on the post. This \"lien\" is defined in Fundamental Rule s. III, ch. II, r. 9(13) as the title of a Government servant to hold substantively a permanent post, including a tenure post, to which he has been appointed substantively. The Government cannot terminate his service unless it is entitled to do so (1) by virtue of a special term of the contract of employment, e.g., by giving the requisite notice provided by the contract or (2) by the rules governing the conditions of his service, e.g., on attainment of the age of superannuation prescribed by the rules, or on the fulfilment of the conditions for compulsory retirement or, subject to certain safeguards, on the abolition of the post or on being found guilty, after a proper enquiry on notice to him, of misconduct, negligence, inefficiency or any other disqualification. An appointment to a permanent post in Government service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. The period of probation may in some cases be for a fixed period, e.g., for six months or for one year or it may be expressed simply as \"on probation\" without any specification of any period.\n15.  Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation the servant so appointed on trial is found unsuitable and his service is terminated by a notice. An appointment to officiate in a permanent post is usually made when the incumbent substantively holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. Such an officiating appointment comes to an end on the return of the incumbent substantively holding the post from leave in the former case or on a substantive appointment being made to that permanent post in the latter case or on the service of a notice of termination as agreed upon or as may be reasonable under the ordinary law. It is, therefore, quite clear that appointment to a permanent post in a Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. Likewise an appointment to a temporary post in a Government service may be substantive or on probation or on an officiating basis. Here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at any time except in one case, namely, when the appointment to a temporary post is for a definite period. In such a case the servant so appointed acquire a right to his tenure for that period which cannot be put an end to unless there is a special contract entitling the employer to do so on giving the requisite notice or the person so appointed is, on enquiry held on due notice to the servant and after giving him a reasonable opportunity to defend himself, found guilty of misconduct, negligence, inefficiency or any other disqualification and is by way of punishment dismissed or removed from service or reduced in rank. The substantive appointment to a temporary post, under the rules, used to give the servant so appointed certain benefits regarding pay and leave, but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis, that is to say, terminable by notice except where under the rules promulgated in 1949 to which reference will hereafter be made, his service had ripened into what is called a quasi-permanent service.\n16.  The position may, therefore, be summarised as follows : In the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. An appointment to a temporary post for a certain specified period also gives the servant so appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put an end to during that period unless he is, by way of punishment, dismissed or removed from the service. Except in these two cases the appointment to a post, permanent or temporary, on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi-permanent service. The question for our consideration is whether the protections of Art. 311 are available to each of these several categories of Government servants.\n17.  A number of decisions bearing on the question of construction of Arts. 310 and 311 have been cited before us which indicate that there is some difference of opinion between the Judges of the different High Courts and in some cases amongst the Judges of the same High Court. Thus it has been held in some cases that Arts. 310 and 311 do not make any distinction between Government servants who are employed in permanent posts and those who are employed in temporary posts. See Jayanti Prasad v. The State of Uttar Pradesh 1951 AIRAll) 793, G.P. Oak v. The State of Bombay 1957 AIRBom) 175 ], Kishanlal Laxmilal v. The State of Madhya Bharat 1956 AIR(MB) 100 ], Gopi Kishore Prasad v. The State of Bihar 1955 Indlaw BIH 24 ], Punit Lal Saha v. The State of Bihar 1957 Indlaw BIH 36 ] and Yusuf Ali Khan v. Province of the Punjab 1949 Indlaw LAH 25 ]. On the other hand it has been held in some cases that a Government servant cannot be deemed to be a member of a service unless he is permanently absorbed therein, nor can he be deemed to be a holder of such post unless he holds it permanently and that such a Government servant is not entitled to claim the benefit of Art. 311. See Laxminarayan Chiranjilal Bhargava v. The Union of India 1955 ILR(Nag) 893; 1956 AIR(Nag) 113 ], Engineer-in-Chief, Army Head Quarters v. C. A. Gupta Ram 1957 AIR(P&H) 42 ], State of Punjab v. S. Sukhbans Singh 1957 AIR(P&H) 191 ] and Chiranjilal v. Union of India 1956 Indlaw RAJ 93 ]. The cases cited before us also indicate that the preponderance of view is that only a dismissal or removal or reduction in rank by way of penalty attracts the operation of Art. 311(2), but that a termination of service brought about otherwise than by way of punishment, e.g., by the exercise of the right under the terms of employment or under the relevant rules regulating the conditions of service which form part of the terms of employment does not. See Jayanti Prasad v. The State of Uttar Pradesh (supra), Shrinivas Ganesh v. Union of India 58 LR(Bom) 673; 1956 Indlaw MUM 98 ]; Jatindra Nath Biswas v. R. Gupta 1953 Indlaw CAL 679 ], Rabindra Nath Das v. The General Manager, Eastern Railway 1955 (59) CWN 859, Jatindra Nath Mukherjee v. The Government of the Union of India 1957 (61) CWN 815, Ahmad Sheikh v. Ghulam Hassan [A.I.R. (1957) J. & K. 11], Ganesh Balkrishna Deshmukh v. The State of Madhya Bharat 1956 AIR(MB) 172 ], D.P. Ragunath v. The State of Coorg 1956 Indlaw KAR 35 ], M.V. Vichoray v. The State of Madhya Pradesh 1952 AIR(Nag) 288 ], Kamta Charan Srivastava v. Post Master General 1955 Indlaw BIH 25 ] and Sebastian v. State 1955 AIR(TCo) 12 ]. The cases, however, do not lay down or clearly indicate any test for ascertaining whether in any particular case a termination of service is inflicted by way of penalty so as to amount to dismissal, removal or reduction in rank within the meaning of Art. 311(2) or is brought about by the exercise of the right to terminate it arising out of the terms of employment agreed upon between the parties or contained in rules regulating the conditions of service subject to which the employment was made. Further a certain amount of confusion arises because of the indiscriminate use of the words \"temporary\",\"provisional\", \"officiating\" and \"on probation\". We, therefore, consider it right to examine and ascertain for ourselves the scope and effect of the relevant provisions of the Constitution.\n18.  Art. 311 does not, in terms, say that the protections of that article extend only to persons who are permanent members of the services or who hold permanent civil posts. To limit the operation of the protective provisions of this article to these classes of persons will be to add qualifying words to the article which will be contrary to sound principles of interpretation of a Constitution or a statute. In the next place, cl. (2) of Art. 311 refers to \"such person as aforesaid\" and this reference takes us back to cl. (1) of that article which speaks of a \"person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State\". These persons also come within Art. 310(1) which, besides them, also includes persons who are members of a defence service or who hold any post connected with defence. Art. 310 also is not, in terms, confined to persons who are permanent members of the specified services or who hold permanent posts connected with the services therein mentioned. To hold that that article covers only those persons who are permanent members of the specified services or who hold posts connected with the services therein mentioned will be to say that persons, who are not permanent members of those services or who do not hold permanent posts therein, do not hold their respective offices during the pleasure of the President or the Governor, as the case may be - a proposition which obviously cannot stand scrutiny.\n19.  The matter, however, does not rest here. Coming to Art. 311, it is obvious that if that article is limited to persons who are permanent members of the services or who hold permanent civil posts, then the constitutional protection given by cls. (1) and (2) will not extend to persons who officiate in a permanent post or in a temporary post and consequently such persons will be liable to be dismissed or removed by an authority subordinate to that by which they were appointed or be liable to be dismissed, removed or reduced in rank without being given any opportunity to defend themselves. The latter classes of servants require the constitutional protections as much as the other classes do and there is nothing in the language of Art. 311 to indicate that the Constitution makers intended to make any distinction between the two classes. There is no apparent reason for such distinction. It is said that persons who are merely officiating in the posts cannot be said to \"hold\" the post, for they only perform the duties of those posts. The word \"hold\" is also used in Arts. 58 and 66 of the Constitution. There is no reason to think that our Constitution makers intended that the disqualification referred to in cl. (2) of the former and cl. (4) of the latter should extend only to persons who substantively held permanent posts and not to those who held temporary posts and that persons officiating in permanent or temporary posts would be eligible for election as President or Vice-President of India. There could be no rational basis for any such distinction. In our judgment, just as Art. 310, in terms, makes no distinction between permanent and temporary members of the services or between persons holding permanent or temporary posts in the matter of their tenure being dependent upon the pleasure of the President or the Governor, so does Art. 311, in our view, make no distinction between the two classes, both of which are, therefore, within its protections and the decisions holding the contrary view cannot be supported as correct.\n20.  Re : (b) :- Cl. (1) of Art. 311 is quite explicit and hardly requires discussion. The scope and the ambit of that protection are that Government servants of the kinds referred to therein are entitled to the judgment of the authority by which they were appointed or some authority superior to that authority and that they should not be dismissed or removed by a lesser authority in whose judgment they may not have the same faith. The underlying idea obviously is that a provision like this will ensure to them a certain amount of security of tenure. Cl. (2) protects Government servants against being dismissed or removed or reduced in rank without being given a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. It will be noted that in cl. (1) the words \"dismissed\" and \"removed\" have been used while in cl. (2) the words \"dismissed\", \"removed\" and \"reduced in rank\" have been used. The two protections are (1) against being dismissed or removed by an authority subordinate to that by which the appointment had been made and (2) against being dismissed, removed or reduced in rank without being heard. What, then, is the meaning of those expressions \"dismissed\", \"removed\" or \"reduced in rank\"? It has been said in Jayanti Prasad v. The State of Uttar Pradesh (supra) that these are technical words used in cases in which a person's services are terminated by way of punishment. Those expressions, it is urged, have been taken from the service rules, where they were used to denote the three major punishments and it is submitted that those expressions should be read and understood in the same sense and treated as words of art. This leads us to embark upon an examination of the service rules relating to punishments to which the Government servants can be subjected.\n21.  Rule 418 of the Civil Service Regulations of 1902 (hereinafter called the 1902 Rules) provides, inter alia, that the removal of public servants from the service for misconduct, insolvency, inefficiency not due to age or failure to pass a prescribed examination entailed forfeiture of past services. Those 1902 rules, however, did not say under what circumstances or in what manner and by which authority public servants could be removed.\n22.  In exercise of the powers conferred by s. 96-B(2) of the 1915 Act the Secretary of State in Council framed the Civil Service (Governors' Provinces) Classification Rules (hereinafter referred to as the 1920 Classification Rules) which came into force in December, 1920 and were applicable to Government servants serving in the Governor's Provinces. Rule X of these 1920 Classification Rules laid down that a local Government might for good and sufficient reasons (1) censure, (2) reduce to a lower post, (3) withhold promotion from or (4) suspend from service, any officer of an all-India service, provided that no head of the department appointed with the approval of the Governor General in Council would be reduced to a lower post without the sanction of the Governor General in Council. Likewise r. XIII provided that, without prejudice to the provisions of any law for the time being in force, the local Government might for good and sufficient reasons (1) censure, (2) withhold promotion from, (3) reduce to a lower post, (4) suspend, (5) remove, or (6) dismiss any officer holding a post in a provincial or subordinate service or a special appointment. Rule XIV laid down the procedure in cases of dismissal, removal or reduction in the following terms:\n\"Rule XIV - Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, in all cases in which the dismissal, removal or reduction of any officer is ordered, the order shall, except when it is based on facts or conclusions established at a judicial trial, or when the officer concerned has absconded with the accusation hanging over him, be preceded by a properly recorded departmental enquiry. At such an enquiry a definite charge in writing shall be framed in respect of each offence and explained to the accused, the evidence in support of it and any evidence which he may adduce in his defence shall be recorded in his presence and his defence shall be taken down in writing. Each of the charges framed shall be discussed and a finding shall be recorded on each charge.\"\n23.  Thus we find that these 1920 Classification Rules enumerated the different kinds of punishments that could be inflicted on the different classes of Government servants and elaborately prescribed the procedure which had to be followed before those punishments could be inflicted.\n24.  The Secretary of State in Council also promulgated, with effect from January 1, 1922, what are known and what will hereafter be referred to as the Fundamental Rules governing the conditions of service, leave, pay and pension of all Government servants whose pay was debitable to civil estimates in India and to any other class of Government servants in India to which the Secretary of State in Council might by general or special order declare them to be applicable. Like r. 418 of the 1902 Rules, r. 52 of the Fundamental Rules provided that the pay and allowances of Government servants, who were dismissed or removed from service, would cease from the day of such dismissal or removal. Thus the penal consequences of loss of pay and allowances continued to follow dismissal or removal.\n25.  On May 27, 1930, the Secretary of State for India in Council, in exercise of the powers conferred by s. 96-B(2) of the Government of India Act, 1919, made the Civil Services  Rules (hereinafter called the 1930 Classification Rules) which superseded the 1920 Classification Rules. The 1930 Classification Rules, by r. 3, applied to every person in the whole time civil employment of a Government in India (other than a person so employed only occasionally or subject to discharge at less than one month's notice) except certain classes of persons therein specified which included, inter alia, railway servants. Under r. 14 the public services in India were classified under six heads, namely, (1) All-India Services, (2) Central Services Class I, (3) Central Services Class II, (4) Provincial Services, (5) Specialist Services and (6) the Subordinate Services. Under r. 15 read with sch. I the following were the all-India services :- (1) Indian Civil Service, (2) Indian Police Service, (3) Indian Agricultural Service, (4) Indian Educational Service, (5) Indian Forest Service, (6) Indian Forest Engineering Service, (7) Indian Medical Service, (8) Indian Service of Engineers, (9) Indian Veterinary Service and (10) Indian General Service. The Indian Railway Service was not included in the list. Rule 49, as originally framed, provided as follows:\n\"The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely :- (i) Censure, (ii) Withholding of increments or promotion, including stoppage at an efficiency bar, (iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale, (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, (v) Suspension, (vi) Removal from the civil service of the Crown which does not disqualify from future employment, (vii) Dismissal from the Civil Service of the Crown, which, ordinarily disqualifies from future employment.\nExplanation, The discharge -\n(a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appointment, (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule.\"\n26.  The Explanation to r. 49 was amended on March 28, 1948, on February 28, 1950, and finally on January 28, 1955, when the Explanation was numbered as Explanation I and the words in cl. (ii) of r. 49, namely, \"including stoppage at an efficiency bar\" were deleted and Explanation II was added. So amended the Explanations read as follows:\n27.\nExplanation I - The termination of employment - (a) of a person appointed on probation during or at the end of the period of probation, in accordance with the terms of the appointment and the rules governing the probationary service; or\n(b) of a temporary Government servant appointed otherwise than under contract, in accordance with rule 5 of the Central Civil Services (Temporary Service) Rules, 1949; or(c) of a person engaged under a contract does not amount to removal or dismissal within the meaning of this rule or rule 55.\n28. Explanation II : Stopping a Government servant at an efficiency bar in the time scale of his pay on the ground of his unfitness to cross the bar does not amount to withholding of increments or promotion within the meaning of this rule.\n29.  Like r. XIV of the 1920 Classification Rules, r. 55 of the 1930 Classification Rules, as originally framed in 1930, provided that, without prejudice to the Public Servants Enquiries Act, 1850, no order of dismissal, removal or reduction should be passed on a member of a service (other than an order passed on facts which had led to his conviction in a criminal court or by a court martial) unless he had been informed in writing of the grounds on which it was proposed to take action and had been afforded an adequate opportunity of defending himself. Detailed provisions were made as to the grounds on which it was proposed to take action being reduced to the form of a definite charge or charges and for the communication thereof to the officer together with a statement of the allegations on which each charge was based and further provisions were made as to the procedure relating to the filing of the defence, the right to cross-examine and to give evidence in person or to have such witnesses called as he might wish to examine in his defence. Thus in the 1930 Classification Rules, as in the 1920 Classification Rules, were enumerated the different kinds of punishments which could be inflicted on the Government servants of the class to which those rules were applicable and out of those varieties of punishment mentioned in r. 49, three of them, namely, dismissal, removal and reduction in rank, were treated as major punishments and some special procedural protection was prescribed in the interest of the Government servants.\n30.  At the date of the commencement of the Constitution the railway servants were governed by a separate set of rules collected in the two volumes of the Indian Railway Establishment Code. The petitioner is a railway servant and as such is governed by the rules of the Indian Railway Code. Chapter XVII, which is in Volume I, regulated the conduct and discipline of the railway servants and the Railway Fundamental Rules collected in Volume II regulated their conditions of service, pay and deputation. These are similar to and are in pari materia with the 1930 Classification Rules. Rule 1702 of Chapter XVII prescribes eleven distinct penalties which may for good and sufficient reasons be imposed upon railway servants, namely, (1) censure, (2) withholding of the privilege of passes and/or privilege ticket order, (3) fines, including forfeiture or reduction of running allowances in the case of train and running staff, (4) withholding of increments or promotion including stoppage at an efficiency bar, (5) reduction to a lower post or time-scale or to a lower stage in a time scale, (6) recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders, (7) suspension, (8) removal from the service, (9) dismissal from the service, (10) withholding of the whole or part of Provident Fund and Gratuity Rules  and (11) reducing or withholding the maximum pension admissible in accordance with the provisions of the rules governing the grant of pensions.\n31.  There is a Note below this rule to the effect that the discharge (a) of a person appointed on probation, during the period of probation, (b) of a person engaged under contract for a specific period, on the expiration of such period in accordance with the terms of his contract, (c) of a person appointed in a temporary capacity otherwise than under a contract, in accordance with the general conditions of service applicable to temporary employment and of some other persons enumerated therein, do not amount to removal or dismissal within the meaning of r. 1702. Rule 1703 states that while dismissal from service disqualifies a railway servant from future employment, removal from service is not to be considered an absolute disqualification. Rule 1704 specifies the authority competent to impose penalties. Rule 1706 enumerates the causes for which a railway servant may be dismissed from service, namely, (1) conviction by a criminal court or by a court martial, (2) serious misconduct, (3) neglect of duty resulting in or likely to result in loss to Government or to a Railway administration, or danger to the lives of persons using the railway, or (4) insolvency or habitual indebtedness, and (5) obtaining employment by the concealment of his antecedents, which would have prevented his employment in railway service had they been known before his appointment to the authority appointing him. Procedure for dismissal is set out in r. 1707. \"Removal from Service\" is dealt with by r. 1708 and the procedure for removal is regulated by r. 1709. \"Suspension\" is the subject matter of r. 1711 and the procedure for imposing the other penalties is contained in r. 1712. \"Reduction to lower post\" is governed by r. 1714 which enjoins that when a railway servant is reduced for inefficiency or misconduct to a lower post in time-scale or to a lower grade or to a lower stage in a time-scale the authority ordering the reduction must state the period for which it will be effective and whether, on the expiry of that period, it will operate to postpone future increments or to affect the railway servant's seniority and, if so, to what extent. Rule 2310 provides that no pension is to be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency although compassionate allowances may be granted in deserving cases. Thus, the India Railway Establishment Code also, like the 1930 Classification Rules, provides for different punishments and the procedure to be followed for inflicting the same and the three graver punishments of dismissal, removal and reduction are dealt with separately, and special provisions are made regulating the procedure which must be followed before those graver forms of punishments can be inflicted.\n32.  In exercise of the powers conferred by sub-s. (2) of s. 241 of the 1935 Act, the Governor-General made certain rules called the Central Civil Service (Temporary Service) Rules, 1949 (hereinafter referred to as the 1949 Temporary Service Rules). These rules applied to all persons who held a civil post under the Government of India and who were under the rule-making control of the Governor-General, but who did not hold a lien on any post under the Government of India or any Provincial Government, but they did not apply to several categories of persons, including the railway servants. By those rules some protection had been given even to persons who did not substantively hold permanent posts. Thus under r. 6 the services of those persons whose services had ripened into what was therein defined as quasi-permanent service could only be terminated in the same circumstances and in the same manner as those of Government servants in permanent service could be terminated or when the appointing authority certified that reduction had occurred in the number of posts available to Government servants not in temporary service. Further protection was given by the two provisos to that rule. By r. 5, however, the employment of persons holding temporary service could be terminated at any time by a month's notice.\n33.  Just to complete the history of the service rules reference may be made to the all-India Service  Rules, 1955 which were promulgated by the Central Government in September, 1955, after consultation with the State Governments. For our present purpose it is enough to say that rr. 49 and 55 of the 1930 Classification Rules were substantially reproduced in rr. 3 and 5 respectively of these 1955 rules except that the explanation to r. 49 has been elaborated and the results of the judicial decisions have been incorporated therein. In exercise of powers conferred by Art. 309 and Art. 148(5) of the Constitution the President, on February 28, 1957, made the Central Civil Services  Rules, 1957. Rule 13 of these Rules corresponds to r. 49 of the 1930 Classification Rules, and r. 3 of the 1955 Rules and r. 15 substantially reproduces r. 55 of the 1930 Classification Rules and r. 5 of the 1955 Rules.\n34.  The scheme of the Service Rules may now be broadly summarised as follows : They enumerated different punishments which, for good and sufficient reason, might be inflicted on Government servants and they prescribed special procedure which had to be followed before the three major punishments, of dismissal, removal or reduction in rank could be meted out to the Government servants. Thus rr. X and XIII of the 1920 Classification Rules prescribed several kinds of punishments to which the different classes of Government servants could be subjected and r. XIV of those rules laid down certain special procedure for cases in which the three major punishments of dismissal, removal or reduction of an officer were contemplated. Likewise r. 49 of the 1930 Classification Rules reproduced with some additions the punishments prescribed in rr. X and XIII and r. 55 of the 1930 Classification Rules provided similar procedural protection as had been prescribed by r. XIV of the 1920 Classification Rules before the punishments of dismissal, removal or reduction in rank could be inflicted. The scheme of the rules applicable to the railway servants was similar in substance. Thus rr. 1702 to 1714 and 2310 of the Indian Railway Code substantially reproduce the provisions of rr. 49 and 55 of the 1930 Classification Rules. In short, the service rules, out of the several categories of punishments, selected the three graver punishments of dismissal, removal and reduction in rank and laid down special procedure for giving protection to the Government servants against the infliction of those three major punishments.\n35.  It will be recalled that the opening words of s. 96-B(1) of the 1915 Act were - \"Subject to the provisions of this Act and the Rules made thereunder\" and sub-s. (4) confirmed the service rules that were then in force. In spite of this it was held in R. Venkata Rao v. Secretary of State for India [(1936) 64 LR(IA) 55 with reference to the rules made under s. 96-B of the 1915 Act that, while that section assured that the tenure of office, though at pleasure, would not be subject to capricious or arbitrary action but would be regulated by the rules, it gave no right to the appellant, enforceable by action, to hold his office in accordance with those rules. It was held that s. 96-B of the 1915 Act and the rules made thereunder only made provision for the redress of grievances by administrative process. As if to reinforce the effect of that decision, the opening words quoted above were, in s. 240(1) of the 1935 Act, replaced by the words \"Except as expressly otherwise provided by this Act\". The position of the Government servant was, therefore, rather insecure, for is office being held during the pleasure of His Majesty under the 1915 Act as well as under the 1935 Act the rules could not over-ride or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself. The only protection that the Government servant had was that, by virtue of s. 96-B(1), they could not be dismissed by an authority subordinate to that by which they were appointed. The position, however, improved to some extent under the 1935 Act which, by s. 240(3), gave a further protection in addition to that provided in s. 240(2) which reproduced the protection of s. 96-B(1) of the 1915 Act. In other words the substance of the protection provided by r. 55 of the 1930 Classification Rules which require a special procedure to be followed before the three major punishments of dismissal, removal or reduction in rank out of the several punishments enumerated in r. 49 was bodily lifted, as it were, out of the Rules and embodied in the statute itself so as to give a statutory protection to the Government servants. These statutory protections have now become constitutional protections as a result of the reproduction of the provisions of s. 240 in Arts. 310 and 311 of our Constitution.\n36.  It follows from the above discussion that both at the date of the commencement of the 1935 Act and of our Constitution the words \"dismissed\", \"removed\" and \"reduced in rank\", as used in the service rules, were well understood as signifying or denoting the three major punishments which could be inflicted on Government servants. The protection given by the rules to the Government servants against dismissal, removal or reduction in rank, which could not be enforced by action, was incorporated in sub-ss. (1) and (2) of s. 240 to give them a statutory protection by indicating a procedure which had to be followed before the punishments of dismissal, removal or reduction in rank could be imposed on them and which could be enforced in law. These protections have now been incorporated in Art. 311 of our Constitution. The effect of s. 240 of the 1935 Act reproduced in Arts. 310 and 311, as explained by this Court in S.A. Venkataraman v. The Union of India [ 1954 Indlaw SC 151 ], has been to impose a fetter on the right of the Government to inflict the several punishments therein mentioned. Thus under Art. 311(1) the punishments of dismissal, or removal cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Art. 311(2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government servant without giving him a reasonable opportunity to defend himself. The principle embodied in Art. 310(1) that the Government servants hold office during the pleasure of the President or the Governor, as the case may be, is qualified by the provisions of Art. 311 which gave protection to the Government servants. The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Art. 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.\n37.  The forgoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Art. 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Art. 311(2). The premature termination of the service of a servant so appointed will prima facie be a dismissal or removal from service by way of punishment and so within the purview of Art. 311(2). Further, take the case of a person who having been appointed temporarily to a post has been in continuous service for more than three years or has been certified as the appointing authority as fit for employment in a quasi-permanent capacity, such person, under r. 3 of the 1949 Temporary Service Rules, is to be deemed to be in quasi-permanent service which, under r. 6 of those Rules, can be terminated (i) in the circumstances and in the manner in which the employment of a Government servant in a permanent service can be terminated or (ii) when the appointing authority certifies that a reduction has occurred in the number of posts available for Government servants not in permanent service. Thus when the service of a Government servant holding a post temporarily ripens into a quasi-permanent service as defined in the 1949 Temporary Service Rules, he acquires a right to the post although his appointment was initially temporary and, therefore, the termination of his employment otherwise than in accordance with r. 6 of those Rules will deprive him of his right to that post which he acquired under the rules and will prima facie be a punishment and regarded as a dismissal or removal from service so as to attract the application of Art. 311. Except in the three cases just mentioned a Government servant has no right to his post and the termination of service of a Government servant does not, except in those cases, amount to a dismissal or removal by way of punishment. Thus where a person is appointed to a permanent post in a Government service on probation, the termination of his service during or at the end of the period of probation will not ordinarily and by itself be a punishment, for the Government servant, so appointed, has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does not operate as a forfeiture of any right of the servant to hold the post, for he has no such right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment. This aspect of the matter is recognised in the Explanation to r. 49 of the 1930 Classification Rules which correspond to the Note to r. 1702 of the Indian Railway Code and r. 3 of the 1955 Rules and r. 13 of the 1957 Rules, for all those rules expressly say that the termination of such an appointment does not amount to the punishment of dismissal or removal within the meaning of those rules. Likewise if the servant is appointed to officiate in a permanent post or to hold a temporary post other than one for a fixed term, whether substantively or on probation or on an officiating basis, under the general law, the implied term of his employment is that his service may be terminated on reasonable notice and the termination of the service of such a servant will not per se amount to dismissal or removal from service. This principle also has been recognised by the Explanations to r. 49 of the 1930 Classification Rules corresponding to the Note to r. 1702 of the Indian Railway Code and r. 5 of the 1949 Rules and r. 3 of the 1955 Rules and r. 13 of the 1957 Rules. Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has not right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a Government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Art. 311. In other words and broadly speaking, Art. 311(2), will apply to those cases where the Government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the Government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Art. 311.\n38.  It does not, however, follow that, except in the three cases mentioned above, in all other cases termination of service of a Government servant who has no right to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi-permanent status, the termination cannot, in any circumstance, be a dismissal or removal from service by way of punishment. Cases may arise where the Government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. Again if the servant was appointed to a post, permanent or temporary, on the express condition or term that the employment would be terminable on say a month's notice as in the case of Satish Chander Anand v. Union of India [ 1953 Indlaw SC 4 ], then the Government might at any time serve the requisite notice. In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that a simple termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Art. 311(2).\n39.  The position may, therefore, be summed up as follows : Any and every termination of service is not a dismissal, removal or reduction in rank. A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this Court in Satish Chander Anand v. The Union of India (supra). Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract Art. 311(2), as has also been held by this Court in Shyam Lal v. The State of Uttar Pradesh [ 1954 Indlaw SC 30 ]. In either of the two abovementioned cases the termination of the service did not carry with it the penal consequences of loss pay, or allowances under r. 52 of the Fundamental Rules. It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules, to terminate the service the motive operating on the mind of the Government is, as Chagla C.J. has said in Shrinivas Ganesh v. Union of India (supra), wholly irrelevant. In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so Art. 311 is not attracted.\n40.  But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Art. 311 must be complied with. As already stated if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause. A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within Art. 311, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances. It puts an inedible stigma on the officer affecting his future career. A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment.\n41.  But the mere fact that the servant has not title to the post or the rank and the Government has, by contract express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression \"terminate\" or \"discharge\"is not conclusive. In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to. If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Art. 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant.\n42.  Applying the principles discussed above it is quite clear that the petitioner before us was appointed to the higher post on an officiating basis, that is to say, he was appointed to officiate in that post which, according to Indian Railway Code, r. 2003(19) corresponding to F.R. 9(19), means, that he was appointed only to perform the duties of that post. He had no right to continue in that post and under the general law the implied term of such appointment was that it was terminable at any time on reasonable notice by the Government and, therefore, his reduction did not operate as a forfeiture of any right and could not be described as reduction in rank by way of punishment. Nor did this reduction under Note 1 to r. 1702 amount to his dismissal or removal. Further it is quite clear from the orders passed by the General Manager that it did not entail the forfeiture of his chances of future promotion or affect this seniority in his substantive post. In these circumstances there is no escape from the conclusion that the petitioner was not reduced in rank by way of punishment and, therefore, the provisions of Art. 311(2) do not come into play at all. In this view of the matter the petitioner cannot complain that the requirements of Art. 311(2) were not complied with, for those requirements never applied to him. The result, therefore, is that we uphold the decision of the Division Bench, although on somewhat different grounds. This appeal must, therefore, be dismissed with costs.\nBOSE J.\n43.  With great respect I cannot agree that Art. 311 is not attracted in this case.\n44. I agree with my Lord that Art. 311 applies to all classes of Government servants mentioned in it and that it makes no difference whether they are permanent, quasi-permanent, officiating, temporary or on probation. There may be good reasons for having all these shades of difference in the civil services and among those who hold civil posts in the Union and the States but I am clear that the protections afforded by Art. 311 and other parts of the Constitution cannot be nullified or whittled down by clever phrasing and subtle ingenuity.\n45.  I am also clear that \"Except as expressly provided by this Constitution, every person etc.......holds office during the pleasure of the President....... \"\n46.  These words are absolute and leave no room for inference or deduction. The \"pleasure\" can only be controlled by some express provision in the Constitution. One of them is in Art. 310(2), another in Art. 311. There are also others, such as Arts. 124(4) and 217(1)(b), but it is not necessary to enumerate them because I am only concerned with the broad principle here.\n47.  I also agree with my Lord that the words, dismissal, removal and reduction in rank, used in Art. 311 have special meaning. I would not have said this had it not been for ambiguities that arise otherwise. We were faced with that in Satish Chandra Anand v. Union of India [ 1953 Indlaw SC 4 ], where we had to construe the words\"  dismissal\"and\" removal \"and to determine whether they were merely tautologous or had been introduced to emphasise a difference in meaning. According to the dictionary, they mean the same thing or, at any rate, have subtle shades of distinction that are meaningless in the context in which they are used. It was therefore necessary to look to the surrounding circumstances and determine whether they had acquired special technical significance at the date of the Constitution. For that purpose, it was necessary to examine the history of the conditions of service under the Crown and look to the various statutes and rules then in force. Except for that, I do not think it would have been proper to look at the rules for I cannot agree that the Constitution can be construed by reference to Acts of the Legislature and rules framed by some lesser authority and, in particular, to rules made and Acts passed after the Constitution.\n48. I agree with my Lord that Art. 311 applies when penal consequences ensue from the dismissal or removal or reduction in rank, though I prefer to phrase this in wider terms and say that the Article is attracted whenever a \"right\" is infringed in the way in which I shall proceed to explain, for a right can be infringed in that sort of way even when no penal consequences follow.\n49.  I have used the word \"right\" but must hasten to explain that I use it in a special sense. The \"right\" need not necessarily be justiciable nor need it necessarily amount to a contract but, broadly speaking, it must be the sort of \"right\" which, even when not enforceable in the courts, would form a good foundation for a \"Petition of Right\" in England.\n50.  It is as difficult to speak of \"rights\"(except those expressly conferred by the Constitution) when one holds at \"pleasure\" as to speak of \"contracts.\" But they are convenient expressions to convey a particular thought, provided the limitations imposed by the context are not forgotten.\n51.  The word \"contract\" is used in Art. 310(2), but as these \"contracts\" are as much subject to \"pleasure\" as any other engagement of service (except as otherwise provided by the Constitution) they are not contracts in the usual sense of the term; nor are the conditions of service that apply to Government servants who do not serve under a special \"contract\". A contract that can be determined at will despite an express condition to the contrary  is not a contract as usually understood; nor are conditions of service that can be unilaterally varied without the consent of the other \"contracting party\", and even behind his back. But they are convenient terms to convey a thought and that is the sense in which \"contract\" is used in Art. 310(2) and the sense in which it has been used in some Privy Council rulings.\n52.  Now these \"conditions of service\" confer \"rights\" and though the conditions can be varied unilaterally because of the \"pleasure\", they cannot be ignored so long as they are in force; and if a dismissal, or removal, or reduction in rank infringes one of these \"rights\", then, in my judgment, Art. 311 is attracted.\n53.  I said in Satish Chandra Anand case [ 1953 Indlaw SC 4 ], that the President and Government are as free to enter into special contracts as any other person provided they are consistent with the Constitution. That also applies to conditions of service where there are no special \"contracts\". Anything else would be anomalous especially as anyone who serves under the Union or under a State serves at \"pleasure\". It is, therefore, possible for the President to make \"contracts\" that are terminable in a particular way or at a particular time or on the happening of a given event, provided they do not offend the Constitution; and when they are so determined, they can, broadly speaking, be called \"contractual terminations\".\n54.  Two such cases have already been before this court. In Satish Chandra Anand's case (supra), it was a special \"contract\" terminable with a month's notice on either side. In Shyam Lal v. State of Uttar Pradesh [ 1954 Indlaw SC 30 ] it was a condition of service that permitted compulsory retirement at a particular age. Any other variation that does not offend the Constitution would be equally permissible. These conditions confer a \"right\" on one side and correspondingly reduce the ambit of the \"rights\" conferred by the \"contract\" on the other. Therefore, when Government exercises one of their \"rights\" there is no infringement of the other party's \"rights\" because to that extent he has none. It follows that when, in a given case, Government has an option to adopt one of two courses as, for example, to\"  dismiss\"or\" reduce  \"for misconduct and at the same time to terminate or alter the service under a term of the \"contract\" or because of a condition of the service, then, if it chooses to act under the right conferred by the \"contract\", Art. 311 is not attracted even though misconduct is also present and even though that is the real reason for the action taken. But, if Government chooses to adopt such a course, it must be careful to see that no evil consequences will ensure over and beyond those that would ordinarily follow from a normal termination or alteration when there is no misconduct or blame on the part of the person affected. But I repeat that any such condition must be consistent with the Constitution and that no clever artifice or juggling with words can destroy or whittle down the guarantees of Art. 311, or any other Article for that matter.\n55.  To my mind, the test must always be whether evil consequences over and above those that would ensue from a \"contractual termination\" are likely to follow. Were it otherwise, the blameless man against whom no fault can be found would be at a disadvantage. It would be anomalous to hold that a man who has been guilty of misconduct should have greater protection than a blameless individual. But any man who is visited with evil consequences that would not ensure in the case of another similarly placed, but free from blame, can, in my opinion, claim the protection of Art. 311.\n56.  Now what happened in this case ? The appellant was appointed to an All-India service of the Union in August, 1924. He has not been removed or dismissed from service, so he is still a member of an All-India service.\n57.  On July 2, 1951, he was appointed Assistant Superintendent of Railway Telegraphs in class II service. On August 19, 1953, he was relieved of this appointment and received to his substantive post in a class III appointment. There can be no doubt that this was a reduction in rank. The only question is whether it was so within the meaning of Art. 311 for, as I said earlier, these words have special meaning and do not apply in every case where a person is removed from a higher to a lower post.\n58.  The argument on behalf of the Union of India is that the higher post to which the appellant was appointed was temporary and that the appellant was only officiating in it; and rules were cited to show that Government had the right, under those rules, to shift the appellant from a higher to a lower post. I need not consider this argument because we are all agreed that Art. 311 applies even when the appointment is temporary, or officiating and, on the view I take, it does not matter whether Government had what I might call a \"contractual right\" to reduce because even if it had, it exercised it in a way that evoked evil consequences over and above those that would have ensured in a similar case where there was neither misconduct nor blame.\n59.  Our attention was directed to remarks in the appellant's confidential reports and to various administrative notings on his files. All these are, in my opinion, irrelevant. We are only concerned with the operative order made by the proper authority competent to make it and with the consequences that ensue from that order.\n60.  In this case, the order of reversion dated August 19, 1953, is non-committal. It merely says that Shri Bishambar Nath Chopra is appointed to officiate in the appellant's place and that on relief the appellant will revert to a lower rank. That in itself might be harmless but the order does not stand alone and though the various administrative notings are irrelevant, the General Manager's remarks on them, which form the real foundation of the order, cannot be ignored because the sting lies there and the evil consequences of which I speak flow from them. They are really part and parcel of the order and the two must be read together. I say this because, quite obviously, the constitutional guarantees of Art. 311 cannot be evaded by passing a non-committal order that is innocuous and at the same time making another order in secret that would have attracted Art. 311 had it been made openly. I am not suggesting that that was done here or that the object was to evade Art. 311 by a secret manoeuvre. All I am pointing out is that the consequences of Art. 311 cannot be evaded by cleverly splitting up an order into two parts.\n61.  Now what were those remarks ? They were endorsed on the appellant's file on June 11, 1953. The General Manager said\"  I am disappointed to read these reports. He should revert as a subordinate till he makes good the short-comings noticed in this chance of his as an officer.\"\n62.  What does that mean? In plain English it means that he is not to be promoted to a like post until some competent officer chooses to think he has made good his previous short-comings. That is an evil consequence over and above that which would ensure in the case of what I may call again a \"contractual termination\" of the engagement in the higher post.\n63.  It was virtually admitted in the arguments before us that a man who is reduced in rank for misconduct for a particular period, say, one year or two years, is being \"punished\" and therefore Art. 311 will apply. What difference is there if the reduction is for an unspecified period instead of for one that is certain? In both cases, the possibility of promotion is stayed and whether that is a \"punishment\" or a \"penalty\" it is, in my judgment, an evil consequence over and above that which would ensue in a case where the man \"reduced\" is faultless.\n64.  In view of the almost frivolous resort that is sometimes made to Art. 311 I want to guard against too wide an interpretation of what I have said. I do not mean to imply that the reasons that lead to an order of reduction are relevant when there is a \"contractual right\" to act in a particular way; nor do I mean to imply that a mere recording of disappointment or dissatisfaction would attract Art. 311 even if it is followed by a contractual termination of the engagement. All that is not of the essence. The real test is whether additional evil consequences are implicit in the order.\n65.  It is here that I venture to dissent, with the very greatest respect, from my Lord's construction of Art. 311. If I read his judgment aright, I gather that his view, and that of my learned brothers, is that Art. 311 is confined to the penalties prescribed by the various rules and that one must look to all the relevant rules to determine whether the order is intended to operate as a penalty or not. With deep respect, I do not think that the gist of the matter is either the form of the action or the procedure followed; nor do I think it is relevant to determine what operated in the mind of a particular officer. The real hurt does not lie in any of those things but in the consequences that follow and, in my judgment, the protections of Art. 311 are not against harsh words but against hard blows. It is the effect of the order alone that matters; and in my judgment, Art. 311 applies whenever any substantial evil follows over and above a purely \"contractual one\". I do not think the article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty. In my judgment, it does not matter whether evil consequences are one of the \"penalties\" prescribed by the rules or not. The real test is, do they in fact ensue as a consequence of the order made?\nI would allow the appeal with costs.\n66.  BY THE COURT. - In accordance with the opinion of the majority, the appeal is dismissed with costs.\n"}
+{"id": "4efLerNHu9", "title": "", "text": "Gangaram Shantaram Salunkhe v The State Of Maharashtra\nSupreme Court of India\n\n22 November 2006\nAppeal (Crl.) 241 Of 2006\nThe Judgment was delivered by : Markandey Katju, J.\n1.  This appeal has been filed against the impugned judgment and order of the Bombay High Court (Aurangabad Bench) dated 17.10.2005 in Criminal Appeal No.60 of 1992 by which the High Court has affirmed the sentence of life imprisonment imposed by the Trial Court by judgment dated 20.2.1992 under Section 302 read with Section 34 IPC as well as fine of Rs.200/-, in default of which two months R.I. was also awarded. Heard the learned counsel for the parties and perused the record.\nThere were four accused originally before the Trial Court namely\n(1) Anil Shivram Pawar,\n(2) Manilal Hiraram Chaudhari,\n(3) Premraj HIraram Chaudhari and\n(4) Gangaram Shantaram Salunkhe (the appellant in the present case.)\n2. All the four accused had been convicted by the Trial Court but in appeal the High Court acquitted accused no.1 but maintained the conviction of accused no.2, 3 and 4 under Section 302 read with Section 34 I.P.C. In the present case the appellant is only accused no.4 Gangaram Shantaram Salunkhe @ Bapu.\n3.  The gist of the prosecution case is that on 13.2.1991 Bhaulal Jadhav the deceased along with PW4 Lotu Eko Patil was proceeding from Phuphanagari to Jalgaon on bike Bajaj M-80 and when they reached on a way to Jalgaon near Khedi Phata at a distance of 3 kms. the appellants, who were in Maruti Van parked by the side of road got down. It is further alleged that the accused no.2, 3 and 4 then stopped vehicle on which Bhaulal and PW4 were proceeding. The accused No.3 Premraj caught hold Bhaulal and accused no.2 and 4 i.e. Manilal and Gangaram assaulted Bhaulal with knife. The complainant PW4 then tried to rescue Bhaulal, however, accused no.2 Manilal extended threats to PW4 and, therefore, PW4 started proceeding towards Jalgaon. Bhaulal was also trying to save himself, however, the accused no.2 and 3 chased him and assaulted with weapon like knife. PW4 then immediately went to Taluka Police Station Jalgaon on a vehicle of some another person. PW14 Hamid Khan Miya Khan Pathan was holding charge of Station Diary at the relevant time at about 11.45 a.m.. PW4 then disclosed him about the incident that Bhaulal Jadhav is assaulted by Manilal, Premraj and one unknown person. Entry in the Station Diary to that effect was immediately taken by PW14 and Police Constable namely Ukhardu Koli, Sharad Vispute and Pramod, who were on duty at Police Station, were immediately sent to the spot along with PW4, however, by that time injured Bhaulal Jadhav was taken to the hospital in a tractor by one Bharat Jadhav as he was also proceeding to Jalgaon and that tractor was also owned by Bhaulal.\n4.  The Police Constable Ukhardu Koli and others and complainant then proceeded to the hospital. Doctor from hospital examined Bhaulal and declared him dead and, therefore, Police Constable Ukhardu Koli gave information to the Taluka Police Station approximately at about 12.45 noon about the death of Bhaulal and PW14 thereafter recorded complaint of PW4 and on the basis of said complaint registered crime No.16/1991 against the present appellants for the offence punishable under Section 120-B, 302 read with Sections 34 and 341, 506 of I.P.C. PW17 Dhanraj Walukar took up the investigation of the said crime. He visited the hospital, held inquest over the dead body, referred the same for post mortem, recorded statements of certain witnesses. Thereafter investigation of the said crime was taken over by P.I. PW15 P.S. Suryawanshi who arrested accused no.1, interrogated him and attached revolver at his instance. Record further shows that PW15 thereafter handed over investigation of the said crime to PW17 who then made attempts to arrest accused, as the accused no.2, 3 and 4 were absconding he succeeded in arresting accused no.2 Manilal only on 22.3.1991. During the course of interrogation and while accused Manilal was in the custody of Police he made discloser statement, showed his willingness to produce the weapon from the place where it was concealed at Saptashringi Gadh. Memorandum to that effect is prepared. He then took police and panchas to the said place and produced knife. Even the accused also showed his willingness to show the place where he burnt blood stained clothes which were on his person.\n5. He then took police to Nala and shown the place. Panchnama to that effect is prepared and burnt articles were attached by the police. PW17 then made attempt to arrest accused no.3 and 4, however, their whereabouts were not known and some where in the month of July, 1991 both accused no.3 and 4 obtained anticipatory bail. Record further shows that initially police after completing investigation filed charge sheet against accused no.1 and 2 showing the accused no.3 and 4 absconding and after formal arrest of accused no.3 and 4 subsequently charge sheet was submitted and accordingly two separate cases i.e. Sessions Case No.88/1991 and 196/1991 were registered.\n6.  The Trial Court after considering the evidence on record convicted the accused under Section 302 read with Section 34 and Section 120B I.P.C. which conviction was upheld in appeal by the High Court.\n7.  In this case there are two eye witnesses PW4 and PW5. As regards the evidence of PW4, he has stated that at the time of the incident the accused no.2 Manilal Hiraman Chaudhari and accused no.3 Premraj Hiraman Chaudhari and one unknown person got down from the Maruti Van. He has further stated that the unknown man gave a blow with an iron sickle on the head of the deceased. He further stated that thereafter the unknown man got hold of the deceased and accused no. 2 and 3 inflicted blows on him with iron knife and sickle.\n8.  It is submitted by learned counsel for the appellant that since the name of the appellant was not mentioned by PW4 hence the chance of false implication of the appellant in this case cannot be ruled out.\n9.  We do not agree with this contention. PW4 clearly identified the appellant as the unknown man in his deposition before the Trial Court, and there is no reason why PW4 should falsely implicate him.\n10.  The evidence of PW4 is also corroborated by the evidence of PW5, who is a neutral person being the driver of the Maruti Van. There was no reason for PW5 to falsely implicate the appellant. PW5 has clearly stated in his evidence that the appellant inflicted wounds on the deceased.\n11.  The evidence of PW4 and PW5 find further corroboration in the dying declaration made by the deceased to PW6.\n12. Learned counsel for the appellant tried to assail the veracity of the dying declaration through the evidence of the Doctor who conducted the post mortem examination. The Doctor stated that it was possible that after sustaining the wounds the deceased may have gone into an unconscious state instantaneously.\n13.  We note that the Doctor only stated that it was possible that the deceased may have become unconscious instantaneously. However, there is a difference between something being possible and something being probable or certain. PW6 before whom the dying declaration was recorded, stated that the deceased had given his dying declaration before he reached the hospital. Thus, we see no reason to disbelieve the dying declaration.\n14.  The evidence in this case is consistent and is corroborated by the medical evidence. A few mere minor discrepancies here and there do not help the case of the appellant.\nThere is no force in this appeal. Hence, it is dismissed.\nAppeal dismissed\n"}
+{"id": "6UmFFciuDC", "title": "", "text": "Narayanan Nair Raghavan Nair v State of Travancore-Cochin\nSupreme Court of India\n\n26 September 1955\nCr.A. No. 66 of 1955.\nThe Judgment was delivered by: BOSE, J.\n1. The appellant Raghavan has been convicted under S. 302, Indian Penal Code, for murdering one Ayyappan and has been sentenced to death. His younger brother Bhaskaran was also charged but was convicted under S. 324, Indian Penal Code, and sentenced to two years. We are not concerned with him here.\n2. There are six eye-witnesses to the murder, all of whom have been believed by both the Courts. We decline to go behind this evidence and so will proceed at once to assess the case on the basis of the facts found. They are as follows :\n3. Litigation was in progress between the appellant and his grandmother Parvathi Amma. The latter sued the appellant and his brother for partition and separate possession of her share in her son's estate, the son being the father of the appellant and his two brothers (one of whom does not figure in this case).\n4. During the course of proceedings the grandmother Parvathi Amma assigned her interest to her daughter Parvathy Lakshmi Amma (P. W. 10). This Parvathi (P. W. 10) is the widow of the deceased Ayyappan.\n5. After notice to the parties, Balkrishna Pillai (P. W. 5) and Thomas Kuriyan (P. W. 6), the Commissioners appointed to effect the partition, proceeded to the spot, carried out a survey and made certain measurements. While this was in progress, the two accused came on the scene and started pelting Velayudhan Nair (P. W. 1) with stones and abusing him.\nThis Velayudhan Nair is the son-in-law of the deceased Ayyappan. Some of the stones hit the witness and there are injuries on his person to bear this out. Both Courts have accepted this evidence. The only thing they have not been able to determine is which of the several stones that were thrown actually hit the witness. But the fact that the appellant and his brother started the assault by pelting Velayudhan (P. W. 1) with stones and abusing him is accepted.\n6. Velayudhan (P. W. 1) retaliated by slapping the appellant across the cheek. This resulted in a minor scuffle between the two Krishnan Nair (P. W. 14) and the deceased came upto them, and the former (Krishnan Nair) tried to separate them, while the deceased, who was Velayundhan's (P.W. 1's) father-in-law, said to his son-in-law -\n\"Velayudhan! You should not quarrel. I shall find a solution for this.\"\nThe appellant thereupon took a penknife from his waist and hit out at the deceased. The deceased tried to ward off the below and was hit on the back of his left forearm. The appellant struck again and this time the blow landed on the chest and caused the injury which eventually killed the man. In the meanwhile the second accused came up and inflicted a stab wound on the deceased's back with another knife.\nThis could not have caused death though the doctor says it probably aggravated the shock from the fatal wound. Each accused has been held individually liable for the separate injuries caused by him. S. 34 of the Indian Penal Code was not called into play.\n7. The first question that we have to determine is whether this in a case of murder or one under S. 304. We are only concerned with the injury on the chest. But before proceeding to that it is necessary to say that Ayyappan did not die at once. He was carried about a mile on a cot to a waiting jeep and then driven to the hospital.\nHis dying declaration was recorded and then he was handed over to the doctor, P.W. 9, who examined him medically. The doctor though it necessary to operate because he found that a portion of the omentum had protruded through the wound and because there was difficulty in breathing : (\"the power of controlling respiration is lost\").\nThe doctor explains that it was necessary to perform a minor operation to push the omentum back into place as that could not be done from the outside. The operation consisted of extending the wound at its outer portion so as to enable the surgeon to deal with the omentum properly. The patient died some twelve hours later.\n8. It was strenuously argued before us that the wound was not fatal in itself and that if the doctor had not stupidly interfered with the ordinary course of nature all would have been well. Counsel contended that death was due to the negligence of the doctor and not to the wound inflicted by his client.\nHe relied on the following passage in Modis Medical Jurisprudence, 12th Edn. p. 270 and contended that Modi says that the diaphragm is not a vital organ and that injuries to it are not likely to be fatal unless some vital organ in contact with it is also injured. The passage runs -\n\"Wounds of the diaphragm are liable to be produced by penetrating wounds of the chest or of the abdomen. They are not rapidly fatal unless the important organs in contact with it are also wounded.\"\nWe do not read the passage to mean that. It indicates that such injuries are likely to be fatal though not \"rapidly\" so. A later passage supports this:\n\"It\"(rupture)\n\"gives rise to much pain on coughing or deep breathing, and may cause death from severe shock.\"\n9. This is fundamentally a question of fact. Modi's book does not establish that injuries to the diaphragm cannot be fatal : some are and some are not. The question is, therefore, reduced to one of fact in each case. Was the particular injury in question of the fatal or non-fatal type? Both Courts have relied on the doctor who says emphatically that the injury was fatal. We see no. reason to differ from that and can find nothing to indicate negligence.\n10. The dying declaration (Ex. K) states\n\"Regular and proper breathing is not possible for me\".\nand the doctor explains that the power of controlling respiration is lost when the diaphragm is injured and there is a chance of collision between the organs of the chest and the abdomen. The post-mortem' reveals that that is just what happended, the stomach and the omentum had herniated together and the omentum protruded through to hole which the injury had made. The pleura and the diaphragm were both cut and the injury had extended right up to the abdominal cavity. We accepted the finding that the injury was sufficient to cause death in the ordinary course of nature.\n11. It was then argued that this was a case, of a sudden fight and so the case falls within the fourth Exception to S. 300, I.P.C. It is enough to say that the Exception requires that no. undue advantage be taken of the other side. It is impossible to say that there is no. undue advantage when a man stabs an unarmed person who makes no. threatening gestures and merely asks the accused's opponent to stop fighting. Then also, the fight must be with the person who is killed.\nHere the fight was between Velayudhan (P.W. I.) and the appellant. The deceased had no. had in it. He did not even try to separate the assailants. All he did was to ask his son-in-law Velayudhan (P.W. I) to stop fighting and said that he would settle their dispute.\n12. It was argued that this indicated a threat - at any rate, the appellant who was already angered by the slap, was justified in taking the remark in that light and consequently believing that he was going to be attacked by the deceased. But the evidence does not bear that out and the account given by the appellant has not been believed.\nHe says that deceased beat him and grappled with him and that they fell down several times and that eventually the deceased seized him by the neck. All this is a question of fact on which there are concurrent findings. In our opinion, the Exception does not apply and the appellant was rightly convicted under S. 302, Indian Penal Code.\n13. On the question of sentence we feel the lesser sentence is called for because the slap on the face evidently made the appellant, who appears to be a hot blooded man, lose control of himself. That would not afford justification for killing an innocent by-stander who intervenes with a mild admonition to the appellant's adversary to stop fighting.\nBut we feel that on the question of sentence this is not the type of case in which the death sentence is called for. There was no. premeditation and the knife was not ready in the hand but was drawn from the waist after the appellant had been slapped and the quarrel between Velayudhan (P. W. I.) and him had started. We, therefore, reduce the sentence to one of transportation for life.\n14. The appeal succeeds on the question of sentence only.\nAppeal allowed.\n"}
+{"id": "DIq2AnHTmt", "title": "", "text": "Surinder Kumar v Union Territory, Chandigarh\nSupreme Court of India\n\n8 March 1989\nCriminal Appeal No. 530\nof 1978\nThe Judgment was delivered by : A. M. Ahmadi, J.\n1. The appellant, having been convicted by the learned Sessions Judge, Chandigarh under Section 302. I.P.C, and his appeal against conviction having been dismissed by the High Court of Punjab & Haryana, has preferred this appeal by special leave. The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh.\n2. The facts emerging from the evidence of these two main witnesses coupled With the evidence of the other prosecution witnesses may be stated as follows:\n\"PW 5 Mangal Dass was the owner of House No. 3220 in Sector 23-D, Chandigarh, consisting of the ground floor and the first floor. The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted; two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted accused). PW 2 Kesho and his brother Nitya Nand (deceased) belonged to village Narnaul to which PW 4 also belonged. They had come to Chandigarh a couple of years back and were sharing the accommodation with PW 4. As Amrit Lal's marriage was scheduled on December 7, 1974, a request was made to PW 4 by Sikander Lal to permit the use of the kitchen for a few days.\"\nAccordingly, the possession of the kitchen was delivered to Sikander Lal on December 4, 1974 on a clear understanding that it would be returned to PW 4 after the marriage. As the possession of the kitchen was not returned immediately after the marriage, PW 2 and his deceased brother Nitya Nand demanded possession thereof from Sikander Lal. They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975.\nHowever, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family members of Sikander Lal are stated to have re-entered the kitchen. It may here be mentioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge. According to the learned Sessions Judge, the possession of the kitchen was not delivered to PW 4 till January 3, 1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life. On this aspect of the matter, the High Court has not expressed any opinion. On a perusal of the relevant evidence we are inclined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct. On January 3, 1975, at about 7.15 p.m., PW 2 and his deceased brother had an heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen.\n3. In the course of this heated exchange PW 2 is alleged to have showered filthy abuses. Although PW 2 denies this fact, PW 4 has admitted the same. PW 2 also threatened to throw out the utensils and lock the kitchen. Since PW 2 was uttering filthy abuses in the presence of the appellant's sister and Nitya Nand did not restrain him, the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted one blow on the neck of PW 2 causing a bleeding injury. In the melee the appellant inflicted three knife blows to Nitya Nand; one on the shoulder, the other on the elbow and the third on the chest, as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute.\nThe appellant's defense was that on the date of the incident PW 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that PW 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language PW 2 began to throw out the utensils from the kitchen. When the appellant tried to stop him from doing so, PW 2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door. PW 2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question.\nThe courts below have, however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW 2 and the deceased Nitya Nand.\n4. The learned Advocate for the appellant submitted that there was no previous iII-will between the parties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premeditation and hence Exception 4 to Section 300, IPC was clearly attracted. On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception. He submitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner.\nThe appellant's counsel countered by pointing out from the evidence of PW 1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain PW 2.\nException 4 to Section 300 reads as under:\n\"Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.\nExplanation: It is immaterial in such cases which party offers the provocation or commits the first assault.\"\nTo invoke this exception four requirements must be satisfied, namely,\n(i) It was a sudden fight;\n(ii) There was no premeditation;\n(iii) The act was done in a heat of passion; and\n(iv) The assailant had not taken any undue advantage or acted in a cruel manner.\nThe cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger.\nOf course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to handover possession of the kitchen, PW 2 quarreled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other.\nIn the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant.\n5. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2\" below the nipple- It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a self inflicted wound and had therefore acquitted the appellant of the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident.\nFrom the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner.\nUnder these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years.\n6. In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under Section 304 Part I, IPC and is directed to suffer rigorous imprisonment for 7 years.\nAppeal allowed\n"}
+{"id": "9NIQ0Wobtq", "title": "", "text": "Rajindra v Commissioner of Police, Nagpur Division and Others\nSupreme Court of India\n\n27 October 1993\nCr.A. No. 643 of 1993\nThe Order of the Court was as follows :\n1. This appeal arises out of a detention order passed by the State Government in exercise of power conferred by subsection (2) of Section 3 of the National Security Act, 1980. By this order the Commissioner of Police, Nagpur, ordered the detention of Ravi alias Ravindra son of Ishwarsingh Paigawar on the ground that his conduct was prejudicial to public order. The grounds of detention of even date referred to two specific instances, one of September 24, 1992 in regard to an offence registered under Sections 143, 147, 353 and 323 of the Indian Penal Code, the prosecution for which was pending in the Court of the Judicial Magistrate, 1st Class, Court No. 4, Nagpur, under CC No. R. 261/92, dated October 23, 1992. The second instance related to an incident which occurred on January 23, 1993 in regard to which an offence was registered under Sections 186, 187, 353, 506(B), 332 and 365 of the Indian Penal Code which was then under investigation. On the basis of these two instances the Commissioner of Police, Nagpur, concluded that the conduct of detenu was prejudicial to public order.\n2. Immediately after the detention order was passed and the detenu was taken in custody, he made a representation dated February 12, 1993, addressed to the Central Government. This representation was rejected on April 7, 1993. Two contentions were urged in the High Court, namely, (1) that the grounds of detention, which referred to two specific instances, did not justify the conclusion that the detenu was engaged in conduct prejudicial to 'public order' and (2) there was an inordinate delay in dealing with his representation. The High Court, dealing with the second contention in regard to the delay, points out in judgment that the first activity of the Central Government was to send a wireless message to the State Government on March 4, 1993 seeking some details. There is no indication as to how the representation was dealt with between February 12, 1993 and March 4, 1993. If, as conjectured by the learned Additional Solicitor General, the representation though dated February 12, 1993 was actually handed over late for dispatch to the Central Government, that fact should have been specifically pleaded in the counter expected to be filed by the Central Government as well as by the State Government. It may be mentioned that since the Central Government did not file any counter-affidavit in the Habeas Corpus proceeding before the High Court this delay remained unexplained.\nThereafter it appears that in response to the wireless message dated March 4, 1993, the State Government sent its reply on March 6, 1993; yet it took the Central Government over a month to dispose of the representation. The learned Additional Solicitor General tried to explain this delay by saying that further information was received by the State Government on March 18, 1993. In this connection our attention was drawn by the learned Additional Solicitor General to the counter filed on behalf of the State Government wherein the chronology of events was set out. Nowhere we find in that chronology that the Central Government had sought additional information from the State Government. What appears from the chronology is that the Advisory Board took a decision on March 18, 1993, and that information was conveyed to the Central Government. The Central Government has not filed any counter to state that it was not satisfied with the reply sent on March 6, 1993 and had, therefore, sought further information on any specific issue in connection with the detention. The learned Additional Solicitor General tried to satisfy us that between March 18, 1993 and April 7, 1993, there were only nine working days and, therefore, there was no delay but the learned Additional Solicitor General overlooks the fact that the Central Government has failed to explain the delay between March 6, 1993 and March 18, 1993. An effort was made by the learned Additional Solicitor General to persuade us to adjourn the matter to enable the Central Government to produce the file for our perusal. It appears that of late the Central Government does not show that sense of responsibility which is expected of it while dealing with detention cases, namely, of filing a counter in time before the Court dealing with the Habeas Corpus petition.\nNeedless to say that the Central Government should be alive to the need to act promptly in such detention cases where the liberty of an individual is concerned. The Court is expected to go by the pleadings and the Central Government is expected to place the factual material in connection with the detention order by filing a counter-affidavit so that the petitioner has an opportunity to meet with that factual information. The indulgence shown by the courts in pursuing the file seems to have given an impression that the Central Government is under no obligation to file a counteraffidavit to explain the delay. We propose to remove this impression once and for all if it persists and to impress upon the Central Government that it is under obligation to file its counter within the time permitted by the Court failing which the case may go by default. Let it be clearly understood that production of the file is not a substitute for a counter to be filed by the Central Government. The Court peruses the file not to absolve the Central Government of its responsibility to file a counter but to satisfy its conscience if it notices ambiguities in the Government's stand. If the Courts have shown indulgence by perusing the file where affidavit is not filed for good reason, let that indulgence not be misused by construing it to be a licence to dispense with the obligation to file a return. In the instant case no counter was filed and the High Court has taken note thereof but, if we may say so with respect, the Court has shown indulgence by observing that the counter is not filed 'presumably because there is no specific allegation in this behalf in the petition'. Let it be stated that once a representation is made, the detenu is entitled to the representation being dealt with expeditiously. If there is some ex facie delay, the obligation is on the State to explain that delay. There is no question of a specific allegation to be made in the petition except pointing out by placing facts that there has been a delay which ex facie calls for an explanation and that obligation has to be discharged by filing a proper counter and explaining the delay. The Courts have not been unduly strict in insisting that each day's delay must be explained but it is obligatory on the part of the Government to show by filing a counteraffidavit that it had acted promptly in dealing with the representation. What is essential is that the Court must be satisfied that the officers dealing with the representation were not indifferent to the urgency of the situation of the detenu being in jail. We are afraid that in the instant case by failing to file a counter-affidavit and by failing to explain the ex facie delay, the Central Government failed in its duty and, therefore, we see no alternative but to uphold the contention and quash the detention order.\n3. In the result this appeal succeeds. The order of detention is quashed. The detenu will be set at liberty at once unless required in any other case. A copy of this order be sent to the Secretary, Home Department, Government of India, to ensure that no such lapse takes place in future.\nAppeal allowed\n"}
+{"id": "n62tOy4Cqp", "title": "", "text": "Kundanbhai Dulabhai Shaikh and another v Distt. Magistrate, Ahmedabad and Others\nSupreme Court of India\n\n13 February 1996\nWrit Petition (Crl.) 491 of 1995\nThe Judgment was delivered by : S. Saghir Ahmad, J.\n1.  These two petitions filed under Article 32 of the Constitution of India for writs in the nature of habeas corpus were allowed by us a short order on 21st November, 1995. We now proceed to give our reasons.\n2.  Kundanbahi Dulabhai Shaikh, petitioner in Writ Petition (Crl.) No. 491 of 1995 and Rameshchandra Somchand Shah, petitioner in Writ Petition (Crl.) No. 492 of 1995, were detained in jail in pursuance of the orders dated 16th August, 1995, passed by the District Magistrate, Ahmedbad and District Magistrate, Surat, respectively, under section 3(2) of the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (For short, \"Act\"). These orders are contained in Annexure 'A' to the writ petition in both the cases. The grounds of detention were supplied separately, though on the same date, and they are contained in Annexure 'B'.\n3.  Petitioner in Writ Petition (Crl.) No. 491/95 is the owner of a godown where 4 barrels containing 800 litres of kerosene meant for distribution to the public under the Public Distribution Scheme were found loaded on an auto-rickshaw. On enquiry made by the staff of the supply Department, it was revealed that those barrels brought from Shreeji Petroleum Agency, Sarkhej, at the instance of Shri Ishamilbhai who was in possession of the godown and that petitioner was the owner of the auto-rickshaw, Ishamilbhai, on being questioned, have out that kerosene in 4 barrels was loaded at his instance and that he was the tenant of the godown. The grounds contain various other details. Which need not be mentioned here as those details are not relevant to the question on which we intend to dispose of this petition,\n4.  Petitioner in Writ Petition (Crl.) No. 492/95 carries on business in government foodgrains in a fair price shop. He was to sell the wheat at the concessional rate of Rs. per kg. but when his shop as also the registers and documents contained therein were inspected by the staff of the supply Department, it was found that he had committed serious irregularities in the sale of wheat. Consequently, he was detained under Section 3(2) of the Act in order to prevent him from carrying on his activities prejudicial to the maintenance of supplies of essential commodities.\n5.  In both these petitions, the principal contention raised by the counsel for the petitioners is that he representation made by the petitioners against the order of detention were not dealt with expeditiously and were not disposed of by the State Government at the earliest.\n6.  The opposite parties have filed counter-affidavits in which they have denied the allegations made by the petitioners and have set out in detail as to how their representations were dealt with. The reply filed by the State Govt. in Writ Petition (Crl.) No. 491/95, so far as it relates to the disposal of representation, is, as under:\n\" In fact, the above said representation dated 23.8.1995 made by the wife of the detenu Smt. Madinabibi Shaikh was addressed to Chief Minister, Gujarat State, which was received by Chief Minister's office on 25.8.1995, and was sent to the office of Secretary, Food and Civil Supplies Department which was received by the office of the secretary, Food and Civil Supplies Department on 29.8.1995. The said representation thereafter was sent to the Special Branch of Food and Civil Supplies Department. It was received by the concerned Branch, i.e. Special Branch on 1.9.1995. The Special Branch put up a note on the said representation on 6.9.1995, as there were around 40 to 50 representations which were pending for disposal during the said period. They were taken up chronologically. Therefore, the said representation came to be put up for disposal on 6.9.1995 as 5.9.1995 was holiday being Sunday. The file was cleared by Section Officer on 7.9.1995 and submitted by the Branch on 7.9.1995 to the Department which was cleared by Department on 7.9.1995 and was put up before the Deputy Secretary who in turn cleared it on 8.9.1995 and submitted it before the secretary who also cleared it on the same day and submitted the file before the Hon'ble Minister for Civil Supplies for his orders. The file was cleared by the Hon'ble Minister on 12.9.1995 as 9.9.1995 and 10.9.1995 were government holidays. The Minister, Food and Civil Supplies, rejected the request of the petitioner and confinned the detention order. The file was received back by the Special branch from the concerned Minister and by a letter dated 14.9.1995 detenu was informed about the decision taken on the said file of representation. It is, therefore, submitted from, the above facts that there is no delay whatsoever in disposing the representation made by the wife of the detenu so far as the State Government is concerned,\"\n7.  The Central Government, in its first counter affidavit, admitted that the representation dated 2.9.1995 of the petitioner against the order of detention was still pending, though it was received on 4.10.1995 along with the State Government's covering letter dated 27.9.1995. It was indicated that the State Government did not sent its comments in spite of the telegram dated 12.10.95 and the reminder dated 19.10.95. However, in the Additional Affidavit dated 20.11.1995, the Central Government says (through V.K. Jacob, Under Secretary in the Ministry of Civil supplies) that comments from the State Government were received on 6.11.95 and, after due consideration, the representation of the petitioner was rejected on 8.11.95.\n8.  The reply of the State Government with regard to the disposal of representation in Writ Petition (Crl.) No. 492/95 is as under:\n\"That the representation of the petitioner dated 23.8.95 addressed to the Minister for Food and Civil Supplies (Annexure 'D' to the writ petition) was received by the concerned Special Branch of the Food and Civil Supplies Department through the office of the Minister on 29.8.1995. The said representation was put up by the Special Branch along with the file and note on 2.9.1995. The file of the said representation was then submitted before the deponent on 5.9.1995 and the same was cleared by the deponent on the same day. That the deponent forwarded the Concerned file to the Deputy Secretary, Department of Food and Civil Supplies, The Deputy Secretary cleared this file on 6.9.1995 and submitted it before the Secretary who also cleared it on the same day, i.e. 6.9.1995. The representation was then sent to the Minister for Food and Civil Supplies on 7.9.1995 for his orders. The file was received back by the Special Branch on 8.9.1995. It is stated that the decision regarding the rejection of the representation was communicated to the detenu by a letter dated 11.9.1995.\nCopies of the said representation of the petitioner were sent to the Advisory Board on 12.9.95 before its scheduled meeting to be held on 14.9.95.\nA copy of the said representation was also sent to the Central Government by speed post letter dated 19.9.1995. The Central Government asked for the comments of the State Govt. regarding the said representation vide its telex dated 22.9.1995. Soon after the telex was received by the special Branch of the Department, the remarks were translated in English and were sent to the Central Government by speed post letter dated 11.10.1995.\"\n9.  In this case, the Central Government has also filed a counter affidavit in which the plea of the detenu with regard to the delay in the disposal of his representation is answered as follows :\n\"The contents are not admitted hence denied. However a representation dated 23.8.95 of the detenu forwarded by the State Government vide letter dated 19.9.95 was received in the Ministry on 21.9.95. After considering the contents of the representation of the detenu, it was felt necessary that remarks of the State Government should be called for and therefore, I called for the same vide our telegram date 22.9.95. However in spite of our reminders dated 29.9.95 and 5.10.95 the same were received on 18.10.95. The Central Government therefore, examined the representation on the basis of the facts available with them which are sent by the State Government through Reports/grounds of detention through their letter dated 25.8.95. The representation was rejected on 19.10.95 as there was no specific reasons furnished by the detenu that may warrant the revocation of detention order. The decision of the Central Government was conveyed to Supdt. Central Prison, Sabarmati, Ahmedabad on 19.10.95 by telegram with direction to convey to detenu. The State Government was also informed simultaneously on the same day.\"\nArticle 22(5) of the Constitution of India provides as under:\n\"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.\n10. Sub-section (1) of Section 8 of the Act, inter alia, provides as under:\n\" Grounds of order of detention to be disclosed to person affected by the order-(l) when a person is detained in pursuance of a detention order, the authority making the order shall......communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.\"\nThe words \"appropriate Government\" have been defined in Section 2(a) of the Act as under:\n\"2(a). \"appropriate Government\" means, as respects a detention order made by the Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or as respects a person detained under such order, the State Government;\"\n11.   Apart from the above, Section 14 of the Act provides that order of detention may be revoked either by the State Government or by the Central Government. The Central Government can revoke even those orders which have been made by the State Government. The Act also provides that within seven days of the making of a order of detention, copy of the order was also the grounds on which the order was passed shall he sent to the Central Government.\n12.   From the above, it will be sees that the right to make representation against the order of detention is not only a constitutional right but a statutory right as well. Since the Constitution as also the Act specifically provide that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earlier or else the Constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lose both its purpose and meaning.\n13.   We may, at this stage, notice a frivolous contention, raised, on behalf of the respondents that since the authorities to whom the representation can be made have not been specified in Article 22(5) of the Constitution, the right of the detenu of making a representation to the appropriate government cannot be treated to be a constitutional right. Respondents, for this purpose, have placed reliance upon the decision of this court in John Martin v. The State of West Bengal, AIR 1975 SC 775 1975 Indlaw SC 603.\n14.   It will be seen that right to represent has been given not only by Article 22(5) of the Constitution but also by Section 8 of the Act, the right provided under the Act has, therefore, to be treated as an extension of the Constitutional right already available to a detenu under Article 22(5). The legislature has, in fact, given effect to the Constitutional right by providing in Section 8 of the Act that the delenu shall have the right of making a representation to the appropriate government In Amir Shad Khan v. L. Hmingtiana & Ors., [1991] 4 SCC 391991 Indlaw SC 241, this Court, while considering the provisions of the conservation of foreign Exchange and Prevention of Smmoolina Activities Act, 1974 abserved as under.\n\"This clause casts a dual obligation on the Detaining Authority, namely (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the Constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution. It is by virtue of this right conferred on the detenu that the Detaining Authority considers it a duty to inform the appellant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the Constitutional guarantee enshrined in Article 22 (5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires\".\n15.  This decision was considered in Veeramani v. State of Tamil Nadu, [1994] 2 SC 337 1994 Indlaw SC 1450 and it was laid down as under:\n\"The right to make representation against the detention order flows from Art. 22(5). But that article does not say to whom such representation if to be made. Such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, the provisions of the Act have to be seen. Under the T.N. Act any detention order made by the empowered officer shall cease to be in operation if not approved within 12 days. Therefore, the Act never contemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning of Art. 22(5). Therefore, representation to be made by the detenu, after the earlier opportunity was afforded to him, can be only to the Government which has the power to approve or to revoke.\"\n16.   These decision are enough the reject the contention of the respondents.\n17.   Turning now to the main question relating to the early disposal of the representation, we may immediately observed that this Court in a large number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of the detention, and in that situation, continued determination would become bad. This has been the consistent view of this Court all along from its decision in Sk, Abdul Karim & Ors. v. State of West Bengal, [1969] 1 SCC 433 1969 Indlaw SC 262; In re : Durga show & On., [1970] 3 SCC 696 1969 Indlaw SC 497: Jayanarayan Sukul v. State of West Bengal, [1970] 1 SCC 219 1969 Indlaw SC 445; Shait Hanif v. State of West Bengal, [1974] 1 SCC 637 1974 Indlaw SC 30; Raisuddin @ Babu Tamchi v. State of U.P. & Anr. [1983] 4 SCC 537 1983 Indlaw SC 114; Frances Coralie Mullin v. W.C. Khambra & Ors., [1980] 2 SCC 275 1980 Indlaw SC 590; Mohinuddin Alias Main Master v. District Magistrate, Bead & Ors., [1987] 4 SCC 58 1987 Indlaw SC 28885; Rama Dhondu Board v. V.K. Saraf. Commissioner of Police & Ors., [1989] 3. SCC 173 1989 Indlaw SC 618; Aslam Ahmed Zahire Ahmed Saik v. Union of India & Ors., [1989] 3 SCC 277 1989 Indlaw SC 566; Mahesh Kumar Chauhan alias Banti v. Union of India & Ors., [1990] 3 SCC 148 1990 Indlaw SC 52, right upto its reiteration in Gazi Khan alias Chotia v. Slate of Rajasthan and Anr., [1990] 3 SCC 459 1990 Indlaw SC 693.\n18.   Almost all these decisions were against considered in State of Tamil Nadu & Anr. v. A. Vaidivel Alias Sundaravadivel, JT (1992) 5 SC 318 1992 Indlaw SC 201 and above view was reiterated, which was repeated against in K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors., [1991] 1 SCC 476 1991 Indlaw SC 473 and julia Jose Mavli v. Union of India & Ors., (1992) Crl. LJ. 109 1991 Indlaw SC 60 (SC).\n19.   In. Mohitiuddin1987 Indlaw SC 28885 and Ram Dhondu' cases1989 Indlaw SC 618 (supra), it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person, illegal and unconstitutional. In Devi Lal Mahto v. State of Bihar & Anr., AIR (1982) SC 1548 1982 Indlaw SC 139, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days.\n20.   In spite of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the \"liberty and freedom\" to the person whose detention is allowed to become bad by the government itself on account of his representation not being disposal of at the earliest.\n21.  22, In both these cases, we have to read the old story of lethargy of the State Government. In the first case, the representation dated 23.8.95 was received in the office of the Chief Minister on 25.8.95 and was ultimately disposed of on 12.9.95 and the order was communicated to the detenu on 14.9.95. During this period, the file was being processed in the government departments. It is pointed out in the counter-affidavit that the representation, on being received in the office of the Chief Minister on 25.8.95 was sent to the Secretary, Food & Civil Supplies Department, where it was received on 29.8.95. The internal movement of the file thus took four days, The representation was then sent to the Special Branch where it was received on 1.9.95. The representation was taken up by the Special Branch on 6.9.95. The inactivity in taking up the representation for six days is explained by showing in the counter-affidavit that there were about 40 to 50 representations pending for disposal and they were taken up chronologically. This indicates that the representation was placed in the queue and was not given precedence over other representation which are not said, in the counter-affidavit, to relate to detention orders. Even if they related to preventive detention, then such of those which were ready for disposal and in respect of which comments from various departments had been gathered and other formalities completed should have been disposed of immediately and should not have been kept pending on the ground of \"chronological disposal\" by saying that representations filed earlier by other detenus were still to be disposed of. The chronology must be broken as soon as a representation is ready for disposal.\n22.   Apart from the above, the representation dated 2.9.95, which was made to the Central Government could not be disposed of for want of comments from the State Government. It will be noticed that this representation was lying with the State Government from 2.9.95 to 27.9.95 and it was on that date that it was sent to the Central Government which received it on 4.10.95. The Central Government, in spite of its telegrams and reminders, was not furnished the comments by the State Government for over a month. The comments of the State Government were received by the Central Government on 6.11.95 and the representation was disposed of on 8.11.95. This again is a glaring example of the lethargy on the part of the State Government, as a result of which petitioner's representation could not be disposed of expeditiously by the Central Government with the obvious consequence that the petitioner's right under Article 22 (5) of the Constitution read with Section 8 of the Act was violated.\n23.   In the second case also, the representation dated 23.8.95 made by the detenu was forwarded to the Central Government by the State Government under its letter dated 19.9.95 which was received on 21.9.95 by the Central Government, which by its telegram dated 22.9.95 and reminders dated 29.9.95 and 5.10.95 called for the comments of the State Government, The State Government, true to its colours, sent the comments on 18.10.95. The representation was rejected by the Central Government on 19.10.95. The representation thus remained lying with the State Government from 23.8.95 to 19.9.95 and when it was ultimately sent to the Central Government, the comments were not furnished by the State Government till 18.10.95. Thus, in this case also, the guarantee of early disposal of representation set out in Arlicle 22 (5) was infringed\n24.   Blackmarketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm band, but when it conies to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicate in Mahesh Kumar Chauhan's case 1990 Indlaw SC 52(supra) and in an earlier decision in Mahesh kumar Deorah v. District Magistrate, Kamrup & Ors., AIR (1974) SC 183 1973 Indlaw SC 486, in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial.\n25.   Learned Counsel for the respondents referred to us the decision of this Court in State of U.P. v. Shakeel Ahmad, [1996] 1 SCC 337 1995 Indlaw SC 1985 and contended that this Court ignored the delay of over 23 days in the disposal of the representation. This decision is of no help to the respondents as the necessary facts on the basis of which the Court came to the conclusion that there was no delay in the disposal of representation, have not been set out. All that has been said is that \"in the facts and circumstances of this case, the delay in disposal of the representation of about 23 days also is not fatal\". Moreover, the period of detention had already expired and, therefore, what was laid down therein would be of no assistance to the respondents.\n26.   In view of the foregoing discussion we, after having considered the arguments of the counsel on both sides, by our order dated 21st November, 1995, as aforesaid, allowed these writ petitions and have now recorded the reasons therefore.\nPetition allowed\n"}
+{"id": "gAk7Gdp0CX", "title": "", "text": "Rajammal v State of Tamil Nadu and Another\nSupreme Court of India\n\n14 December 1998\nCriminal Appeal No. 1289 of 1998\nThe Judgment was delivered by : K. T. Thomas, J.\nLeave granted.\n1.  Smt. Rajammal, a thirty two year old is kept under detention dubbing her as a \"bootlegger\", as per the detention order passed under Section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (Tamil Nadu Act 14/1982) (hereinafter referred to as the TN Act). The aforesaid order was passed by the Government of Tamil Nadu on 18.12.1997 and she continues to be in detention. A representation forwarded by her on 13.1.1998, was rejected by the Government of Tamil Nadu. She filed a habeas corpus petition before the High Court of Madras in which the detention order was challenged mainly on three grounds. First is that there was delay in considering the representation submitted on her behalf. Second is that her family members were not informed about the place of detention nor even about the detention. The third is that report of the Advisory Board was not submitted within the statutory period of seven days as contemplated under Section 11 of the TN Act. A Division Bench of the Madras High Court has repelled all the aforesaid three contentions and dismissed her petition. This appeal has, therefore, been filed by special leave challenging the judgment of the High Court.\n2.  Learned counsel for the appellant has, however, confined the challenge to the first ground aforementioned, namely, there was delay in considering the representation submitted on behalf of the detenu. The factual position is the following:\n3. The representation was sent by her 13.1.1998 which after passing through the prescribed route reached the Secretary to the Government of Tamil Nadu (Prohibition and Excise Department) on 5.2.1998. The Minister concerned rejected the representation on 14.2.1998. According to the learned counsel, the delay is the interval between the aforesaid two dates and there is no valid justification thereto and hence the detention must be treated as vitiated. Reliance was placed by the learned counsel on the decision of this Court in Mohinuddin vs. District Magistrate, Beed (1987 (4) SCC 58 1987 Indlaw SC 28885).\n4.  In the affidavit sworn to by Sri R. Poornalingam, IAS, Secretary to the Government, (Prohibition and Excise Department) in answer to the contentions of the appellant in the Special Leave Petition the delay is sought to be explained in the following lines:\n\"The remarks were submitted with the relevant files before the Under Secretary of the concerned Department on 6.2.1998. The file was considered by the Under Secretary on 9.2.1998 as 7.2.1998 and 8.2.1998 were holidays in view of Saturday and Sunday and sent to Deputy Secretary on 9.2.1998 itself. Thereafter the file was considered by the Deputy Secretary on 9.2.1998 itself. Thereafter the file was considered by the Deputy Secretary who in turn sent the same to the Minister for Law for approval. The representation was considered and rejected by the Minister for Law on 14.2.1998 as he was away on camp from Headquarter on the dates in between. Thus the file was not unnecessarily held up at any level but moved from level to level promptly.\"\n5.  According to the learned counsel it is no explanation that the Minister concerned was away on camp from the Headquarters, particularly since a similar stand was disapproved in Mohinnuddin's case  1987 Indlaw SC 28885(supra). A two Judge Bench in the said decision declined to accept the explanation that \"the Chief Minister was preoccupied with very important matters of the State which involved tours as well as two Cabinet meetings at Pune on October 28 and 29, 1986 and at Aurangabad on November 11 and 12, 1986.\" Learned Judges further observed that \"in view of the wholly unexplained and unduly long delay in the disposal of the representation by the State Government, the further detention of the appellant must be held illegal and he must be set at liberty forthwith.\"\n6.  Learned counsel also cited an earlier two Judge Bench decision of this Court in Raghavendra Singh vs. Superintendent, District Jail, Kanpur (1986 1 SCC 650 1985 Indlaw SC 22) in which similar delay of a few days in considering the representation was found to have vitiated the detention. That is a case where delay was held be \"wholly unexplained\". A three Judge Bench of this Court in Rumana Begum vs. State of Andhra Pradesh (1993 Supp. 2 SCC 341 1992 Indlaw SC 463) disapproved the delay in considering the representation on the mere ground that the representation on the mere ground that the representation was not addressed to the Chief Secretary. That was a case where representation was sent to the Governor. Hence it was found that there was unexplained and unreasonable delay and consequently the detention was held vitiated. We are reminded of the following observations made by this Court in Kundanbhai Dulabhai Sheikh vs. District Magistrate, Ahmedabad (JT 1996 (2) SC 532 = 1996 (3) SCC 194 1996 Indlaw SC 3216):\n\"In spits of law laid down above by this Court repeatedly over the past three decades, the Executive, namely, the State Government and its officers continue to behave in their old, lethargic fashion and like all other files rusting in the secretariat for various reasons including red tapism, the representation made by a person deprived of his liberty, continue to be dealt with in the same fashion. The government and its officers will not give up their habit of maintaining a consistent attitude of lethargy. So also, this Court will not hesitate in quashing the order of detention to restore the 'liberty and freedom' to the person whose detention is allowed to become bad by the government itself on account of his representation not being disposed of at the earliest.\"\n7.  It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words \"as soon as may be\" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation.\n8. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India and others (1991 (1) SC 476 1991 Indlaw SC 473). The following observations of the Bench can profitable be extracted here: \"IT is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words \"as soon as may be\" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay.\n9.  However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the Constitutional imperative and it would render the continued detention impermissible and illegal.\" The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, it any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.\n10.  What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9.2.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.2.1998. Though there is explanation for the delay till 9.2.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.\n11.  Mr. V.R. Reddy, learned senior counsel for the State of Tamil Nadu referred to a decision of this Court in Mrs. U. Vikayalakshmi vs. State of Tamil Nadu and another (AIR 1994 SC 165 1992 Indlaw SC 64) to contend that it could not be said that there was any delay in considering the representation from 9.2.1998 to 14.2.1998. In that case also the detention was under Section 3(1) of the Act. The detenu made representation again the detention which was received by the State Government conveyed the rejection of the representation on 23.6.1992. The detenu received the rejection order on 26.6.1992. It was submitted that there was an inordinate long delay in dealing with the representation and that the detenu was entitled to have the detention order quashed. This Court noticed that in the counter affidavit filed by the Deputy Secretary to the State Government the manner in which the representation was dealt with after its receipt on 18.5.1992 had been stated in detail. The Court then observed:\n\"We have perused the stages through which the file containing the representation was dealt with promptly and there was no indifference lethargy or negligence in dealing with the same. The file was not unnecessarily held up at any level but moved from level to level promptly. We are, therefore, satisfied that the explanation tendered by the Deputy Secretary in this behalf is acceptable and does not detray any lack of sense or urgency in dealing with the representation. We, therefore, do not see any merit in the first contention.\"\n12.  In the present case, however, there is no explanation forth coming as to why the representation could not be dealt with by the Minister concerned from 9.2.1998 to 14.2.1998.\n13.  We are, therefore, of the opinion that the delay from 9.2.1998 to 14.2.1998 remains unexplained and such unexplained delay has vitiated further detention of the detenu. The corollary thereof is that further detention must necessarily be disallowed. We therefore allow this appeal and set aside the impugned judgment. We direct the appellant-detenu to be set at large forthwith.\nAppeal allowed\n"}
+{"id": "RBT7qYHDBT", "title": "", "text": "S. V. Chandra Pandian and Others v S. V. Sivalinga Nadar and Others\nSupreme Court of India\n\n11 January 1993\nC.As. Nos. 17491752 of 1992\nThe Judgment was delivered by : Hon'ble Justice A. M. Ahmadi\n1. The four appellants and respondents 1 and 2 are brothers. They were carrying on business in partnership in the name and style of Messers Sivalinga Nadar and Brothers and S.V.S. Oil Mills, both partnerships being registered under the Partnership Act, 1932. Most of the properties were acquired by the firm of Sivalinag Nadar and Brothers. The firm of Messers S.V.S. Oil Mills merely had leasehold rights in the parcel of land belonging to the first-named firm on which the superstructure of the oil miff stood. Both the partnerships were of fixed durations. Disputes arose between the six brothers in regard to the business carried on 'in partnership in the aforesaid two names. For the resolution of these disputes the six brothers entered into an arbitration agreement dated 8th October, 1981, which was as under :\n\"We are carrying on business in Partnership together with other partners under several partnership names. We are also holding shares and Managing the Public Limited Company, namely. The Madras Vanaspati Ltd., at Villupuram. Disputes have arisen among us with respect to the several business concerns, immoveable and moveable properties standing in our names as well as other relatives. We are hereby referring all our disputes, the details of which would be given by us shortly to you, namely, Sri B.B. Naidu, Sri K.R. Ramamani and Sri Seatharaman. We agree to abide by your award as to our disputes.\"\n2. All the three arbitrators were fairly well-conversant with the business carried on in different names by the aforesaid two partnership firms; the first two being their Tax Consultants and the third being their Chartered Accountant. The parties, therefore, had complete faith and trust in their objectivity and impartiality.\n3. The arbitrators accepted and entered upon the reference and after giving the disputants full and complete opportunity to place their rival points of view before them, circulated a draft award and after considering the response and reaction of the disputants thereon made their final award on 9th July, 1984. The concluding part of the award reads as under :\n\"We hereby direct that each of the parties be allotted the schedule of properties mentioned in the various schedules A to F annexed to this award.\nS.V. Sivalinga Nadar- Schedule 'A'\nS.V. Harikrishnan- Schedule 'B'\nS.V. Chandrapandian- Schedule 'C'\nS.V. Kasilingam Schedule 'D'\nS.V. Ramchandran- Schedule 'E'\nS.V. Natesan Schedule 'F\nWe direct that the firms of M/s Sivalinga Nadar & Bros. and M/s S.V.S. Oil Mills and also the joint house property Rent Account be dissolved as at the close of business on 14th July, 1984.\"\nThe arbitrators then proceed to set out the properties belonging to or claimed to belong to the aforesaid two firms in paragraphs 6 to 24 of their award. Paragraph 25 is 'a residuary clause which says that any asset left out or realised hereafter or any liability found due other than those reflected in the account books, shall, likewise, be divided and/or borne equally among the disputants. deal with the use of the firm names. refers to the claim of Smt. C. Kanthimathi, sister of the six partners, with which we are not concerned in these appeals.  refers to the business carried on by the relatives of the disputants in the names of Sri Brahmasakthi Agency and Srimagal Finance Corporation. The arbitrators have recognised the fact that even though the said business is not carried on by the disputants it would be desirable to dissolve the said firms also we.f. 24th July, 1984 in the larger interest of peace and amity among the disputants and their relatives. to the properties standing in the name of the father of the six disputants, i.e., partners of the two firms in question. It is stated that although initially the disputants had shown an inclination to refer the dispute concerning the properties owned by their father to the arbitration of the three arbitrators but when it was noticed that the deceased had left a will disposing of the properties the need for resolution of the dispute through arbitration did not survive. the arbitrators have determined their fees and have directed the disputants to bear them equally. At the end of the award the properties falling to the share of the disputants have been set out in detail in Schedules A to F referred to earlier.\n4. After the award was made on 9th July, 1984, O.P. No. 230 of 1984 was filed by S.V. Chandrapandian & Ors. for a direction to the arbitrators to file their award in Court which was done. Thereupon, the applicants S.V. Chanrapandian and others filed a Misc. Application No. 3503 of 1984 requesting the Court to pass a decree in terms of the award. Before orders could be passed on that application, O.P. Nos. 247 & 275 of 1984 were filed by S.V. Sivalinga Nadar and S.V. Harikrishnan respectively u/s. 30 of the Arbitration Act to set aside the award. The said applications came up for hearing before a learned Single Judge of the High Court. Various points were raised and decided by the learned Single Judge but it would be sufficient for our purpose to refer to the one which we are called upon to decide in these group of appeals. That is to be found in the judgment of the learned Single Judge. The contention urged was that having regard to the allotment of partnership properties under the award, it was incumbent that the award should have been registered as required by S. 17(1) of the Registration Act and since it lacked registration, the Court had no jurisdiction to make it the rule of the Court and grant a decree in terms thereof.\n5. The learned Single Judge answered the aforesaid contention in his judgment as under :\n\"The learned counsel for the respondents also contended that Award falls under Schedule I Art. 12 of the Stamp Act and the allocation of properties owned by partnership firm on dissolution to the erstwhile partners is not partition of immoveable properties. In this connection, learned counsel for the respondents placed reliance in the decision reported in which decision has been confirmed in Addanki Narayanappa V. Bhaskara Kiishnappa. It was submitted by the learned counsel for the respondents that the contentions with regard to stamp and registration put forward by the petitioner cannot be accepted. It is to be pointed out that the Award has been submitted for registration long ago on 27-10.1984 itself and it is stamped and if there is any deficiency, the Registering Authority could direct proper stamp to be affixed and therefore I feel there could be no impediment for the Award being made a rule of the Court and a decree being passed in terms of the Award as contended by the learned counsel for the respondents.\"\n6. The learned Single Judge thereafter proceeded to make the final order in  the judgment in the following terms :\n\"Thus on a careful consideration of the materials available and the contentions of either side it has to be decided that Application No. 3505 of 1984 in O.P. No. 230/84 filed by the petitioners therein praying for a decree in terms of the arbitration Award dated 9.7.1984 has to be allowed and O.P. Nos. 247 and 275 of 1984 and the application filed in. those two petitions, i.e., Application Nos. 3474, 3476, 5030, 5031, 5032, 2827, 2828,3773, 3762, 3874 of 1984 and 4886 and 4887 of 1985, are dismissed. The petitioner in O P. No. 230/84 and the applicants in Application No. 3503/84 are directed to take steps for getting the Award registered. The parties in all these proceedings are directed to bear their own costs.\"\n7. It may here be mentioned that after the making of the award one of the arbitrators Sri B.B. Naidu passed away on 20th October, 1984. At the request of some of the parties the surviving arbitrators presented the award before the District Registrar, Madras, for registration on 27.10.84. Even though. the signature of the deceased arbitrator was identified by the surviving arbitrators the document was kept pending for registration. In the meantime, on 23rd January, 1987, advocate for Sivalinga Nadar served notice on the Registrar not to register the document and threatened to take proceedings in Court if the document was registered. It will thus be seen that the registration of the document was blocked by one of the disputants Sivalinga Nadar on the premise that the High Court had in O.P. No. 247/84 granted a stay against the operation of the award on 5th September, 1984.\n8. Against the judgment of the learned Single Judge, the matter was carried in appeal to a Division Bench of the High Court of Madras. The Division Bench of the High Court reversed the aforesaid finding recorded by the learned Single Judge and came to the conclusion that the award required registration u/s. 17(1) of the Registration Act. In this view that it took, it did not think it necessary to go into the other contentions dealt with by the learned Single Judge. It held that since the award required registration and was in fact not registered no proceeding for making the award the rule of the Court could be entertained because in the absence of a valid award the Court had no jurisdiction to grant a decree in term of the award. It, however, took note of the fact that the award was presented for registration but on account of the conduct of one of the disputants it could not be registered as the Registering Authority was threatened with civil consequences. The correspondence in this behalf was sought to be placed on record as additional evidence but the Division Bench though that would not alter the situation since the fact remained that the award was not registered even on the dated of its judgment. It, therefore, made the following observation in the judgment:\n\"It, however, does not mean that if the award is validly registered and presented to be made a rule of the Court in accordance with law, the Court cannot entertain the same.\"\n9. In this view of the matter the Division Bench allowed the appeal and set aside the impugned judgment of the learned Single Judge and held that as the award was not registered it could not be made the rule of the Court. It made no order as to costs. It is against this decision of the Division Bench of the High Court that present appeals by special leave (we also grant special leave in S.L.P. No. 9408 of 1992) have been filed.\n10. Before we examine the contention based on s. 17 of the Registration Act we may notice a few relevant provisions bearing on the interest of partners in partnership property as found in the Partnership Act, 1932. S. 4 defines partnership a,-, a relationship between persons who have agreed to share the profit of a business carried on by all or any of them acting for all. S. 14 provides that subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business. It is also clarified that unless the contrary intention appears, property and rights and interest in property acquired with money belonging to the firm shall be deemed to have been acquired for the firm. S. 15 says that the property of the firm shall be held and used by the partners exclusively for the purposes of the business subject of course to contract between the partners. Says section 18, subject to the provisions of the Act, a partner is the agent of the firm for the purposes of the business of the firm. U/s. 19 the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, shall bind the firm. This authority to bind the firm is termed as \"implied authority\". S. 22 lays down that in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm name, or in any other manner expressing or implying an intention to bind the firm. S. 29 deals with the rights of transferee of a partner's interest. Sub-s. (1) thereof provides that such a transferee will not have the same rights as the transferor-partner but he would be entitled to receive the share of profits of his transferor on the account of profits agreed to by the partners. Sub-s. (2) next provides that upon dissolution of the firm or upon a transferor- partner ceasing to be a partner, the transferee would be entitled against the remaining partners to receive the share of the assets of the firm to which the transferor-partner was entitled and will also be entitled to an account as from the date of dissolution. S. 30 deals with the case of a minor admitted to the, benefits of partnership. Such a minor is given a right to his share of the property of the firm and also a right to share in the profits of the firm as may be agreed upon business share is made liable for the acts of the firm though he would not be personally liable for the same. Sub-section (4), however, debars a minor from suing the partners for an account or for his share of the property or profits of the firm except when he severe his connections with the firm, in which case for determining his share the law requires a valuation of his share in the property of the firm to be made in accordance with Section 48. Ss. 31 to 38 relate to incoming and outgoing partners. S. 32 deals with the consequences of retirement. Sub-ss. (2) and (3) of S. 32 deal with the consequences of retirement while Ss. 36 and 37 speak about the rights of an outgoing partner to carry on competing business and in certain cases to share subsequent profits. Chapter VI deals with the dissolution of a firm. S. 40 provides that a firm may be dissolved with the consent of all the partners or in accordance with the contract between the partners. Ss. 41 and 42 deal with dissolution on the happening of certain events while S. 43 permits a partner to dissolve a firm by notice if it is a partnership at will. S. 44 speaks of dissolution through Court. S. 48 indicates the mode of settlement of accounts between the partners on dissolution while S. 49 posits that where there are joint debts due from the firm, and also separate debts due from any partner, the property of the firm shall be applied in the first instance in payment of the debts of the firm, and, if there is any surplus, then the share of each partner shall be applied in payment of his separate debts or paid to him. The separate property of any partner shall be applied first in the payment of his separate debts, and the surplus (if any) in the payment of the debts of the firm. Chapter VII deals with the registration of firm, etc,. and Chapter VIII contains the saving clause.\n11. The above provisions make it clear that regardless of the character of the property brought in by the partners on the constitution of the partnership firm or that which is acquired in the course of business of the partnership, such property shall become the property of the firm and an individual partner shall only be entitled to his share of profits, if any, accruing to the partnership from the realisation of this property and upon dissolution of the partnership to a share in the money representing the value of the property. It is well-settled that the firm is not a legal entity, it has no legal existence, it is merely a compendious name and hence the partnership property would vest in all the partners of the firm.\n12. Accordingly, each and every partner of the firm would have an interest in the property or asset of the firm but during its subsistence no partner can deal with any portion of the property as belonging to him, nor can be assign his interest in any specific item thereof to anyone. By virtue of the implied authority conferred as agent of the firm his action would bind the firm if it is done to carry on, in the usual way, the business of the kind carried on by the firm but the act or instrument by which the firm is sought to be bound must be done or executed in the firm name or in any other manner expressing or implying an intention to bind the firm. His right is merely to obtain such profits, if any, as may fall to his share upon the dissolution of the firm which remain after satisfying the liabilities set out in the various sub- cls. (i) to (iv) of clause (b) of s. 48 of the Act. In the present case the six brothers who were carrying on business in partnership fell out on account of disputes which they could not resolve inter se. The partnership being of fixed durations could not be dissolved by any partner by notice. As they could not resolve their disputes they decided to resort to arbitration. The three arbitrators chosen by them were men of their confidence and they after giving the partners full and complete opportunity took care to first circulate a proposed award to ascertain the reaction of the disputants therein. The letter written to the arbitrators by S.V. Sivalinga Nadar dated 16th February, 1983 indicates that he was quite satisfied with the hearing given by the arbitrators. He was also by and large satisfied with the proposed award but thought it warranted certain adjustments to make it acceptable and rationale. He was of the view that the award should provide for the reallocation of the shareholdings of Madras Vanaspati Ltd., whereas Brahmaksthi Tin Factory owned by his sons should be kept out of the purview of the arbitrators since it was not the subject matter of arbitration. Then he raised some objection as to the percentage of his share and the amount found due to him. In the subsequent letter written on 9th September, 1983 he has reiterated these very objections while raising certain questions regarding valuation of partnership properties. Even the application filed u/ss. 30 and 33 of the Arbitration Act in the High Court the objections to the award as enumerated and mainly concerned (i) the conduct of the arbitrators who, it is alleged, acted negligently, with bias and against principles of natural justice (ii) deliberate act in leaving out certain proper- ties from consideration e.g., shareholdings of Madras Vanaspati Ltd., stock-in-trade and cash deposits, the properties of Velayudha Perumal Nadar, etc., and (iii) failure to grant him a higher share to which he was entitled. No contention was raised regarding the want of registration of the award. However, being a question of law, the learned Single Judge entertained the plea and rejected it but it found favour with the Division Bench. We now think it convenient to reproduce the relevant part of S. 17 of the Registration Act :\n\" The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act, No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely\n(a) instruments of gift of immoveable property;\n(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property;\n(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and\n(d) leases of immoveable property from year to year, or for any terms exceeding one year, or reserving a yearly rent;\n(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.\"The submission made in this behalf before the Courts below was that the award involved a partition of immoveable properties as a consequence of dissolution of the firms and since the value of the immoveable properties which are the subject matter of the award indisputably exceed the value of Rs. 100, the award was compulsorily registrable in view of the mandatory nature of the language of S. 17(1) which uses the expression 'shall be registered'. On the mandatory character of the provision there is no dispute. The question which requires determination is whether on the dissolution of the partnership the distribution of the assets of the firm comprising both moveable and immoveable properties after meeting its obligations on settlement of accounts amongst the partners of the firm in proportion to their respective shares amounts to a partition of immoveable properties or a relinquishment or extinguishment of a share in immoveable property requiring registration under S. 17 of the Registration Act if the allocation includes immoveable property of the value of Rs. 100 and above? In other words the question to the considered is whether the interest of a partner in partnership assets is to be treated as moveable property or both moveable and immoveable depending on the character of the property for the purposes of S. 17 of the Registration Act? This question has been the subject matter of decision in a few cases. In Addanki Narayanappa & Anr. v. Bhaskara Krishtappa & 13 Ors., [1966] 3 SCR 400 1966 Indlaw SC 382 the members of two Joint Hindu families, the Addanki family and the Bhaskara family, had entered into partnership for carrying on business of hulling rice, etc.; each family having half share in that business. The capital of the partnership comprised, among other things, certain lands belonging to the two families. The firm acquired more lands in the course of business. Differences arose whereupon two members of the Addanki family filed a suit for dissolution of the partnership and accounts. All the members of the two families were made parties to the suit either as plaintiffs or as defendants. The Bhaskara family contended in defence that the partnership was dissolved in 1936 and accounts were settled between the two families under a karar executed in favour of Bhaskara Gurappa Setty, the karta of the Bhaskara family, by five members of the Addanki family representing that family. The defendants, therefore, contended that the plaintiffs had no cause of action and the suit for dissolution of partnership and accounts was not maintainable. The relevant part of the agreement Karar reads as under :\n\"As disputes have arisen in our family regarding partition, it is not possible to carry on the business of to make investment in furture. Moreover, you yourself have undertaken to discharge some of the debts payable by us in the coastal parts in connection with our private business. Therefore, from this day onwards we have closed the joint business. So, from this day onwards, we have given up (our) share in the machine etc., and in the business, and we have made over the same to you alone completely by way of adjustment. You yourself shall carry on the business without ourselves having anything to do with the profit and loss. Herefor, you have given up to us the property forming our Venkatasubbayya's share which you have purchased and delivered possession of the same to us even previously. In case you want to execute and deliver a proper document in respect of the share which we have given to you, we shall at you own expense, execute and deliver a document registered.\"\n13. Ex-facie this document disclosed that the partnership business had come to a halt and the Addanki family had given up their share in the machine, etc., in the business and had made it over to the Bhaskara family. It also recites that the Addanki family had already received certain properties purchased by the partnership as its share in the partnership assets. The submission was that since the partnership assets included immovable property and the document recorded relinquishment by the members of the Addanki family of their interest therein which exceeded Rs. 100 in value, the document required registration under S. 17(1) (c) of the Registation Act. After referring to the provisions of law, treatise and the case law, both of English and Indian Courts, this Court reproduced the following passage from the decision in Ajudhia Pershad Ram Pershad v. Sham Sunder, AIR 1947 Lahore 13 with approval:\n\"These Sections require that the debts and liabilities should first be met out of the firm property and thereafter the assets should be applied in ratable payment to each partner of what is due to him firstly on account of advances as distinguished from capital and, secondly on account of capital, the residue, if any, being divided ratably among all the partners. It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm and it will, therefore, be correct to say that, for the purposes of the Indian Partnership Act, and irrespective of any mutual agreement between the partners, the share of each partner is, in the words of Lindley : his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged.\"\n14. In Commissioner of Income-Tax, West Bengal, Calcutta v. Juggilal Kamalapat, [1967] 1 SCR 784 = AIR 1967 SC 401 1966 Indlaw SC 151 the facts were that three brothers and one J. entered into a partnership business. The firm owned both moveable and immoveable properties. Sometime thereafter the three brothers created a Trust with themselves as the first three trustees and simultaneously executed a deed of relinquishment relinquishing their rights in and claims to all the properties and assets of the firm in favour of J and of themselves in the capacity of trustees. Thereafter a new partnership firm was constituted between J and the Trust with specified shares. The Trust brought a sum of Rs. 50,000 as its capital in the new firm. The new firm applied for registration under Section 26-A of the Income Tax Act, 1922 but the application was rejected by the authorities. The Tribunal held that the deed of relinquishment being unregistered could not legally transfer the rights and the title to the immoveable properties owned by the original firm to the Trust. Since the immoveable properties were not separable from the other business assets it held that there was no legal transfer of any portion of the business assets of the original firm in favour of the Trust. A reference was made to the High Court on the question whether the new partnership legally came into existence and as such should be registered under Section 26-A. The High Court held that there was no impediment to its registration. The matter was brought in appeal before this Court. This Court pointed out that the deed of relinquishment was in respect of individual interests of the three brothers in the assets of the partnership firm in favour of the Trust and consequently, did not require registration, even though the assets of the partnership included immoveable property. In taking this view reliance was placed on the decision, Ajudhia Pershad's case (supra) as well as the decision of this Court in Addanki Narayanappa & Anr. 1966 Indlaw SC 382 (Supra). Again in CIT Madhya Pradesh v. Dawas Cine Corporation, [1968] 2 SCR 173 = AIR 1968 SC 676 1967 Indlaw SC 384 the partnership firm was dissolved and on dissolution it was agreed between the partners that the theaters should be returned to their original owners who had brought them into the books of the partnership as its assets. In the books of accounts of the partnership the assets were shown as taken over on October 1. 1951 at the original price less depreciation, the depreciation being equally divided between the two partners. In the proceedings for the assessment year 1952-53 the firm was treated as a registered firm. The Appellate Tribunal held that restoration of the two theaters to the original owners amounted to transfer by the firm and the entries adjusting the depreciation and writing off the assets at the original value amounted to total recoupment of the entire depreciation by the partnership and on that account the second proviso to s. 10(2)(vii) of the I.T. Act, 1922 applied. The High Court in reference upturned the decision of the Tribunal and held in favour of the assessee against which the Revenue appealed to this Court. This Court after referring to ss. 46 and 48 of the Partnership Act held that on the dissolution of the partnership each theatre must be deemed to be returned to the original owner in satisfaction partially or wholly of his claim to a share in the residue of the assets after discharging the debts and other obligations. In law there was no sale or transfer by the partnership to the individual partners in consideration of their respective share in the residue. In taking this view reliance was once again placed on the decision of this court in Addanki Narayanappa & Anr. (supra) In CIT. U.P. v. Bankey Lal Vaidya, AIR 1971 SC 2270 1971 Indlaw SC 114 this court pointed out that on dissolution of partnership the assets of the firm are valued and the partner is paid a certain amount in lieu of his share of the assets, the transaction is not a sale, exchange or transfer of assets of the firm and the amount received by the partner cannot be taxed as capital gains. In taking this view reliance was placed on the decision of this Court in CIT. Madhya Pradesh v. Dewas Cine Corpn 1967 Indlaw SC 384., (supra). Again in Malabar Fisheries Co. Calicut v. CIT. Kerala, [1980] 1 SCR 696 = AIR 1980 SC 176 1979 Indlaw SC 189 the facts were that the appellant firm which was constituted on April 1. 1959 with four partners carried on six different businesses in different names. The firm was dissolved on March 31, 1963 and under the deed of dissolution the first business concern was taken over by one of the partners, the remaining five concerns by two of the other partners and the fourth partner received his share in cash. It appears that during the assessment years 1960-61 to 1963-64 the firm had installed various items of machinery in respect of which it had received Development Rebate u/s. 33 of the I.T. Act. 1961. On dissolution, the Income Tax officer took the view that s. 34(3)(b) of the Act applied on the premiss that there was a sale or transfer of the machinery by the firm whereupon he withdrew the Development Rebate earlier allowed to the firm by amending the orders in that behalf. The appeal filed on behalf of the dissolved firm was dismissed by the Appallate Assistant Commissioner but was allowed by the Tribunal. At the instance of the Revenue a reference was made to the High Court and the High Court allowed the reference holding that there was a transfer of assets within the meaning of s. 34(3)(b). The dissolved firm approached this court in appeal. This court after referring to the definition of the expression 'transfer' in s. 2(47) of the Act and the case law on the point concluded as under :\n\"Having regard to the above discussion, it seems to us clear that a partnership firm under the Indian Partnership Act, 1932 is not a distinct legal entity apart from the partners constituting it and equally in law the firm as such has no separate rights of its own in the partnership assets and when one talks of the firm's property or firm's assets all that is meant is property or assets in which all partners have a joint or common interest. If that be the position, it is difficult to accept the contention that upon dissolution the firm's rights in the partnership assets are extinguished. The firm as such has no separate rights of its own in the partnership assets but it is the partners who own jointly in common the assets of the partnership and, therefore, the consequence of the distribution, division or allotment of assets to the partners which flows upon dissolution after discharge of liabilities is nothing but a mutual adjustment of rights between the partners and there is no question of any extinguishment of the firm's rights in the partnership assets amounting to a transfer of assets within the meaning of s. 2(47) of the Act.\"\n15. From the foregoing discussion it seems clear to us that regardless of its character the property brought into stock of the firm or acquired by the firm during its subsistence for the purposes and in the course of the business of the firm shall constitute the property of the firm unless the contract between the partners provides otherwise. On the dissolution of the firm each partner becomes entitled to his share in the profits, if any, after the accounts are settled in accordance with s. 48 of the Partnership Act. Thus in the entire asset of the firm all the partners have an interest albeit in proportion to their share and the residue, if any, after the settlement of accounts on dissolution would have to be divided among the partners in the same proportion in which they were entitled to a share in the profit. Thus during the subsistence of the partnership a partner would be entitled to a share in the profits and after its dissolution to a share in the residue, if any, on settlement of accounts. The mode of settlement of accounts sat out in s. 48 clearly indicates that the partnership asset in its entirety must be converted into money and from the pool the disbursement has to be made as set out in clause (a) and sub-clauses (i), (fi) and (iii) of clause (b) and thereafter if there is any residue that has to be divided among the partners in the proportions in which they were entitled to a share in the profits of the firm. So viewed, it becomes obvious that the residue would in the eye of law be moveable property i.e. cash, and hence distribution of the residue among the partners in proportion to their shares in the profits would not attract s. 17 of the Registration Act. Viewed from another angle it must be reaslised that since a partnership is not a legal entity but is only a compendious name each and every partner has a beneficial interest in the property of the firm even though he cannot lay a claim on any earmarked portion thereof as the same cannot be predicated. Therefore, when any property is allocated to him from the residue it cannot be said that he had only a definite limited interest in that property and that there is a transfer of the remaining interest in his favour within the meaning of s. 17 of the Registration Act. Each and every partner of a firm has an undefined interest in each and every property of the firm and it is not possible to say unless the accounts are settled and the residue of surplus determined what would be the extent of the interest of each partner in the property. It is, however, clear that since no partner can claim a definite or earmarked interest in one or all of the properties of the firm because the interest is a fluctuating one depending on various factors, such as, the losses incurred by the firm, the advances made by the partners as distinguished from the capital brought in the firm, etc, it cannot be said, unless the accounts are settled in the manner indicated by s. 48 of the partnership Act, what would be the residue which would ultimately be allocable to the partners. In that residue, which becomes divisible among the partners, every partner has an interest and when a particular property is allocated to a partner in proportion to his share in the profits of the firm, there is no partition or transfer taking place nor is there any extinguishment of interest of other partners in the allocated property in the sense of a transfer or extinguishment of interest under s. 17 of the Registration Act. Therefore, viewed from this angle also it seems clear to us that when a dissolution of the partnership takes place and the residue is distributed among the partners after settlement of accounts there is no partition, transfer or extinguishment of interest attracting s. 17 of the Registration Act.\n16. Strong reliance was, however, placed by the learned counsel for the respondents on two decisions of this court, namely (1) Ratan Lal Sharma v. Purshottam Harit, [1974] 3 SCR 109 1974 Indlaw SC 219 and (2) Lachman Das v. Ram Lal andanr, [1989] 3 SCC 99 1989 Indlaw SC 551. Insofar as the first mentioned case is concerned, the facts reveal that the appellant and the respondent who had set up a partnership business in December 1962 soon fell out. The partnership had a factory and other moveable and immoveable properties. On August 22, 1963, the partners entered into an agreement to refer the dispute to the arbitration of two persons and gave the arbitrators full authority to decide their dispute. The arbitrators made their award on September 10. 1963. Under the award exclusive allotment of the partnership assets, including the factory, and liabilities was made in favour of the appellant and it was provided that he shall be absolutely entitled to the same in consideration of a sum of Rs. 17,000 plus half the amount of realisable debts of the business to the respondent. The arbitrators filed the award in the High Court on November 8, 1963. On September 10, 1964, the respondent filed an application for determining the validity of the agreement and for setting aside the award. On May 27, 1966, a learned Single Judge of the High Court dismissed the application as barred by time but declined to make the award the rule of the court because in his view the award was void for uncertainty and created rights in favour of the appellant over immoveable property worth over Rs. 100 requiring registration. The Division Bench dismissed the appeal as not maintainable whereupon this Court was moved by special leave. Before this Court it was contended (i) that the award is not void for uncertainty-, (ii) that the award seeks to assign the respondent's share in the partnership to the appellant and therefore does not require registration; and (iii) that under s. 17 of the Arbitration Act, the court was bound to pronounce judgment in accordance with the award. This court while reiterating that the share of a partner in the assets of the partnership comprising even immoveable properties, is moveable property and the assignment of the share does not require registration under s. 17 of the Registration Act. The legal position is thus affirmed. However, since the award did not seek to assign the share of the respondent to the appellant but on the contrary made an exclusive allotment of the partnerShip asset including the factory and liabilities to the appellant, thereby creating an absolute interest on payment of consideration of Rs. 17,000 plus half the amount of the realisible debts, it was held to be compulsorily registrable under s. 17 of the Registration Act. The Court did not depart from the principle that the share of a partner in the asset of the partnership inclusive of immoveable properties, is moveable property and the assignment of the share on dissolution of the partnership did not require registration under s. 17 of the Registration Act. The decision, therefore, turned on the interpretation of the award in regard to the nature of the assignment made in favour of the appellant. So far as the second case is concerned, we think it has no bearing since that was not a case of assignment of partnership property under a dissolution deed. In that case, the dispute was between two brothers in 2-1/2 killas of land situate in Panipat, Haryana. The said land stood in the name of one brother the appellant. The respondent contended that he was a banamidar and that was the dispute which was referred to arbitration. The arbitrator made his award and applied to the court for making it the rule of the court. Objections were filed by the appellant raising various contentions. The award declared that half share of the ownership of the appellant shall \"be now owned by Shri Ram Lal, the respondent in addition to his half share owned in those lands\". Therefore, the award transferred half share of the appellant to the respondent and since the value thereof exceeded Rs. 100, it was held that it required registration. It is, therefore, obvious that this case has no bearing on the point in issue herein.\n17. In the present case, the Division Bench of the High Court concluded that the award required registration because of an erroneous reading of the award. The Division Bench after extensively reproducing from the Schedules A to F of the award proceeded to state in that the allotments are exclusive to the brothers and they get independent rights of their own under the award in the properties allotted under the schedule and hence it is not a case purely of assignment of the shares in the partnership but it confers exclusive rights to the allottees. On this line of reasoning it concluded that the award required registration. The court next pointed out in  the judgment that the award also partitions certain immoveable properties jointly owned by the disputants. In this connection it has placed reliance on paragraph 10(c) of the award which reads as under :\n\"(c) Other Lands and Buildings and House properties belonging to S.V. Sivalinga Nadar & Bros. standing in the name of the firm and or otherwise jointly owned by the disputants. These have been allotted by us to one or other or jointly to some of the disputants as per schedules annexed hereto.\"The reasons which weighed with the Division Bench of the High Court in concluding that the award requires registration appear to be based on an erroneous reading of the award. We have carefully read the award and it is manifest therefrom that the arbitrators had confined themselves to the properties belonging to the two firms in question and scrupulously avoided dealing with the properties not belonging to the firm. This is manifest from paragraphs 15 to 18 of the award.\n18. However, properties standing in the names of disputants, individually or jointly, and others as benamidars but belonging to the firm also came to be included in the distribution of the surplus partnership asset under the award. That is the purport  extracted hereinabove. When on settlement of accounts the residue is required to be divided among the partners in proportions in which they were entitled to share profits under sub-cl. (iv) of clause (b) of section 48, the properties will have to be allocated to the partnes as falling to their share on the distribution of the residue and, therefore, the arbitrators indicated in the schedules the, properties falling to the share of each brother. Mere statements that a certain property win now exclusively belong to one partner or the other, as the case may be, cannot change the character of the document or the nature of assignment because that would in any case be the effect on the distribution of the residue. The property failing to the share of the partner on the distribution of the residue would naturally then belong to him exclusively but so long as in the eye of law it is money and not immoveable property there is no question of registration under s. 17 of the Registration Act. Besides, as stated earlier, even if one looks at the award as allocating certain immoveable property since there is no transfer, no partition or extinguishment of any right therein there is no question of application of s. 17(i) of the Registration Act. The reference to other land and buildings and house properties jointly owned by the disputants in clause (c) of paragraph 10 of the award merely indicates that certain properties belonging to the firm stood in the names of individual partners or in their joint names but they belonged to the firm and, therefore, they were taken into account for the purpose of settlement of accounts under s. 48 of the partnership Act and distributed on the determination of the residue. The award read as a whole makes it absolutely clear that the arbitrators had confined themselves to the properties belonging to the two firms and had scrupulously avoided other properties in regard to which they did not reach the conclusion that they belonged to the firm. On a correct reading of the award, we are satisfied that the award seeks to distribute the residue after settlement of accounts on dissolution. While distributing the residue the arbitrators allocated the properties to the partners and showed them in the Schedules appended to the award. We are, therefore, of the opinion that on a true reading of the award as a whole, there is no doubt that it essentially deals with the distribution of the surplus properties belonging to the dissolved firms. The award, therefore, did not require registration u/s. 17(1) of the Registration Act. For the above reasons, we allow these appeals and set aside the impugned orders of the Division Bench and remit the matters to the Division Bench for answering the other contentions which arose in the appeal before it but which were not decided in view of its decision on the question of registration of the award. We also make it clear that the award which is pending for registration may be registered by the Sub-Registrar notwithstanding the objection raised by one of the partners S.V. Sivalings Nadar through his lawyer if that is the only reason for withholding registration.\nThe appeals are allowed accordingly with costs.\n"}
+{"id": "TtLFxJpRa5", "title": "", "text": "Chandrappa & Ors v State Of Karnataka\nSupreme Court of India\n\n15 February 2007\nAppeal (crl.) 853 of 2006\nThe Judgment was delivered by : C. K. Thakker, J.\nThe present appeal is filed against the judgment and order of conviction dated November 24, 2005 passed by the High Court of Karnataka in Criminal Appeal No. 1008 of 1999 whereby it set aside the order dated July 14, 1999 passed by the Additional Sessions Judge, Tumkur in Sessions Case No. 16 of 1991 acquitting the accused (appellants herein) of offences punishable under Sections 143, 147, 148, 302 and 324 read with Section 149 of the Indian Penal Code ('IPC' for short).\nBrief facts of the case are that Accused No. 2, Somashekhara, Accused No. 8, Thammaiah and PW 8 Krishnaiah were running a Chit Transaction in which successful members were given articles like vessels, watches, sarees, cloth-pieces, etc. The said transaction was conducted once a week in the shop of PW 8 Krishnaiah and also at Kollapuradamma Temple at Hanumanthapura. It is the case of the prosecution that on October 30, 1989, one such transaction was held at about 5.30 p.m. in which one Nagaraj, the successful bidder was given a copper vessel (Kolaga). Nagaraj returned the vessel with his maternal uncle as it was old and demanded a new vessel. But the request was refused by the proprietors of the Chit Transaction. It is further the prosecution case that at about 9.30 p.m. on the same day, i.e. October 30, 1989, near Hanumanthapura Bypass, when PW1 Veerabhadraiah along with PWs 2, 3 and 4 (Chikkanna, Rudramurthy and Puttiah) was proceeding, the Accused Nos. 1 to 8 who had formed themselves into an unlawful assembly and were armed with weapons like, knife, reapers and stones attacked PWs 2 to 4. The accused caused injuries to all the three persons. It is alleged that when the quarrel was going on and PWs 2 to 4 were injured, deceased Anjinappa came forward and intervened and went ahead to stop the quarrel. Accused No. 8 Thammaiah took out a button knife from his pocket and stabbed Anjinappa on the left side of his chest, due to which Anjinappa slumped and fell on the ground. Complainant Veerabhadraiah along with one Krishnaiah, s/o Oblaiah carried Anjinappa in an autorickshaw to the hospital. On the way to hospital, Anjinappa breathed his last. The dead body of Anjinappa was then taken to the General Hospital, Tumkur.\n1. The accused persons after committing assault, threw the clubs and rippers at the spot and ran away. At about 11.30 p.m., PW 13 Madhukar Musale, Circle Inspector of Police, Tumkur received an information about the incident of rioting that took place at Hanumanthapura. On being intimated by PSI, PW 7 A.R. Shariff about the rioting and the injured being admitted to General Hospital at Tumkur, PW 13 went to the hospital and learnt that Anjinappa had died and the other three injured persons were taking treatment. It is alleged that PW 1, Veerabhadraiah, who was present in the hospital, was questioned by PW 13. The information given by him was recorded in writing as per Ex. P-1 as complaint and was registered as Crime No. 86 of 1989 for offences punishable Sections 143, 147, 148, 324 and 302 read with Section 149 IPC. Accused No. 7 Tukaraiah died during the pendency of the case and the trial abated against him.\nInquest over the dead body of deceased Anjinappa was done and the dead body was sent for post-mortem examination. PW 11 Dr. Hanumakka who conducted the postmortem opined that the injuries were ante mortem in nature. She found a punctured wound over the left 3rd inter costal space extending from medial edge of the areola of left nipple obliquely downwards and medially 2\" x 2\" size with clean cut margin and fat protruding through the wound the depth of which was 3= inches. Likewise, injuries to PWs 2 to 4 were also proved by PW 12, Dr. Chandrasekhara Prasad.\nAfter completion of investigation, all the accused were charged for offences punishable under Sections 143, 147, 148, 324, 302 read with Section 149 of IPC.\nIn order to substantiate its case, the prosecution examined 13 witnesses. PWs 1 to 4 were portrayed as eye witnesses and amongst them, PWs 2 to 4 were shown to be injured persons. They supported the case of the prosecution as to Chit Transaction, the incident which took place at about 5.30 p.m. on October 30, 1989 as also the assault at 9.30 p.m. on the same day.\nThe learned Additional Sessions Judge, however, considering contradictions and discrepancies in the deposition of eye witnesses, non-examination of Nagraj who was the root cause of quarrel and Krishniah, son of Obalaiah, who accompanied deceased Anjanianappa to hospital, conflicting version as to injury sustained by accused No. 1 Chandrappa, presence of the deceased and injured witnesses at the Hanumanthapura Bypass at 9.30 p.m., mudamal knife not being the same with which the deceased was assaulted, medical evidence as to injuries sustained by prosecution witnesses and other circumstances, held that in the facts and circumstances of the case, it could not be conclusively established that the prosecution had proved the case against the accused beyond reasonable doubt. He, therefore, held that the accused were entitled to benefit of doubt and accordingly acquitted them.\nIn an appeal against an order of acquittal by the State, the High Court reversed the order of the trial court. It observed that on careful examination of evidence of PWs 1 to 4, it was clearly established that deceased Anjaniappa was done to death by Accused No. 8 and PWs 2 to 4 sustained injuries in the course of incident. It was also held by the High Court that contradictions and variations were of minor nature which did not affect substratum of the prosecution case and evidence of PWs 1 to 4 had remained totally unshaken and there was a ring of truth running through their testimony which inspired confidence notwithstanding trivial omissions and discrepancies, which did not go to the root of the matter. The High Court, accordingly, set aside acquittal recorded by the trial court and convicted the appellants for various offences as ordered in the final paragraph 55 of the judgment.\nBeing aggrieved by the order of conviction and sentence, the appellants have approached this Court. Notice was issued by the Court on August 07, 2006 on appeal as also on application for bail. On November 17, 2006, bail was refused but the Registry was directed to post the matter for final hearing on January 16, 2007.\nWe have heard the learned advocates for the parties. Mr. Sushil Kumar, Senior Advocate for the appellant-accused contended that the accused having been acquitted by the Trial Court ought not to have been convicted by the High Court in an appeal against an order of acquittal. He submitted that it is settled law that an order of acquittal can be set aside by the High Court only if the appellate Court is satisfied that the reasons in support of acquittal recorded by the Trial Court are non-existent, extraneous, perverse, acquittal palpably wrong, totally ill-founded or wholly misconceived; the Court had 'obstinately blundered' or reached the conclusion, 'wholly wrong', 'manifestly erroneous' or 'demonstrably unsustainable', which resulted in miscarriage of justice. According to him, the view taken by the Trial Court was legal, proper and in consonance with law and the High Court, in an appeal against acquittal, ought not to have disturbed the order even if two views were possible. He, therefore, submitted that the appeal deserves to be allowed and the appellants are entitled to acquittal.\nMr. Hegde, learned counsel for the respondent-State supported the order passed by the High Court. He submitted that once an order of acquittal is challenged by the State, the appellate course has all the powers which were exercised by the Trial Court and it is open to the appellate Court to reappreciate and review such evidence and to come to its own conclusion. On facts, the counsel submitted that the High Court, considering the ground reality as to possibility of contradictions and omissions held that they did not affect the genesis or substratum of prosecution case and convicted the accused. The order does not suffer from legal infirmity calling for interference under Article 136 of the Constitution and the appeal deserves to be dismissed.\nIn view of rival submissions of the parties, we think it proper to consider and clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the present Code') deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extension; 378. Appeal in case of acquittal.\n(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, or an order of acquittal passed by the Court of Session in revision.\n(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the high Court from the order of acquittal.\n(3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.\n(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.\n(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.\n(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).\n2. Whereas Sections 379-380 cover special cases of appeals, other sections lay down procedure to be followed by appellate courts.\nIt may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before this Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate Court in an appeal against an order of acquittal, we have confined ourselves to one aspect only, i.e. an appeal against an order of acquittal.\nBare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.\nIt cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused.\n3. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law.\n4. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.\nThough the above principles are well established, a different note was struck in several decisions by various High Courts and even by this Court. It is, therefore, appropriate if we consider some of the leading decisions on the point.\nThe first decision was rendered by Judicial Committee of the Privy Council in Sheo Swarup & Ors. v. King Emperor, (1934) 61 IA 398 : AIR 1934 PC 227 1934 Indlaw PC 30. In Sheo Swarup, the accused were acquitted by the Trial Court and the Local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code, (similar to Section 378 of the present Code). At the time of hearing of appeal before the High Court, it was contended on behalf of the accused that in an appeal from an order of acquittal, it was not open to the appellate Court to interfere with the findings of fact recorded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed on the High Court in such appeal.\n5. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the Trial Judge, recorded an order of conviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an appellate Court had the power to interfere with the findings of fact recorded by the Trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the 'humble advice of their Lordships', leave was granted by His Majesty. The case was, thereafter, argued. The Committee considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with an appeal against acquittal and an appeal against conviction. Though several authorities were cited revealing different views by High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases.\nLord Russel summed up the legal position thus;\n\"There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result\".\nHis Lordship, then proceeded to observe:\n\"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code.\"\nThe Committee, however, cautioned appellate courts and stated;\n6. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as\n\"(1) The views of the trial Judge as to the credibility of the witnesses;\n(2) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;\n(3) The right of the accused to the benefit of any doubt; and\n(4) The slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.\nTo state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice\".(emphasis supplied)\nIn Nur Mohammad v. Emperor, AIR 1945 PC 151 1945 Indlaw PC 46, the Committee reiterated the above view in Sheo Swarup  and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal. So far as this Court is concerned, probably the first decision on the point was Prandas v. State, AIR 1954 SC 36 1950 Indlaw SC 66 (Though the case was decided on March 14, 1950, it was reported only in 1954). In that case, the accused was acquitted by the trial Court. The Provincial Government preferred an appeal which was allowed and the accused was convicted for offences punishable under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain eye-witnesses. Upholding the decision of the High Court and following the proposition of law in Sheo Swarup, a six-Judge Bench speaking through Fazl Ali, J. unanimously stated:\n\"It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P. C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice\".(emphasis supplied)\nIn Surajpal Singh v. State, 1952 SCR 193 : AIR 1952 SC 52 1951 Indlaw SC 23, a two-Judge Bench observed that it was well established that in an appeal under Section 417 of the (old) Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons.\nIn Ajmer Singh v. State of Punjab, 1953 SCR 418 : AIR 1953 SC 76 1952 Indlaw SC 110, the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached this Court. It was contended by him that there were 'no compelling reasons' for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined. It was also commented that the High Court committed an error of law in observing that \"when a strong 'prima facie' case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed.\"\nUpholding the contention, this Court said;\n7. We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons.\n(emphasis supplied)\nIn Atley v. State of Uttar Pradesh, AIR 1955 SC 807 1955 Indlaw SC 135, this Court said;\n\"In our opinion, it is not correct to say that unless the appellate court in an appeal under S. 417, Criminal P.C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.\nIt has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.\nIt is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.\nIf the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated\".(emphasis supplied)\nIn Aher Raja Khima v. State of Saurashtra, (1955) 2 SCR 1285 : AIR 1956 SC 217 1955 Indlaw SC 41, the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial Court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority (2:1) stated;\n\"It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong\"(emphasis supplied).\nVenkatarama Ayyar, J. (minority), in his dissenting judgment stated:\n\"Do the words \"compelling reasons\" in the above passage import a limitation on the powers of a court hearing an appeal under Section 417 not applicable to a court hearing appeals against conviction? If they do, then it is merely the old doctrine that appeals against acquittal are in a less favoured position, dressed in a new garb, and the reasons for rejecting it as unsound are as powerful as those which found favour with the Privy Council in Sheo Swarup v. King-Emperor, AIR 1934 PC 227 1934 Indlaw PC 30 and Nur Mohammad v. Emperor, A.I.R. 1945 P.C. 151 1945 Indlaw PC 46. But it is probable that these words were intended to express, as were the similar words of Lord Russell in Sheo Swarup 1934 Indlaw PC 30 that the court, hearing an appeal under section 417 should observe the rules which all appellate courts should, before coming to a conclusion different from that of the trial court. If so understood, the expression \"compelling reasons\" would be open to no comment. Neither would it be of any special significance in its application to appeals against acquittals any more than appeals against conviction\".(emphasis supplied)\nIn Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 : AIR 1961 SC 715 1960 Indlaw SC 446, a three-Judge Bench considered almost all leading decisions on the point and observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The Court, however, noted that appellate courts found considerable difficulty in understanding the scope of the words \"substantial and compelling reasons\" used in certain decisions. Subba Rao, J., (as His Lordship then was) stated:\n\"This Court obviously did not and could not add a condition to s. 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong\".\nThe Court concluded:\n\"The foregoing discussion yields the following results:\n(1) An appellate court has full power to review the evidence upon which the order of acquittal is founded;\n(2) The principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and\n(3) The different phraseology used in the judgments of this Court, such as,\n(i) \"Substantial and compelling reasons\",\n(ii) \"Good and sufficiently cogent reasons\", and\n(iii) \"strong reasons\" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified\".\nAgain, in M.G. Agarwal v. State of Maharashtra, (1963) 2 SCR 405 : AIR 1963 SC 200 1962 Indlaw SC 520, the point was raised before a Constitution Bench of this Court. Taking note of earlier decisions, Gajendragadkar, J. (as His Lordship then was) laid down the principle in the following words:\n\"In some of the earlier decisions of this Court, however, in emphasising the importance of adopting a cautious approach in dealing with appeals against acquittals, it was observed that the presumption of innocence is reinforced by the order of acquittal and so, 'the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons': vide Surajpal Singh v. The State [(1952) S.C.R. 193 1951 Indlaw SC 23, 201]. Similarly in Ajmer Singh v. State of Punjab [(1953) S.C.R. 418 1952 Indlaw SC 110], it was observed that the interference of the High Court in an appeal against the order of acquittal would be justified only if there are 'very substantial and compelling reasons to do so'. In some other decisions, it has been stated that an order of acquittal can be reversed only for 'good and sufficiently cogent reasons' or for 'strong reasons'. In appreciating the effect of these observations, it must be remembered that these observations were not intended to lay down a rigid or inflexible rule which should govern the decision of the High Court in appeals against acquittals. They were not intended, and should not be read to have intended to introduce an additional condition in clause (a) of section 423(1) of the Code. All that the said observations are intended to emphasise is that the approach of the High Court in dealing with an appeal against acquittal ought to be cautious because as Lord Russell observed in the case of Sheo Swarup, the presumption of innocence in favour or the accused 'is not certainly weakened by the fact that he has been acquitted at his trial'.\nTherefore, the test suggested by the expression 'substantial and compelling reasons' should not be construed as a formula which has to be rigidly applied in every case. That is the effect of the recent decisions of this Court, for instance, in Sanwat Singh v. State of Rajasthan1960 Indlaw SC 446 and Harbans Singh v. State of Punjab [(1962) Supp. 1 S.C.R. 104 1961 Indlaw SC 361]; and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse.\"(emphasis supplied)\nYet in another leading decision in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 1973 Indlaw SC 181, this Court held that in India, there is no jurisdictional limitation on the powers of appellate Court.\n\"In law there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinize the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive considerations.\"\nPutting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, Krishna Iyer, J. said;\n\"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thru' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author (Glanville Williams : 'Proof of Guilt') has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty.\nThus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from, the conviction of innocent.' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents\".(emphasis supplied)\nIn K. Gopal Reddy v. State of Andhra Pradesh, (1979) 2 SCR 363 : (1979) 1 SCC 355 : AIR 1979 SC 387 1978 Indlaw SC 108, the Court was considering the power of the High Court against an order of acquittal under Section 378 of the present Code. Chinnappa Reddy, J. after considering the relevant decisions on the point stated:\n\"The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and Courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh & Ors. v. State of Rajasthan 1960 Indlaw SC 446. In Sanwat Singh's case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swamp v. Emperor 1934 Indlaw PC 30 and re-affirmed those principles. After Sanwat Singh v. State of Rajasthan 1960 Indlaw SC 446, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup's case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases (Ramabhupala Reddy & Ors. v. State of A.P. AIR 1971 SC 460 1970 Indlaw SC 435, Bhim Singh Rup Singh v. State of Maharashtra, AIR 1974 SC 286 1973 Indlaw SC 373), it has been said that to the principles laid down in Sanwat Singh's case  may be added the further principle that \"if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court\". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable\" .(emphasis supplied)\nIn Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 1996 Indlaw SC 2602, this Court said;\n\"While setting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions\".\nIn Alarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57 2002 Indlaw SC 96, referring to earlier decisions, the Court stated;\n\"The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding\".\nIn Bhagwan Singh & Ors. v. State of M.P., (2002) 4 SCC 85 2002 Indlaw SC 1611, the trial Court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the trial Court even if that view was not correct, this Court observed;\n\"We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not\".\nIn Harijana Thirupala v. Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC 470 2002 Indlaw SC 1635, this Court said;\n\"Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of inn decree in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity\".\nIn Ramanand Yadav v. Prabhunath Jha, (2003) 12 SCC 606 2003 Indlaw SC 921, this Court observed;\n\"There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not\".\nRecently, in Kallu v. State of M.P., (2006) 10 SCC 313 : AIR 2006 SC 831 2006 Indlaw SC 4, this Court stated;\n\"While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court\".\nFrom the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;\n(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;\n(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;\n(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.\n(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.\n(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\nApplying the above principles to the case on hand, we are of the considered view that the learned counsel for the accused is right in submitting that the High Court ought not to have disturbed an order of acquittal recorded by the trial Court. For acquitting the accused and extending them the benefit of doubt, the trial Court observed that the prosecution had failed to examine certain persons who could have unfolded the genesis of the prosecution case. The trial Court indicated that the root cause of the quarrel was refusal to exchange copper vessel (Kolaga) to Nagraj, winner of the draw, but he was not examined. Likewise, Krishnaiah, son of Oblaiah, who accompanied injured (deceased) Anjaniappa to the hospital, was not brought before the Court.\n8. Though it is in evidence that Accused No. 1 Chandrappa was injured and was also taken to the hospital alongwith Anjaninappa, some witnesses had denied the fact as to injuries sustained by the Accused No.1. The High Court did not give much weight to the said circumstance observing that Accused No. 1 was neither examined by a doctor nor a cross-complaint was filed by him against the prosecuting party. In our view, the submission of the learned counsel for the appellants is well founded that it is not material whether Accused No. 1 had or had not filed a complaint or he was or was not examined by a doctor, but the fact that even though it was the case of prosecution that Accused No. 1 was injured during the course of incident, prosecution witnesses tried to suppress that fact which would throw doubt as to the correctness of the case or the manner in which the incident had happened. The trial Court had also stated that it was unnatural that the prosecution witnesses and deceased Anjaninappa could have gone to Hanumanthapura Bypass at about 9.30 p.m. when a shorter route was available for going to their destination. The trial Court observed that there was inconsistency in prosecution evidence as to availability of electric light at the time of incident. The Court also noted that the knife produced before the Court as mudamal article was not the same which was used by Accused No. 8 for inflicting injury on the deceased. There was also no consistency in evidence as to injuries sustained by prosecution witnesses.\nIn our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favorable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by the appellate Court. The decision of the appellate Court (High Court), therefore, is liable to be set aside.\nFor the aforesaid reasons, the appeal deserves to be allowed and is, accordingly, allowed. The order of conviction and sentence recorded by the High Court is set aside and the order of acquittal passed by the Additional Sessions Judge, Tumkur is restored. The appellants are hereby acquitted of the offences with which they were charged. They are ordered to be set at liberty forthwith unless their presence is required in any other case.\nAppeal allowed\n"}
+{"id": "ArQEPcyLas", "title": "", "text": "Kallu @ Masih and Others v State of Madhya Pradesh\nSupreme Court of India\n\n4 January 2006\nAppeal (Crl.) 520 of 2005\nThe Judgment was delivered by : R.V. Raveendran, J.\n1.  This appeal is by the four convicted accused against the judgment dated 13.12.2004 of the High Court of Madhya Pradesh allowing in part, Criminal Appeal No.874 of 1995 filed by the State.\n2.  The case of the prosecution is that on 5.7.1993, at about 6 p.m., an unlawful assembly of 27 persons, including Kallu, Safi, Madaniya and Bhuria (appellant nos.1 to 4 herein) and one Anwar, came to the house of Sadruddin (PW-4), armed with swords, Ballams, lathis, hockey sticks, farsas and dharias, shouting \"kill/cut Sadruddin\". Kallu dealt a blow on the head of Sadruddin with a sword. Madaniya also dealt a blow with a sword on his hand. Shafi gave a blow of sword injuring his forehead, nose and jaw. Bhuria gave a blow with a spear injuring his thigh and calf. On seeing Sadruddin being attacked, Sabdar Bano (PW-6), Noorbano (PW-7), Baby (PW-9) and Annobai (PW-10) rushed to the rescue of Sadruddin. They were also beaten up by the appellants and their associates. Sabdarbano received injuries on her head and body. Annobai received injuries on the head. Baby and Noorbano received injuries on their hands. By then, a Police van came near the spot. On seeing it, the appellants and others took to their heels. Kanizbano (PW-3) who was sitting outside her house and who witnessed the entire incident, along with some others, took the injured persons to the hospital. Kanizbano also lodged an FIR (Ex. P-28) within half an hour of the incident in Police Station, Dhar, naming all the 27 persons. They were tried by the 3rd Additional Sessions Judge, Dhar, for the offences under Sections 147, 148, 307/149, 324/149 and 323/149 of the Indian Penal Code. Appellant Nos.1 and 2 and one Nazir Khan were also charged under Section 25/27 of the Arms Act.\n3.  The trial court by judgment dated 16.8.1995 acquitted all 27 accused primarily on three grounds. The first is that all the eyewitnesses belonged to Sadruddin group who had enmity with the accused and, therefore, their statements were not reliable. The second is that no independent eye-witness was examined even though some spectators were stated to be present. The third is that there were inconsistencies in the statements of the eyewitnesses.\n4.  The State filed an appeal before the Madhya Pradesh High Court in Criminal Appeal No.874 of 1995. Leave to appeal was granted by the High Court under section 378(3) of Cr.P.C. in regard to five accused (the four appellants and one Anwar) who were specifically named in the evidence as persons who attacked and injured PWs. 4, 6, 7, 9 and 10. Thus, the acquittal of other 22 who were not named by any of the witnesses and to whom no specific overt act was attributed, attained finality.\n5.  The High Court by its judgment dated 13.12.2004 allowed the appeal in part, convicted appellant Nos.1 to 4 and sentenced each of them as follows :\n(i) RI for two years with fine of Rs. 1,000/in default six months RI under Section 326 IPC (appellant no. 1) and 326/149 IPC (appellant nos. 2 to 4) for causing skull injury to PW-4;\n(ii) RI for one year with fine of Rs.500/-, in default 3 months RI under Section 324/149 IPC for causing injuries to PW-6 and PW-9;\n(iii) RI for six months with fine of Rs.500/ each, in default 3 months RI to each, under Section 323/149 IPC, for causing injuries to PWs.7 and 10.\n6.  The High Court directed that all substantive sentences shall run concurrently, and that the period of detention shall be set off against the substantive sentences awarded to them. The appeal, in so far as accused Anwar was, however, dismissed by giving him the benefit of doubt. Feeling aggrieved, Respondents 1 to 4 in the appeal before the High Court (Accused Nos.1, 11, 19 and 23) have filed this appeal by special leave. The appellants contend that the trial court which had observed the demeanour of the witnesses and considered all the facts and circumstances, had rightly acquitted them of all charges. It is also contended that the High Court failed to notice that\n(a) appellants had been falsely implicated on account of previous enmity between the two groups;\n(b) there are several inconsistencies and discrepancies in the evidence of the eyewitnesses; and\n(c) though several members of public were allegedly present at the time of the incident, no independent witness was examined. It is submitted that in the absence of any perversity or omission to consider material evidence or apparent error in law, the judgment of the Trial Court was not open to interference in an appeal against acquittal. Lastly, it is contended that when only four persons are found guilty, conviction invoking section 149 IPC is not warranted.\n7.  The circumstances in which an appellate court will interfere with the finding of acquittal recorded by a Trial Court are reiterated in Bhim Singh vs. State of Haryana [2002 (10) SCC 461], 2002 Indlaw SC 1491 thus :-\n\"Before concluding, we would like to point out that this Court in a number of cases has held that an appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to reappreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial court.\"\n8.  While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.\n9.  Kanizbano, PW-3, who does not belong to the family of the injured Sadruddin and lives near the house of Sadruddin has stated that Kallu, Safi, Madaniya, (appellant Nos.1, 2 and 3) had beaten Sadruddin. She has also stated that they along with others, including Bhuria, (appellant No.4), had come armed with dharias, farsas, lathis etc., shouting \"kill, kill\".\n10.  Sadruddin (PW-4) has named all the four appellants and 18 other accused as the persons who came armed with swords, ballams, hockey sticks, farsas and dharias. He also described the manner in which each of the appellants had inflicted blows on him. He stated that Kallu hit him on his head with a sword; that Madaniya hit him with a sword on his hand; that Shafi hit him with a sword on his face injuring his forehead, eye and nose and breaking his tooth; and that Bhuria gave a blow with Ballam causing injuries to his thigh and calf.\n11.  PW-6, Sabdarbano, daughter of Sadruddin, specifically stated that appellant nos. 1 to 4 and their friends (who were present in court) had come armed with spears, dariyas, lathis etc., and that they were shouting \"Maro, kato\". She also stated that Kallu hit her father with a sword; that Shafi had a sword and Bhuria had a spear. She stated that when she along with PW-7 and PW-10 went to rescue her father, they attacked her and she received sword hits on her hand and ribs and spear hit on her shoulder and head and that her fingers were fractured. Noorbano, PW-7, another daughter of Sadruddin stated that appellant Nos.1 to 4 and other accused had come running and Kallu hit her father on the head using a sword. She also stated that when she, PW-6, PW-9 and PW-10 went to rescue her father, they were all beaten up by all the accused and that her hand was injured. Baby (whose father is a nephew of Sadruddin) examined as PW-9, stated that appellants 1 to 4 chased Sadruddin; that Kallu hit him with a sword on the head and Shafi hit him on the face with a sword, and that all of them beat Sadruddin. She also stated that she was hit by someone on right hand. Annobai (PW-10), niece of Sadruddin stated that Kallu and others came to the house of Sadruddin, shouting \"kill/cut\" and Kallu, Bhuria and Altaf hit Sadruddin with sword/s. She also states that she was hit by a sword on her head by someone.\n12.  It is true that only Sadruddin clearly stated as to who hit him with what weapon and at which part of his body. The other four eye-witnesses (PWs 6, 7, 9 and 10) have not stated who landed the blows on them. All of them, however, identify Kallu as hitting Sadruddin on the head. In addition, Baby (PW-9) has stated that Shafi hit Sadruddin on the nose and Annobai (PW-10), stated that Bhuria hit Sadruddin with a sword.\n13.  The evidence of PWs. 4, 6, 7, 9 and 10 when read with the evidence of PW-3 makes it clear that appellants 1 to 4 along with others, had come armed with swords, spears, hockey sticks etc.; that a blow was given when Sadruddin was sitting on Otla of his house and, thereafter, he ran a few steps and there all the appellants landed him blows with different weapons. It is also clear that when the womenfolk, namely, PWs.6, 7, 9 and 10 ran to save him, they were also beaten up. The evidence also clearly shows that neither Sadruddin nor the womenfolk were armed.\n14. On the other hand, appellants 1 to 4 were armed when they came in a group along with others to Sadruddin's house shouting \"kill/hit\". The evidence of the eye-witnesses is also clear that but for a Police van intervening at that time, there was the likelihood of Sadruddin and the women who went to save him, sustaining more injuries. Though there was a cross-complaint by the defence group, significantly, none of the appellants was injured. The evidence also shows that there was a longstanding enmity between Sadruddin and Kallu. In these circumstances, the High Court held the appellants guilty.\n15.  Though the trial court referred to the evidence of the eyewitnesses, it chose to disbelieve them merely on account of minor inconsistencies in their evidence, relating to the exact site of occurrence and failure to name all who landed blows and the exact nature of injuries. The High Court, on the other hand, held that minor inconsistencies and discrepancies regarding the exact place or the point at which the incident took place or as to who landed the blows is not sufficient to disbelieve the evidence of injured eyewitnesses. It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly. In fact, it is difficult, if not impossible. This Court in Masalti v. State of U.P. [1964 (8) SCR 133], 1964 Indlaw SC 393 observed :\n\"Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault.\"\n16.  The trial court was of the view that absence of an independent eye-witness in the background of previous enmity, was a serious lacuna. But what the trial court failed to notice is that previous enmity was not denied and the prosecution case is that Kallu and other accused came in a group to Sadruddin's house specifically to beat him up. Therefore, the mere fact that there was enmity between Sadruddin and Kallu cannot be a ground to reject the clear evidence of the eye-witnesses -PWs 4, 6, 7, 9 and 10 who were the injured, and PW-3. The High Court has, therefore, rightly held that the appellants and other accused were the assaulting party; that they had come together with weapons and had acted jointly and had run away after injuring Sadruddin and four female members of his family.\n17.  We find that the High Court has not interfered in the matter in a routine manner merely because a different view is possible. The High Court has interfered rightly, in our view, because the trial court unreasonably disbelieved the evidence of six eye-witnesses on insufficient grounds. The High Court has also assigned reasons for interfering with acquittal. We find no error in the decision of the High Court.\n18.  The contention that when only four persons are found guilty, there cannot be conviction under section 149 IPC, has no merit. Section 149 provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. Section 141 requires a minimum of five persons for being designated as an 'unlawful assembly'.\n19.  The question has been specifically considered by this Court in Mohan Singh & Anr. vs. State of Punjab [AIR 1963 SC 174] 1962 Indlaw SC 149 and Ram Bilas Singh & Ors. Vs. The State of Bihar [1964 (1) SCR 775], 1963 Indlaw SC 289 and in Dharam Pal and Others vs. The State of U.P. [1975 (2) SCC 596]. 1975 Indlaw SC 616 It is sufficient to refer to the principle as stated in Dharam Pal 1975 Indlaw SC 616 (supra), for our purpose : \"It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings. If, for example, only five known persons are alleged to have participated in an attack but the courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume that the participants were less than five in number. On the other hand, if the court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to the total number of participants.\n20. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it is not in the case before us, to reach the conclusion that, having regard to undeniable facts, the number of participants could not possibly be less than five. \" [Emphasis supplied]\n21.  The accused before the trial court were 27 in number. PW4 specifically named 22 persons and further named the four out of them who landed him the blows. PW-3 names 12 persons who came as a group. Other eye-witnesses also clearly stated that the appellants with other accused who were present in court had come to attack Sadruddin. As noticed above, the trial court chose to acquit all the 27 accused. In the appeal filed by the State, leave was granted by the High Court only in regard to five of the accused, as they were specifically named as the persons wielding weapons and causing injuries to Sadruddin and others and as the names of others were mentioned only as being members of the assembly without any specific act being attributed to them. The High Court gave benefit of doubt to one of the five (Anwar) though his presence as a member of the group was accepted. This resulted in conviction of only four. This does not mean that there is no finding that there was an unlawful assembly. When the evidence clearly shows that more than five persons armed with swords, spears etc. had come to the house of Sadruddin with the common object of causing injury, and injured him. The mere fact that several accused were acquitted and only four are convicted, does not enable the four who are found guilty to contend that Section 149 is inapplicable. We may also in this context refer to the following observations in Masalti vs. State of UP [1964 (8) SCR 133], 1964 Indlaw SC 393 reiterated in Triloki Nath vs. State of UP reported in JT 2005 (9) SC 370 2005 Indlaw SC 705 :-\n\"In fact, section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.\"\n22.  We, therefore, find no merit in this appeal and the same is, accordingly, dismissed.\nAppeal dismissed\n"}
+{"id": "08YMNb5Zql", "title": "", "text": "Manga @ Man Singh v State of Uttarakhand\nSupreme Court of India\n\n3  May  2013\nCr.A. No. 1156 of 2008 with Cr.A. No. 1157 of 2008, Cr.A. No. 1158 of 2008, Cr.A. No. 1159 of 2008, Cr.A. No. 1160 of 2008, Cr.A. No. 1161 of 2008, Cr.A. No. 1162 of 2008, Cr.A. No. 1163 of 2008, Cr.A. No. 1164 of 2008, Cr.A. No. 1165 of 2008, Cr.A. No. 1166 of 2008\nThe Judgment was delivered by : Fakkir Mohamed Ibrahim Kalifulla, J.\n1. In these appeals the challenge is to the common judgment of the Division Bench of the High Court of Uttarakhand at Nainital dated 14.6.2007 in Criminal Appeal Nos.17, 18, 19, 21, 22, 23, 24, 25 and 95 of 2005. The High Court by the impugned judgment confirmed the conviction and sentences awarded by the trial Court in its judgment and order dated 01.2.2005, in Sessions Case No.156/2002 State v. Soma and Others. The appellants were all convicted for offences under Section 302, 307 read with S. 149 and Ss. 147 & 148 of Indian Penal Code (IPC). Each of the accused was awarded the punishment of life imprisonment and fine of Rs.5000/- under Sections 302/149 IPC and seven years rigorous imprisonment and fine of Rs.3000/- under Section 307/149 IPC and one year's rigorous imprisonment and Rs.1000/- fine u/s. 148 IPC and six months' rigorous imprisonment and Rs.500/- fine u/s. 147 IPC. All the sentences were directed to run concurrently.\n2. Criminal Misc. Petition No.22687 of 2011 in Criminal Appeal No.1160 of 2008 filed by the de facto complainant is allowed. Applicant is impleaded as party-respondent.\n3. The genesis of the case was that the complainant Sajjad @ Kala PW-2 was the resident of village Dadoobas, within the jurisdiction of Bhagwanpur police station, district Haridwar. On 21.11.2001 his brother Ayyub (PW- 3) went to his field situated near the river. He was accosted by A1 to A- 4 Soma, Chander, Pyara and Radha and fearing assault at their hands Ayyub (PW-3) escaped and rushed back to the residence and reported the matter to PW-2. PW-3 stated to have gone to his field by around 8.30 to 8.45 a.m. and retuned back by 9 to 9.15 a.m. By 10 a.m. the accused, 15 in number, armed with guns and country made pistols approached the house of the complainant, where all other family members were also present. The accused party stated to have abused the complainant and the family members and that while the complainant and his family members were attempting to pacify the accused party, without heeding to any of their advice, accused party opened fire in which Mehroof s/o Nazir, on sustaining gun shot injuries in his chest, succumbed to the injuries and died on the spot.\nThat Iqurar Ali, another person was seriously injured and 10 others were also injured in the firing assault at the instance of the appellants. They were all shifted to Roorkee hospital for treatment. The body of the deceased Mehroof, was lying at the place of occurrence. PW-2 stated to have lodged written complaint Ka-1 in the police station at about 11.45 a.m. on the same date, whereafter a case was registered against all the accused persons. Iqurar Ali, the other seriously injured person, died on 24.11.2001 at about 4.30 a.m. Thereafter, PW-2 gave a further report Ka-2 to the police station Bhagwanpur. The post-mortem was conducted on the bodies of Mehroof and Iqurar Ali. The investigating officer, in furtherance of the investigation, recovered the guns, prepared the site plan, recorded the statement of witnesses and on conclusion of the investigation, submitted the charge-sheet before the Court. According to PW-2, two years prior to the incident in connection with Soma's (A-1) daughter, there was a gunshot firing by the appellants Bijendra (A-5) and Tirath (A-15) respectively, which was however, compromised outside the Court. He further informed that a 'marpeet' took place between Pyara (A-3) s/o Soma and one Liyakat s/o Nuruddin four days prior to the date of incident with regard to payment of Metador (vehicle) charges and that two days thereafter, exchange of hot words took place between them.\n4. It was in the above stated background that the offence was alleged to have been committed by the appellants. The prosecution examined PWs-1 to 13 of whom, PWs-1 to 4 were injured eye-witnesses, namely, Gayyur, Sajjad @ Kala, Ayyub and Ashraf. PW-5 is Dr. S.S. Lal, who conducted the post- mortem on the body of Mehroof. PW-6 is Dr. D.D. Lumba, who attended on the injured persons numbering ten. PW-7 is Dr. Ajay Aggarwal, who attended on the injured eye-witnesses PWs-1 and 2. PW-8 is Dr. R.K. Pandey, who conducted the post-mortem on the body of Iqurar Ali. PW-9 is Dr. Yogesh Kumar, radiologist, who proved X-ray reports of seven of the injured witnesses. PW-10, Sub Inspector, R.K. Awasthi is the investigating officer.\n5. In the questioning u/s. 313 C.r.P.C., all the accused took the plea of 'false implication' and that they have been implicated due to enmity, as well as for political reasons. The injuries on the body of Mehroof as stated in the post-mortem report were as under:\n\"(1) Fire arm would of entry 1 cm x 1 cm rounded in front of left side of chest. 4 cm away from left nipple at 10 O' Clock position, margins inverted, blackening & tattooing present.\"\n6. According to PW-5, Dr. S.S. Lal, Medical officer, the death was caused due to shock and hemorrhage resulting from the ante-mortem firearm injuries sustained by the deceased.\n7. Thus, the death was one of homicidal and was proved beyond doubt. The injuries on the body of Iqurar Ali, as per PW-6 the doctor, who attended on him immediately after he was shifted to Roorkee Civil Hospital were as under:\n\"(1) Lacerated would 1cm x 0.5 cm x through and through left pinna back middle part. No blackening scorching and tattooing seen around the wound.\n(2) Lacerated would 1.0 cm x 0.5 cm x muscle deep tragus of left ear. No blackening, scorching and tattooing seen around the wound.\n(3) Lacerated would 1.6 cm x 1.0 cm x depth not probed middle of chin lower part. No blackening, scorching and tattooing seen around the wound. Adv. X-ray and fresh in duration.\"\n8. Considering the precarious condition of the injured Iqurar Ali, he was referred to a higher medical centre for treatment on 21.11.2001 at 12:10 p.m. He was taken to PGI Hospital, Chandigarh from where he was referred to AIIMS, New Delhi. However, considering the health of Iqurar Ali, he was allowed to be taken back to his house. He succumbed to his injuries on 24.11.2001. PW-8 who conducted the post-mortem on the body of Iqurar Ali, noted the following ante-mortem injuries:\n\"(1) Fire arm wound of entry 0.5 cm x 0.08 cm below in middle part of chin. Margins are incised. No blackening and tattooing seen around the wound, on explanation. Bullet traversed through brain substance, strike at occipital bone. There is fracture of occipital bone rebound through brain substance back of neck and recovered from space between C5 & C6 from muscle, fracture of C5 cervical vertebra.\n(ii) Abrasion 1.5 cm x 1 cm on the left pinna of tragus.\"\n9. According to PW-8, the death of Iqurar Ali was due to hemorrhage and coma resulting from the ante-mortem fire-arm injuries sustained by the deceased. Therefore, it was established that the death of Iqurar Ali was also a homicidal death on account of fire-arm injuries sustained by him. PW-6 also examined other injured persons including PW-1 Gayyur, PW-3 Ayyub and PW-4 Ashraf and seven others. According to the report, injuries were all due to fire-arms.\n10. In all these appeals, the main submissions were made by Shri S.R. Singh, learned senior counsel for the appellants, in Criminal Appeal Nos.1157/2008, 1158/2008, 1161/2008 and 1164/2008 and by Mr. Ashok Kumar Sharma counsel for the appellant in 1156/2008. The other learned counsel appearing for the appellants in Criminal Appeal Nos.1166, 1159 and 1155 of 2008 adopted the submissions of the above counsel. On behalf of the State, Dr. Abhishek Attrey addressed arguments. Mr. Yunus Malik appeared and made submissions on behalf of the de facto complainant, who was impleaded pursuant to the orders passed in Crl.M.P. 22687/2011 in Crl.A.1160 of 2008.\n11. Having heard learned counsel for the appellants, the sum and substance of the submission of learned counsel was that there was delay in lodging of the FIR, that there were serious lacunae in the case of the prosecution framed against the appellants in that the evidence did not establish the offence alleged against the appellants, that there was long delay in sending express report to the Magistrate and thereby, violation of S. 157 Cr.P.C. was committed and consequently, the conviction could not have been ordered.\nAccording to learned counsel, when PW-3 Ayyub was alleged to have been accosted around 8.30 to 8.45 a.m. by four persons in the field, it was hard to believe that within a matter of about an hour, there could have been formation of an unlawful assembly by as many as 15 persons with fire-arm weapons, both licenced and country- made, to cause such gruesome and murderous attacks on the deceased and other injured persons, in order to invoke Ss. 302 and 307 read with S. 149 IPC, along with Ss. 147 & 148 IPC. It was contended that if at all the offence of common object can be attributed to the appellants, it could have been only u/s. 141 'third', which cannot be applied to the nature of offences alleged against the persons, namely, Sections 302, 307 read with 149, as well as 147 & 148 IPC. As far as the first appellant in Cri. Appeal No.1165/2008 was concerned, it was contended that he was totally alien to the village where the occurrence took place as he belonged to a different village and that he had been falsely roped in. It was also contended that there was a communal tension in the village as admitted by PW-13 and that under political pressure the police implicated all the persons in the village who were holding licenced arms. Reliance was placed on Jang Singh 2000 Indlaw SC 3699 and others v. State of Rajasthan - 2001 (9) SCC 704 2000 Indlaw SC 3699 in support of the submission of S. 157 Cr.P.C.\n12. As against the above submissions, learned counsel for the State argued that non-recovery of bullets or pellets or not sending the guns for ballistic expert report by itself may not vitiate the case of the prosecution, when there was direct evidence relating to the occurrence and injuries inflicted by the appellants on the deceased and other injured persons.\n13. Learned counsel contended that when after PW-3 was accosted between 8.30 and 8.45 a.m. and who escaped from the onslaught of the appellants in the field, the appellants had more than an hour, inasmuch as they reached the place of occurrence only by 10 a.m. and, therefore, they had enough time to gather other assailants and indulge in the gruesome act. As far as the scope of S. 149 was concerned, learned counsel contended that the said submission was satisfactorily met in the judgments of the Court below and the same does not merit any consideration. Learned counsel for PW-2 also adopted the submissions of the learned counsel for the State.\n14. Having heard learned counsel for the respective parties and having perused the material papers placed before us including the judgment of the High Court as well as that of the trial Court, we find that the following relevant questions require to be addressed, namely:\n(1) What is the interpretation to be placed on S. 141 'third' vis--vis S. 149 IPC,\n(2) Whether the so-called delay in forwarding express report to the Magistrate after three days from the date of occurrence, namely, on 24.11.2001 would vitiate the case of the prosecution.\n(3) Whether the prevalence of communal riots at the time of occurrence merits acceptance in order to extricate the appellants from the conviction imposed.\n(4) Whether there was any lacunae in the case of the prosecution based on various points raised on behalf of the appellants.\n15. We wish to deal with the first question in the last.\n16. As far as the second question is concerned, it is based on the factum of the time taken in forwarding the express report to the Magistrate. Since in Exhibit Ka-47 namely, the First Information Report, the concerned Court put the date 24.11.2001 after the expression 'seen' and there being no other endorsement prior or subsequent to 21.11.2001 mentioning any other date, there is no doubt that the express report was forwarded to the Magistrate only on 24.11.2001. The question, therefore, for consideration is whether that by itself would vitiate the whole case of the prosecution. The submission is that since there was such a wide time gap as between the alleged date of occurrence, namely, 21.11.2001 and the forwarding of the report to the Magistrate on 24.11.2001, there was every chance of antedating the FIR. In support of the said submission based on S. 157 of Cr.P.C., reliance was placed upon the decision reported in Jang Singh 2000 Indlaw SC 3699 (supra). In the first blush, though the said submission appears to be very sound, on a detailed analysis, we find that it is without any substance for more than one reason.\n17. In the first place, it is not shown as to how such a delay caused any prejudice to the accused. Except merely stating that the three days delay in forwarding the express report belies the case of the prosecution as alleged, nothing else was shown in support of the said submission. In fact the trial Court dealt with this very submission. The trial Court has noted that the investigating officer was not questioned at all about the reasons for not sending the report prior to 24.11.2001. It has further noted that in the 'Panchnama' of the deceased Mehroof, the crime was clearly mentioned along with the relevant sequence of crime. The trial Court has therefore, found that without recording the First Information Report on that very day, namely, 21.11.2001, the crime number could not have been mentioned in the 'Panchnama'.\n18. In this context, when we refer to the decision relied upon by the learned counsel for the appellants, namely, Jang Singh 2000 Indlaw SC 3699 (supra), we find that this Court has noted the vitiating factors in the entire case of the prosecution, including the delay in sending the First Information Report to the Magistrate for which there was no explanation. By merely referring to the said factor along with the other serious defects noted by this Court, it was concluded that the case of the prosecution was not made out. We, therefore, do not find any scope to apply the said decision as a proposition of law in order to apply the same to the case on hand.\n19. Per Contra, it will be appropriate to refer to a reasoned decision of this Court reported in Sandeep v. State of Uttar Pradesh - 2012 (6) SCC 107 2012 Indlaw SC 505, wherein this very Bench dealt with the implication of S. 157 Cr.P.C. and held as under in paragraph 32:\n\"It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under S. 157 Cr.P.C. instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20- 11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab 1972 Indlaw SC 177 wherein this Court has clearly held that where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.\nApplying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Ishwar Singh v. State of U.P. 2007 Indlaw SC 727 and Subash Chander v. Krishan Lal 1999 Indlaw SC 1286.\"\nWe can also refer to a recent decision of this Court in Bhajan Singh @ Harbhajansingh and Ors. v. State of Haryana - (2011) 7 SCC 421 2011 Indlaw SC 524. Relevant paras 24 and 25 are as under:\n\" It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante- dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression \"forthwith\" mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.\nIn view of the above, we are in agreement with the High Court that there was no delay either in lodging the FIR or in sending the copy of the FIR to the Magistrate. It may be pertinent to point out that the defence did not put any question on these issues while cross-examining the investigating officer, providing him an opportunity to explain the delay, if any. Thus, we do not find any force in the submissions made by the learned counsel for the appellants in this regard.\"\nAgain in Shivlal & Another v. State of Chhattisgarh- AIR 2012 SC 280 2011 Indlaw SC 663, the significance and relevance relating to sending a copy of FIR to the Illaqa Magistrate has been explained as under in paragraph 15:\n\".........the Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159, Cr.P.C., if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante- timed or ante-dated or investigation is not fair and forthright. In a given case there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to Illaka Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case.\"\nIn the case on hand nothing was put to PW-13(Investigating Officer) as regards the alleged delay in sending the FIR to the Magistrate and or to any prejudice was caused to the appellants on that account. It would have enabled the Investigating Officer to explain the reason for the delay. In any event nothing has been shown as to any prejudice caused to the appellants on the ground of alleged delay in sending a copy of FIR to the Magistrate.\n20. When we apply the above principle laid down in the said decision for the reasons to be adduced for the other questions to be dealt with in this judgment, we hold that there was no dearth in the process of investigation based on the factum of the alleged occurrence on 21.11.2001, as reported by the complainant PW-2 and the mere delay in forwarding of the express report to the Magistrate has not caused any dent in the case of the prosecution. In other words, we have no difficulty in stating that the FIR was factually recorded without delay and the investigation started on the basis of the FIR and in the absence of any other infirmity in that respect, the delay in forwarding the report to the Magistrate does not in any way vitiate the case of the prosecution.\n21. With this we come to the next question. The submission on behalf of the appellants was that there was communal tension prevailing and, therefore, if in that milieu, someone was injured, those who were possessing licenced arms in the village cannot be held responsible, even if it resulted in the death of two individuals and injuries to several other persons. In support of the said contention, reference was made to the deposition of PW-13, the Investigating Officer. To a stray question put to him, PW-13 answered that;\n\"there had been gross tension present in the said village which had been communal in nature and scope thereof. I had neither recorded the time of commencement of any proceeding, in the said village nor, had I recorded culmination thereof, in the contents of leaflet No.1 of my Case Diary nor further, had I copied down the contents of the Inquest-Report [Panchaytnama], in the contents thereof.\"\n22. Reference was also made to a suggestion made to the said witness, which was denied and the statement was to the following effect:\n\"It is also wrong and incorrect, to accordingly allege and consequently suggest, to the effect that, on account of the then prevailing communal tension, in the said village, subsequently in consultation of all licensed weapon-holders of the community of accused of the said village, the present accused, as a matter of fact, had since been implicated, in a belied manner, on account of undue pressure, in the present matter. However, this fact remains true and correct, to the effect that, except the licensed arm- holders belonging, to the community of accused, there was no other licensed arm-holder or, any other member, from their community present, at the said spot of occurrence.\"\n23. Except making the said bald suggestion, which was rightly denied, there was nothing brought out or placed either in the evidence of the prosecution witness or by way of defence evidence before the court, as to what was the nature of communal tension, who were all communally and inimically disposed of and when such communal friction occurred. In fact, what all was stated in the S. 313 statement, was 'false implication' due to enmity and political reasons. Political difference and communal difference are two different factors and, therefore, it is not known why such a specific stand of communal tension was not taken in the S. 313 questioning. If really there was any communal tension in the village, there would have been any number of witnesses who would have come forward and stated the same before the Court, as none would have been prejudiced nor affected by making such a true statement before the Court. When we consider the oral evidence of PW-13, namely, that there had been gross tension present in the village, as there was nothing recorded in the police station, it will be a dangerous proposition if simply based on the said isolated statement, one were to conclude that the present occurrence and its aftermath were solely due to communal tension. It was not even suggested to any of the witnesses that there was communal hatred as between those witnesses examined in support of the prosecution or that it was due to such communal tension they suffered such injuries, as well as casualties in their family. In fact, we are of the view that there are too many incongruities in the said submission, inasmuch as the said submission is made in desperation and does not deserve any consideration. Therefore, the said submission is also liable to be rejected as meritless.\n24. With this, we come to the last of the questions as to whether there were any lacunae in the case of the prosecution based on the submissions of the learned counsel. Before dealing with the submissions, we wish to note that though PWs-1 to 4 were closely related to the deceased, they also suffered fire-arm injuries at the hands of the appellants and the injuries sustained by them were duly supported by medical evidence, both documentary as well as oral, namely, through PWs-6, 7, 8 and 9. There was nothing pointed out in the evidence of the above witnesses, namely, PWs-1 to 4, except stating that since because they were closely related, their version about the occurrence was not true in order to discredit their version. Even before the Courts below the only argument made was that the said witnesses were related to the deceased and that they falsely implicated the appellants. In our considered opinion, merely based on such a flimsy submission as regards the credibility of those witnesses, the evidence of those injured eye witnesses cannot be discarded.\n25. In fact with regard to the reliance to be placed upon the injured witnesses, this Court has held in very many decisions as to the due credence to be given. The following decisions can be referred to for that purpose:-\n(1) State of Maharashtra v. Chandraprakash Kewalchand Jain -1990 (1) SCC 550 1990 Indlaw SC 661\n(2) State of U.P. v. Pappu - 2005 (3) SCC 594 2004 Indlaw SC 1500\n(3) State of Punjab v. Gurmit Singh - 1996 (2) SCC 384 1996 Indlaw SC 1087\n(4) State of Orissa v. Thakara Besra - 2002 (9) SCC 86 2002 Indlaw SC 243\n(5) State of H.P. v. Raghubir Singh - 1993 (2) SCC 622 1993 Indlaw SC 365\n(6) Wahid Khan v. State of M.P. - 2010 (2) SCC 9 2009 Indlaw SC 1583\n(7) Rameshwar v. State of Rajasthan - AIR 1952 SC 54 1951 Indlaw SC 24\nApplying the principles laid down in those decisions, we hold that on this ground there is no scope to interfere with the orders impugned in these appeals.\n26. It was thus contended that there was delay in filing the FIR. In fact going by the version of PWs-2 and 3 supported by PWs-1 and 4, the occurrence took place at 10 a.m. in the morning. The matter was reported by PW-2 to the police by 11.45 a.m. and it has come in the evidence that the distance between the place of occurrence and the police station was 12 Kms. There was nothing brought out on the defence to contradict the said statement made by the prosecution witnesses. It was also stated that PW-2 had to reach the police station only through a bullock cart. In such circumstances, the lodging of the FIR by 11.45 a.m., cannot be held to be highly delayed. When it is stated that the occurrence took place at 10 a.m., where more than ten persons suffered injuries and one person died on the spot and while another person died after three days, it is quite possible that every member of the injured party would have taken the immediate required time to attend to the injured, by moving them to the hospital and arranging the required transport for them, while also taking stock of the situation in order to proceed further for lodging the complaint with the police. That by itself would have taken not less than an hour for them and only thereafter, a decision might have been taken by PW-2 to go to the police station for lodging the FIR. Therefore, it can never be held that there was any delay at all in reporting the matter to the police, nor in registering the FIR.\n27. It was contended that according to the prosecution when the accused party attacked the injured party apart from the family members of the injured party, local villagers were also present but yet, none was examined by way of independent witness. The said submission has been rightly rejected by the High Court by giving reasons. The High Court has rightly held that though the injured witnesses were related to each other, having regard to the nature of evidence tendered by them, there were no good grounds to discard their version. It has found that their evidence was natural and there was nothing to find fault with their version. It has further held rightly that it is the quality of the witness and not the quantity that matters. It has also taken judicial notice of the fact that the public are reluctant to appear and depose before the Court, especially in criminal cases because of many obvious reasons. We fully endorse the said conclusion of the High Court, while dealing with the said submission made on behalf of the appellants.\n28. It was then contended that the investigating officer though visited the spot did not detect any empty cartridges or bullets. PW-13 in his evidence has stated that he had neither detected any empty cartridges nor any pellets on the spot of occurrence. If he had not detected it, then the reason is as simple as that. It is not the case of the appellants that pellets were strewn all around the place of occurrence visibly, but yet the investigating officer failed to collect and place even some of them before the Court. When there was enough evidence to support the version of the prosecution that the appellants, some of whom were in possession of licenced arms and others were holding unlicenced pistols and the shooting with those arms was sufficiently established by the version of the injured eye-witnesses, we fail to understand as to how non- detection of pellets or bullets will be of any consequence as a vitiating factor to defeat the case of the prosecution. It is an undisputed fact that both the deceased died of fire-arm injuries and all the injuries suffered by others were also firm-arm injuries. The said contention also therefore, deserves to be rejected.\n29. The contention about not noting the route of arrival and route of escape, in our considered opinion, are very flimsy submissions and do not deserve any consideration at all. It was then contended that PW-3 was initially accosted by A1 to A-4 at around 8.30 to 8.45 a.m. and that he reported back at 9.00 to 9.15 a.m. at his house, by escaping from their clutches and that the alleged occurrence took place at 10 a.m. and, therefore, within such a short time, there could have been no scope for the appellants to gather fifteen persons to cause the attack on the injured party. We have concluded in the earlier part of our judgment that a one hour gap in a village was more than sufficient to gather any number of persons, especially when the purpose of such gathering was to cause a physical attack on a weak and unarmed party. It is relevant to note that while thirteen persons were seriously injured, of whom two succumbed to injuries, not even a scratch was reported against any of the appellants. There was not even a suggestion that any of the injured party was in possession of any weapon, like even a stick or a 'lathi'. Therefore, all the above factors only go to show that the plea of lack of sufficient time to gather more number of persons can hardly be a ground of defence, as against the overwhelming direct evidence present before the Courts below.\n30. It will be relevant to take note of the alleged motive, which was not seriously disputed on behalf of the appellants. It was unfortunate that in spite of the fact that members of the injured party earnestly attempted to dissuade the situation by pacifying the appellants, no good sense appeared to have prevailed upon the appellants, who seem to have taken an upper hand and caused the onslaught on the unarmed members of the injured party, of whom one was a female. The submissions of the appellants, therefore, do not merit consideration on this ground as well.\n31. A feeble submission was made that the FIR does not even reveal that PW- 2 was injured. On the other hand, a reading of the FIR discloses that PW- 2 specifically mentioned that he along with others was injured due to the onslaught of the appellants. Yet another feeble submission was that PW-3 stated that they were all standing outside the house at the time when the accused party approached the place of occurrence, while the case of the prosecution was that only after the arrival of the accused the members of the injured party came out of their house. We see absolutely no substance in the said submission as we do not find that such a silly discrepancy can cause any dent in the case of the prosecution, which is otherwise supported by overwhelming evidence, both oral as well as documentary.\n32. On behalf of the first appellant in Criminal Appeal No. 1165 of 2008, it was contended that he belonged to a different village and that he was falsely implicated. In fact, the said contention was dealt with by the trial Court extensively, which has noted that the said accused claimed that he was the resident of the village Manduwala of District Saharanpur and that he was actually present at Saharanpur on that date. In the S. 313 statement, the said accused had admitted that he was 50 years old and at the time of the incident he would have been 46-47 years old, while the family register which was produced at his instance disclosed that his age was 38 years. The trial Court, therefore, held that by relying upon such an age old register, the abode of the said accused at the time of occurrence could not have been arrived at. On the other hand, the evidence of PW-1 disclosed that the father-in-law of the said accused is the resident of the village concerned, that since he had no male child, the said accused was living along with his father-in-law and that in the family register of the year 1999 produced by the prosecution, as well as the copy of the electoral list, the name of the said accused was clearly mentioned. The contention on behalf of the said accused that due to enmity with his father-in-law he was implicated, was rejected by saying that if that was the case, there was no reason for the prosecution to leave out the father-in-law and implicate the son-in-law alone. The said point raised on behalf of the said accused also, therefore, does not merit any consideration. We, therefore, hold that none of the points raised alleging lacunae in the case of the prosecution merit any consideration and the same are, therefore, rejected. The said question is also answered against the appellants.\n33. With that we come to the main question as to the interpretation to be given to S. 141 'third', read along with Section 149, IPC. In the forefront, we wish to highlight the extent of power of this Court in the matter of interpretation of words in the provision of a statute. In this context, at the outset, we wish to quote the words of Justice G.P. Singh in the celebrated book on 'Principles of Statutory Interpretation', where the learned author in Chapter II under the caption 'Guiding Rules' in sub- para 1(d) stated as under, under the caption 'Departure from rule':-\n\"(d) Departure from the rule\nIn discharging its interpretative function, the Court can correct obvious drafting errors and so in suitable cases \"the court will add words, or omit words or substitute words\". But \"before interpreting a statute in this way the Court must be abundantly sure of three matters : (1) the intended purpose of the statute or provision in question, (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.\" Sometimes even when these conditions are satisfied, the court may find itself inhibited from interpreting the statutory provision in accordance with underlying intention of Parliament, e.g. when the alteration in language is too far reaching or too big or when the subject matter calls for strict interpretation such as a penal provision.\" (See Inco Europe Ltd. v. First Choice Distribution (a firm) (2000) 2 ALL ER 109, p.115 (HL)\"\n(Emphasis added)\n34. In the decision of this Court reported in Surjit Singh Kalra v. Union of India and another - 1991 (2) SCC 87 1991 Indlaw SC 1057, while laying down the principle of purposive construction to be adopted by Courts, it has been held as under in paragraph 20 and 21:-\n\" True it is not permissible to read words in a statute which are not there, but \"where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words\" (Craies Statute Law, 7th edn., p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan Lal Sowcar 1988 Indlaw SC 423 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. (See: Sirajul Haq Khan v. Sunni Central Board of Waqf 1958 Indlaw SC 213.)\"\n35. The principle statute in Maxwell's Interpretation of Statutes under the Chapter \"Exceptional Construction\" is also relevant, which was applied in one of the judgments of this Court reported in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. - 2008 (4) SCC 755 2008 Indlaw SC 415. The said principle has been extracted in para 53 of the said judgment, which reads as under:-\n\"In the chapter on \"Exceptional Construction\" in his book on Interpretation of Statutes, Maxwell writes:\n\"WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning.\"\n36. Keeping the above basic principles in mind, we considered the submission of Shri S.R. Singh, learned senior counsel who appeared for the appellants in Criminal Appeal Nos.1157/2008, 1158/2008, 1161/2008 and 1164/2008. According to the learned counsel, u/s. 141 'third', the expression 'other offence' used therein for the purpose of ascertaining the common object of a person in an unlawful assembly, would only be relatable to offences similar to those such as, mischief or criminal trespass, referred to in the said clause. The learned senior counsel submitted that such an interpretation should be laid by applying the principle of ejusdem generis. The learned counsel, therefore, contended that if that be the legal position, reading Section 141'third' and Sections 147, 148 and 149 together, none of the offences referred to in Ss. 147 and 148 or any of the other grave offences falling under other provisions of the Indian Penal Code will get attracted. The learned counsel, therefore, contended that conviction for offences u/s. 302 read with Ss. 149 and 307 read with S. 149 IPC, as well as Ss. 147 and 148 of IPC with the aid of Section 141, could not have been made. Though the said submission looks quite attractive in the first blush, on a deeper scrutiny of the other provisions contained in the Code, we are afraid that such a narrow interpretation, which is sought to be applied by the learned senior counsel cannot be made.\n37. In this context, S. 40 IPC, which defines 'offence' is also required to be noted. In order to appreciate the submission and to arrive at a correct conclusion, we feel that S. 40 IPC, Sections 141, 147, 148 and 149 are required to be extracted which are as under:-\n\"40. \"Offence\"- Except in the Chapters and sections mentioned in cls. 2 and 3 of this section, the word \"offence\" denotes a thing made punishable by this Code.\nIn Chapter IV, [Chapter VA] and in the following section, namely, sections [64,65,67,71], 109,110,112,114,115,116,117, [118,119,120] 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word \"offence\" denotes a thing punishable under this code, or under any special or local law as hereinafter defined.\nAnd in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word \"offence\" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.\n141. Unlawful assembly - An assembly of five or more persons is designated an \"unlawful assembly\", if the common object of the persons composing that assembly is-\nFirst- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or\nSecond- To resist the execution of any law, or of any legal process; or\nThird - To commit any mischief or criminal trespass, or other offence; or\nFourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or\nFifth - by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.\nExplanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.\n147. Punishment for rioting- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.\n148. Rioting, armed with deadly weapon- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.\n149. Every member of unlawful assembly guilty of offence committed in prosecution of common object- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence\"\n38. S. 141 'third', clearly mentions that an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly as among other offences namely, mischief or criminal trespass or commission of other offence. A literal interpretation, therefore, only means that apart from the offence of mischief and criminal trespass, all other offences would fall within the said clause 'third' mentioned in S. 141. Other related sections falling under the said Chapter VIII are up to S. 160. Reading S. 141 'third' along with Section 149, if the commission of any other offence apart from mischief or criminal trespass and such commission of offence was by a member of an unlawful assembly, the prescription of common object will automatically get satisfied. When we refer to S. 144 in this context, we find that joining an unlawful assembly armed with a deadly weapon, which is likely to cause death, can be inflicted with a punishment prescribed therein. If the interpretation placed by learned senior counsel is accepted, we wonder whether the prescription placed in S. 144 could be held to be in consonance with s. 141 'third'. The definite answer can only be in the negative. If mere possession of a deadly weapon by a member of an unlawful assembly, which is likely to cause death would attract Section 141'third' as a corollary, it will have to be held that the expression 'or other offence' mentioned in S. 141 should without doing any violence to the said provision, include all other offences apart from the offence of mischief or criminal trespass. Similar will be the interpretation that can be made relating to the offence, namely, rioting prescribed u/s. 146 punishable under Ss. 147 as well as 148, namely, rioting, armed with deadly weapons.\n39. The principle 'ejusdem generis' means 'where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed'. The learned senior counsel for the appellants, therefore, contended that since the expression \"other offence\" u/s. 141 'third' has been used along with the offence, mischief or criminal trespass, it can only relate to similar such offences of the same species and not commission of all other offences as in the case on hand, namely, murder or attempt to commit murder.\n40. When we test the said submission by making reference to the Chapter, in which the offence of mischief and trespass are specified in the Code, we are able to expose the glaring fallacy in the submission of the learned senior counsel. Mischief and criminal trespass fall under Chapter XVII. The caption of the said Chapter is \"of offences against property\". The offences dealt with in the said Chapter are governed by Ss. 378 to 462. The offences dealt with apart from mischief and trespass are theft, extortion, robbery, dacoity, dacoity with murder, misappropriation of property, criminal breach of trust, dealing with stolen property and cheating.\n41. While referring to the offence of mischief, Ss. 435 to 438 deals with mischief by fire or any explosive substance with the intent to destroy a house or other properties or to destroy or make unsafe a decked vessel etc., for which imprisonment for life or a term which may extend to ten years apart from fine can be imposed. While dealing with the offence of trespass u/ss. 449 and 450, whoever commits house- trespass for committing an offence punishable with death can be punished for imprisonment for life or rigorous imprisonment for a term not exceeding ten years, apart from fine. Similar such provisions for other types of criminal trespass have also been provided for in the said Chapter.\n42. We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression \"other offence\" in S. 141 'third', it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression \"other offence\" should be restricted only to that extent. As pointed out by us above, the offence of mischief and trespass could also be as grave as that of an offence of murder, for which the punishment of life imprisonment can be imposed as provided for under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of learned senior counsel for the appellants to import the principle of 'ejusdem generis' to S. 141 'third', cannot be accepted.\n43. The submission of the learned senior counsel cannot also be countenanced by applying S. 40 of the Code, which specifically mentions as to how the term 'offence' will have to be construed. In the main clause of the said section it has been clearly set out that the word \"offence\" denotes a thing made punishable by this Code except the Chapters and Sections mentioned in cls. 2 and 3 of the said section. Therefore, going by the main clause of Section 40, the word \"offence\" since denotes the thing made punishable under the Code, 'other offence' mentioned in S. 141 'third', can only denote to offences, which are punishable under any of the provisions of the Code. Therefore, by applying the main clause of Section 40, it can be straight away held that all offences referred to in any of the provisions of the Code for which the punishment is provided for would automatically fall within the expression \"other offence\", which has been used in S. 141 'third'.\n44. What has been excepted in the main clause of S. 40 are what has been specifically mentioned in sub-cls. 2 and 3 of the said section. As far as sub-cl. 2 is concerned, while making reference to Chapter IV and Chapter VA, as well as other sections mentioned therein, it states that the word \"offence\" would denote a thing punishable under the Code, namely, Indian Penal Code or under any special or local law, which have been defined to mean a law applicable to a particular subject or a law applicable only to a particular part of India. When we read sub-cl. 3 of Section 40, S. 141 has been specifically mentioned in the said sub-clause. To understand the purport of the said clause, it will be worthwhile to extract that part of the provision which reads;\n\"And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word \"offence\" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine\".\n45. It is quite apparent that the said sub-clause in regard to the offences under any special or local law, wherein punishment of imprisonment for a term of six months or upwards with or without fine is prescribed, the meaning assigned in those special or local laws are to be imported while invoking S. 141 or other sections mentioned in the said sub-cl. 3 of S. 40.\n46. Therefore, a conspectus reading of S. 40 makes the position abundantly clear that for all offences punishable under the Indian Penal Code, the main clause of S. 40 would straight away apply in which event the expression \"other offence\" used in S. 141 'third', will have to be construed as any offence for which punishment is prescribed under the Code. To put it differently, whomsoever is proceeded against for any offence punishable under the provisions of the Indian Penal Code, S. 40 sub-cl. 1 would straight away apply for the purpose of construing what the offence is and when it comes to the question of offence under any other special or local law, the aid of sub-cls. 2 and 3 will have to be applied for the purpose of construing the offence for which the accused is proceeded against.\nTherefore, having regard to sub-cl. 1 of S. 40 of the Code read along with S. 141 'third', the argument of learned senior counsel for the appellants will have to be rejected. We are, therefore, of the firm view that only such a construction would be in tune with the purport and intent of the law makers while defining an unlawful assembly for commission of an offence with a common object, as specified u/s. 141 of the Code. In the case on hand, since mo special law or local law was attracted and the accuses were charged only for the offence under the Indian Penal Code, S. 40(1) gets attracted along with S. 141 'third' IPC. Having regard to such a construction of ours on Section 141, read along with S. 40 IPC, the offence found proved against the appellants, namely, falling under Ss. 302 read with 149, 307 read with 149 along with 147 and 148 of the Code for which the conviction and sentence imposed by the Court below cannot be found fault with.\n47. In the light of our above conclusions on the various submissions made by the counsel for the appellants, we do not find any merit in these appeals. The appeals, therefore, fail and the same are dismissed. Appellant Soma in Criminal Appeal No.1158/2008 who is on bail is directed to surrender before Magistrate forthwith for serving out the remaining period of sentence, if any, failing which the Chief Judicial Magistrate Haridwar is directed to take him into custody and send him to jail to serve out the sentence, if any. A copy of the judgment be sent to the said CJM by the Registry forthwith.\nAppeals dismissed\n"}
+{"id": "6JDWYlgAAC", "title": "", "text": "Shyamal Saha and another v State of West Bengal\nSupreme Court of India\n\n24 February 2014\nCr.A. No. 1490 of 2008\nThe Judgment was delivered by : Madan B. Lokur, J.\n1. This appeal questions the limits of interference by the High Court in an appeal against the acquittal of an accused by the Trial Court. In our opinion, the High Court ought not to have interfered in the appeal before it with the acquittal of the appellants by the Trial Court.\nFacts:\n2. The sequence of events, as it has unfolded from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant of the Calcutta Electric Supply Company had opened across the river Ganges in Mauza Bhabanipur Char, District Hooghly, West Bengal.\n3. Paritosh Saha was with his mother Bidyutprava Saha (PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter, he and his nephew Animesh Saha (CW-1) aged about 10 years went for a walk on the banks of the river Ganges where they met Gopal Saha, with whom they struck a conversation. At that time, the appellants Shyamal Saha and Prosanta @ Kalu Kabiraj also came there and called Paritosh to go across the river to see the Char (island). Animesh also expressed his desire to go to the Char but Shyamal asked him to return home.\n4. When the three of them (Paritosh, Shyamal and Prosanta) were about to board Asit Sarkar's boat, they were joined by Dipak Saha (PW-6) and Panchu Sarkar (PW-11). The five of them then went across the river Ganges and, according to Animesh, when they reached the other side of the river, Dipak and Panchu went towards the thermal plant while Paritosh, Shyamal and Prosanta went in a different direction towards the jungle. Thereafter, Animesh came back to his house.\n5. According to Bidyutprava Saha, at about 8.00 or 8.30 p.m. Shyamal and Prosanta came to her house and asked the whereabouts of Paritosh.\n6. According to Paritosh's brother Amaresh Saha (PW-1) at about 10.00 p.m. Shyamal and Prosanta came to his house and enquired about Paritosh.\n7. Early next morning on 20th May, 1995 Bidyutprava Saha noticed that Paritosh had not eaten his dinner which she had kept for him. She mentioned this to Amaresh and also informed him that Shyamal and Prosanta had come and met her the previous evening at about 8.00 or 8.30 p.m. During the course of this conversation, Animesh revealed to his father Amaresh that he had seen Paritosh cross the river Ganges the previous evening in a boat along with Shyamal and Prosanta.\n8. On receiving this information Amaresh enquired from Shyamal and Prosanta the whereabouts of Paritosh but they informed him that they had seen him across the river with some boys. Later in the day, Amaresh was informed by Dipak and Panchu that they had crossed the river along with Paritosh, Shyamal and Prosanta. After crossing the river, Dipak and Panchu had gone to see the thermal plant and the others had gone in another direction towards the jungle. Dipak and Panchu pleaded ignorance of the subsequent movements of Paritosh.\n9. Later in the evening at about 7.30 p.m. Amaresh Saha lodged a First Information Report regarding the disappearance of Paritosh.\n10. Sometime in the morning of 21st May, 1995 the corpse of Paritosh was found in the river tied to two iron chairs with a napkin around his neck. The police were informed about the recovery of the dead body and an inquest was carried out and the iron chairs and napkin were seized in the presence of some witnesses. It was noticed that a part of Paritosh's skin was burnt perhaps due to pouring of acid.\n11. On these broad facts, investigations were carried out and Shyamal and Prosanta were charged with having abducted Paritosh and thereafter having murdered him.\nDecision of the Trial Court:\n12. In its judgment and order dated 29th July, 1998 the Trial Court held that neither the charge of abduction nor the charge of murder was proved against Shyamal and Prosanta and therefore they were acquitted. Session Trial Case No. 21 of 1997 decided by the Additional Sessions Judge, Hooghly As far as the charge of abduction is concerned, that is not in issue before us and need not detain us any further.\n13. The acquittal by the Trial Court was primarily in view of the absence of consistency in the testimony of Amaresh, Bidyutprava Saha, Animesh, Dipak and Panchu. For example, it was observed that if Animesh had in fact informed Amaresh and Bidyutprava Saha that he had gone to the banks of the river with Paritosh, it would have been reflected in their testimony. Similarly, Bidyutprava Saha did not say anything about Paritosh going to the river although she saw him at about 5.00 or 5.30 p.m. on 19 th May, 1995.\nThe Investigating Officer, Sub-Inspector Debabrata Dubey (PW-16) had yet another version of the events. His testimony indicated that many of the facts stated in the oral testimony of the witnesses were not put across to him at any time, suggesting considerable padding and embellishments in their testimony. As such, it was not possible to lend credence to the testimony of the prosecution witnesses and the accused were entitled to the benefit of doubt. Additionally, the Trial Court noted that it was a case of circumstantial evidence and also that there was no motive for Shyamal and Prosanta to have murdered Paritosh.\nDecision of the High Court:\n14. Feeling aggrieved by their acquittal, the State preferred an appeal before the Calcutta High Court against Shyamal and Prosanta. The appeal was allowed by a judgment and order dated 11th March, 2008. State of West Bengal v. Shyamal Saha and another, 113 CWN 5052008 Indlaw CAL 413 The decision of the Trial Court was reversed and they were convicted for the murder of Paritosh and sentenced to imprisonment for life and a fine of Rs.5000/- each and in default of payment to undergo rigorous imprisonment of one year each.\n15. According to the High Court, the case of the prosecution hinged, essentially, on the evidence of Dipak and Panchu, as well as of Animesh. The High Court considered their evidence and held that all five (Dipak, Panchu, Paritosh, Shyamal and Prosanta) crossed the river in a boat in the evening at about 5.30 p.m. on 19th May, 1995. This was supported by the testimony of Animesh who also wanted to go along with all of them but was prohibited from doing so by Shyamal.\n16. It was also held, on the basis of the post mortem report given by Dr. P.G. Bhattacharya (PW-15) and his testimony that Paritosh died soon after 5.30 p.m. on 19th May, 1995. The High Court came to this conclusion on the basis of the doctor's statement that the death took place between 65 and 70 hours before he conducted the post mortem examination. Since the post mortem examination was conducted at about 12.00 noon on 22nd May, 1995 working backwards, it appeared that Paritosh died soon after 5.30 p.m. on 19th May, 1995.\n17. Finally, the High Court held that Paritosh was last seen with Shyamal and Prosanta and therefore they had to explain the events that had occurred after they were last seen together. In the absence of any explanation offered by them, the last seen theory would apply and it must be held that Shyamal and Prosanta had murdered Paritosh.\nDiscussion on the law:\n18. Aggrieved by their conviction and sentence, Shyamal and Prosanta have preferred this appeal. The primary submission made on their behalf was to the effect that the High Court ought not to have interfered in the acquittal by the Trial Court particularly, in a case of circumstantial evidence. It was also submitted that the evidence on record points to the fact that they were made scapegoats by the prosecution. Of course, this was opposed by learned counsel for the State.\n19. The crucial issue for consideration, therefore, relates to interference by the High Court in an acquittal given by the Trial Court. Recently, in Joginder Singh v. State of Haryana, 2013 Indlaw SC 703 it was held, after referring to Sheo Swarup v. King Emperor, AIR 1934 PC 227 1934 Indlaw PC 30 that\n\"Before we proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence brought on record, it is fruitful to recapitulate the law enunciated by this Court pertaining to an appeal against acquittal. In Sheo Swarup 1934 Indlaw PC 30 (supra), it has been stated that the High Court can exercise the power or jurisdiction to reverse an order of acquittal in cases where it finds that the lower court has \"obstinately blundered\" or has \"through incompetence, stupidity or perversity\" reached such \"distorted conclusions as to produce a positive miscarriage of justice\" or has in some other way so conducted or misconducted himself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result.\"\nUnfortunately, the paraphrasing of the concerned passage from Sheo Swarup 1934 Indlaw PC 30 gave us an impression that the High Court can reverse an acquittal by a lower court only in limited circumstances. Therefore, we referred to the passage in Sheo Swarup 1934 Indlaw PC 30 and find that what was stated was as follows:\n\"There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has \"obstinately blundered,\" or has \"through incompetence, stupidity or perversity\" reached such \"distorted conclusions as to produce a positive miscarriage of justice,\" or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.\"\nThe legal position was reiterated in Nur Mohammad v. Emperor, AIR 1945 PC 151 1945 Indlaw PC 46 after citing Sheo Swarup 1934 Indlaw PC 30 and it was held:\n\"Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there; that is, that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.\"\nWe are mentioning this only to dispel the possibility of anyone else getting an impression similar to the one that we got, though nothing much turns on this as far as this case is concerned.\n20. The entire case law on the subject was discussed in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 2007 Indlaw SC 121 beginning with perhaps the first case decided by this Court on the subject being Prandas v. State., AIR 1954 SC 36 1950 Indlaw SC 66 It was held in Chandrappa as follows:\n\"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.\n(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.\n(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.\n(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.\n(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\"\n21. The principles laid down in Chandrappa were generally reiterated but mainly reformulated in Ganpat v. State of Haryana, (2010) 12 SCC 59 2010 Indlaw SC 790 though without reference to Chandrappa and by referring to decisions not considered therein. The reformulation of the principles in Ganpat is as follows:\n\"(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.\n(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.\n(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.\n(iv) An order of acquittal is to be interfered with only when there are \"compelling and substantial reasons\" for doing so. If the order is \"clearly unreasonable\", it is a compelling reason for interference.\n(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Madan Lal v. State of J & K (1997) 7 SCC 677 1997 Indlaw SC 1460, Ghurey Lal v. State of U.P. (2008) 10 SCC 450 2008 Indlaw SC 1197, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105 1992 Indlaw SC 1272 and Jaswant Singh v. State of Haryana (2000) 4 SCC 484 2000 Indlaw SC 254)\"\n22. Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that the High Court is entitled to virtually step into the shoes of the Trial Court hearing submissions of learned counsel and then decide the case as a court of first instance. Perhaps this is not what is intended, notwithstanding the broad language used in Chandrappa and Ganpat. Otherwise, the decision of the Trial Court would be a meaningless exercise and this Court would become a first appellate court from a decision of the High Court in a case of acquittal by the Trial Court. Realistically speaking, although the principles stated are broad, it is the obligation of the High Court to consider and identify the error in the decision of the Trial Court and then decide whether the error is gross enough to warrant interference.\nThe High Court is not expected to merely substitute its opinion for that of the Trial Court only because the first two principles in Chandrappa and Ganpat permit it to do so and because it has the power to do so - it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the Trial Court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation.\nDiscussion on facts:\n23. Looked at from this perspective, it was submitted by learned counsel for the State that there cannot be two reasonable views of the events that took place. It was submitted that there was no doubt that Paritosh crossed the river Ganges with Shyamal and Prosanta and they went to a secluded and uninhabited place across the river. This was witnessed by Dipak, Panchu and Animesh. Paritosh then went missing and his corpse was found a couple of days later. It was submitted that on these facts there can be only one conclusion, namely that Shyamal and Prosanta caused the death of Paritosh.\n24. In this context, the evidence of Dipak, Panchu, Animesh and the Investigating Officer assumes significance. Disputing the testimony given by Dipak and Panchu in Court, the Investigating Officer stated that when they were examined u/s. 161 of the Criminal Procedure Code they neither told him that they had gone to the opposite side of the river nor that Shyamal and Prosanta had gone with Paritosh towards the jungle.\nThere was also no mention of the attendance of Animesh or the dress worn by Paritosh. In other words, they did not mention any of the events said to have taken place in their presence on the evening of 19th May, 1995. From this, it is quite clear that the subsequent statements made by them on oath appear to be add-ons and make believe. This casts serious doubt on their credibility.\n25. An independent witness Swapan Kabiraj (PW-8) who is supposed to have seen Dipak, Panchu, Paritosh, Shyamal and Prosanta board the boat to cross the river, turned hostile and denied having made any statement before the Investigating Officer. Snehalata Sarkar (PW-7), wife of the boat owner Asit Sarkar also turned hostile and stated that their boat was, as usual, tied to the ghat and she could not say whether it was taken by any person on that date.\n26. However, what is even more important is that Animesh stated in Court that on the morning of 20th May, 1995 he had told his father Amaresh and Bidyutprava Saha that he had seen the abovementioned five persons cross the river in a boat the previous evening. He also stated that he was taken by Amaresh to the police station and he had even mentioned this to the police. However, Amaresh does not depose anything about having taken Animesh to the police station. The Investigating Officer deposed that Animesh had not been cited as a witness and \"had it been known to me that Animesh is a material witness who saw the victim together with the accused, during investigation, he would have been cited as a witness in the charge sheet\". Therefore, the possibility of Animesh having been tutored cannot be completely ruled out.\n27. It is clear that there is considerable padding in the testimony of the three crucial witnesses namely, Dipak, Panchu and Animesh and there are unexplained additions made by them. In this state of the evidence on record, the Trial Court was entitled to come to a conclusion that the prosecution version of the events was doubtful and that Shyamal and Prosanta were entitled to the benefit of doubt and to be acquitted.\n28. We also find from the record that a number of independent witnesses have turned hostile and, as mentioned above, three important witnesses have added much more in their oral testimony before the Court than what was stated before the Investigating Officer during investigations. and came to the conclusion that they had crossed the river along with Paritosh, Shyamal and Prosanta.\nHowever, the High Court did not take into consideration the view of the Trial Court, based on the evidence on record, that it was doubtful if the five persons mentioned above boarded the boat belonging to Asit Sarkar to cross the river as alleged by the prosecution. The High Court also did not consider the apparently incorrect testimony of Animesh who had stated that he had gone to the police station and given his version but despite this, he was not cited as a witness. The version of Animesh was specifically denied by the Investigating Officer.\n29. When the basic fact of Paritosh having boarded a boat and crossing the river with Shyamal and Prosanta is in doubt, the substratum of the prosecution's case virtually falls flat and the truth of the subsequent events also becomes doubtful. Unfortunately, the High Court does not seem to have looked at the evidence from the point of view of the accused who had already secured an acquittal. This is an important perspective as noted in the fourth principle of Chandrappa. The High Court was also obliged to consider (which it did not) whether the view of the Trial Court is a reasonable and possible view (the fifth principle of Chandrappa) or not.\nMerely because the High Court disagreed (without giving reasons why it did so) with the reasonable and possible view of the Trial Court, on a completely independent analysis of the evidence on record, is not a sound basis to set aside the order of acquittal given by the Trial Court. This is not to say that every fact arrived at or every reason given by the Trial Court must be dealt with - all that it means is that the decision of the Trial Court cannot be ignored or treated as non-existent.\n30. What is also important in this case is that it is one of circumstantial evidence. Following the principles laid down in several decisions of this Court beginning with Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) 4 SCC 116 1984 Indlaw SC 432 it is clear that the chain of events must be so complete as to leave no room for any other hypothesis except that the accused were responsible for the death of the victim.\nThis principle has been followed and reiterated in a large number of decisions over the last 30 years and one of the more recent decisions in this regard is Majenderan Langeswaran v. State (NCT of Delhi) and Another. (2013) 7 SCC 192 2013 Indlaw SC 374 The High Court did not take this into consideration and merely proceeded on the basis of the last seen theory.\n31. The facts of this case demonstrate that the first link in the chain of circumstances is missing. It is only if this first link is established that the subsequent links may be formed on the basis of the last seen theory. But the High Court overlooked the missing link, as it were, and directly applied the last seen theory. In our opinion, this was a rather unsatisfactory way of dealing with the appeal.\n32. Under the circumstances, we are unable to agree with learned counsel for the State and are of the opinion that there was really no occasion for the High Court to have overturned the view of the Trial Court which was not only a reasonable view but a probable view of the events.\n33. Learned counsel for Shyamal and Prosanta raised some issues such as the failure of the prosecution to examine Gopal Saha and Asit Sarkar. He also submitted that there was no motive for Shyamal and Prosanta to murder Paritosh. In the view that we have taken, it is not necessary to deal with these submissions.\n34. Learned counsel for the State relied on the evidence of Dr. Bhattacharya to submit that Paritosh died between 65 and 70 hours before the post mortem examination was conducted. As observed by High Court, this placed Paritosh's death soon after 5.30 p.m. on 19th May, 1995.\nThe significance of this is only with respect to the time of death and has no reference to the persons who may have caused the death of Paritosh. The evidence of Dr. Bhattacharya, therefore, does not take the case of the State any further.\nConclusion:\n35. The view taken by the Trial Court was a reasonable and probable view on the facts of the case. Consequently, there was no occasion for the High Court to set aside the acquittal of Shyamal and Prosanta. Accordingly, their conviction and sentence handed down by the High Court is set aside. Their appeal against their conviction and sentence is allowed.\nAppeal allowed\n"}
+{"id": "P9K63LSFZH", "title": "", "text": "Ramprasad and Others v State of Maharashtra\nSupreme Court of India\n\n12  May  1999\nCriminal Appeal No. 592 of 1994 Etc\nThe Judgment was delivered by : K. T. Thomas, J.\n1.  These appeals relate to a case of mercenary killing. Though the principal target of the killers was one Ram Kishore Somani @ Ramu they could kill only his younger brother Ashok Somani, who, per chance was with his elder brother then, due to his jinxed destiny. Nevertheless they succeeded in brutally mangling the targeted person inflicting a lot of injuries on him, some of them near fatal. As he survived such injuries he appeared in the trial court to tell the tale.\n2.  If the story is true, the intrigue was hatched, ironically, at the precincts of a court of law and its finale was staged on a public road near the Employment Exchange Office at Amravati (Maharashtra). Ten persons, in all, were charge-sheeted by the police in connection with the said case, out of which one Anil Chaudhary (PW.2) was granted pardon as he turned an approver. Four of the remaining alone were convicted and all the rest were acquitted by the trial court.\n3. The State appealed against the acquittal and the convicted accused appealed against their conviction and sentence. During the pendency of the appeal A.2Ram Kishore Yadao the kingpin  died and the appeal as against him got abated.\n4.  A Division Bench of the High Court of Bombay (Nagpur Bench) confirmed the acquittal of A.9-Rajendra and also the conviction and sentence passed on the four accused. But the High Court reversed the acquittal of A.1-Gopal Maharaj and A.4-Ram Prasad Yadao and they too were convicted under Section 302 IPC read with Sections 109 and 150 IPC and also to a few other lesser offences. They were sentenced to imprisonment for life on the main offence, and to lesser terms of imprisonment for the lesser offences.\n5.  A synopsis of the case is this: Ram Kishore Somani @ Ramu Somani(PW.1) and his brother Ashok Somani (deceased) were doing cloth business at Amravati. A.1-Gopal Maharaj contested as a candidate for the Municipal election in 1986 from the same Ward in which PW.1-Ramu Somani also contested as a candidate.\n6. The contest burgeoned ill-feeling which, by course of time, snowballed into deep-rooted rancour and it escalated to its zenith when he decided to go forward for the liquidation of his rival Ramu Somani. He sought the assistance of A.2 Ram Kishore Yadao who was leader of a gangster-gang. As A.2-Ram Kishore Yadao was already in jail in connection with a criminal case, A.1-Gopal Maharaj went to the court of the Judicial Magistrate of First Class (Amravati) where A.2-Ram Kishore Yadao was expected to be produced from jail in connection with that criminal case. A.1-Gopal Maharaj impressed upon A.2-Ram Kishore Yadao that it was PW.1 who made all efforts to see that A.2 was not enlarged on bail. He then requested A.2 to liquidate PW.1-Ramu Somani. However, he cautioned PW.1 that it was not easy to finish him off since he was always guarded and was constantly moving around escorted by bodyguards. A.1-Gopal Maharaj suggested to liquidate the bodyguards also so that there would be no eye-witness to speak about the murder.\n7.  The above talk was again repeated on 10.12.1987 at the same place. The only addition then was the presence of A.4-Ram Prasad Yadao who is the brother of A.2-Ram Kishore Yadao. A.4-Ram Prasad Yadao told his henchmen-gangsters to do the needful and offered himself to be arrested in the meanwhile in connection with some petty case, so that no penumbra of suspecian would fall on A.2 and A.4. It was thought that, as the mercenaries are unacquainted to the targeted persons, the operation of killing can be carried out without much risk.\n8.  A.2 and A.4 wanted their henchmen to liquidate Ramu Somani. On 12.12.1986, A.4-Ram Prasad Yadao managed to get himself arrested on some petty case concocted at his instance. But A.4-Ram Prasad Yadao exhibited his anxiety as to why Ramu Somani was not killed even after A.4 got himself behind the bar. He threatened his henchmen with another murder, should the assignment for Ramu Somanis liquidation was not implemented without any further delay.\n9.  Six accused persons (A.5-Baba Swami @ Vinit, A.6Anil Motiram Dhote, A.7-Raju @ Mitun Galhot and Pramod Ingale) along with Anil Chaudhary (PW.2) went on a prowl for the target. Though Ramu Somani was spotted by them around 3 P.M. on 15.12.1987 they could not reach him as he got perched in his house in the meantime. But it was only a short-lived safety.\n10.  Around 4 P.M. on 15.12.1987, Ramu Somani went out of the house without having any foreboding of the slinking marauders, he was on the pillion seat of a scooter ridden by his younger brother Ashok Somani. As they reached near the office of Employment Exchange, all the assailants waylaid them and a massive onslaught was launched on them with deadly weapons. When the gangsters saw that their victim was very grievously mauled they fled from the place.\n11.  Both the injured were removed to the hospital as both sustained many serious injuries. Dying Declarations of both were recorded by a Judicial Magistrate (PW.16). On the same night Ashok Somani succumbed to the injuries, but Ramu Somani registered progress in the healing process and eventually he was discharged from the hospital.\n12.  All the accused were arrested, different accused on different dates, and some weapons were recovered from a well situated near the house of PW.2 Anil Chaudhary. He was arrayed as accused No.8. He gave a confessional statement to the Chief Judicial Magistrate and on 11.3.1988 pardon was tendered to him and he was made an approver.\n13.  The roles ascribed to A.5-Baba Swami, A.6-Anil Dhote, A.7-Raju Galhot and A.10-Pramod Ingale besides PW.2-Anil Chaudhary as assailants in the occurrence, were spoken to by PW.1-Ramu Somani and PW.2-Anil Chaudhary in full measure. The trial court and the Division Bench of the High Court have chosen to act on their evidence and found them guilty of the offences.\n14.  There is no dispute now that PW.1-Ramu Somani and deceased Ashok Somani sustained very serious injuries at the place and at the time mentioned by the prosecution. The only point of dispute, on that aspect, was regarding the identity of the assailants. PW.2-Anil Chaudhary has narrated the story, including the incident on 15.12.1986 with all vivid details. PW.1-Ramu Somani also narrated the incident with full particulars, though he could identify only A.5, A.6, A.7, and PW.2 among the assailants. It is no matter that PW.1 could not identify A.10 as his participation in the occurrence was effectively vouchsafed by the evidence of PW.5-Avinash. Testimony of PW.4-Balaji Bobde affords additional evidence regarding the participation of A.5-Baba Swami and A.7-Raju Galhot.\n15.  Ext. 52 is the Dying Declaration made by PW.1Ramu Somani, which was recorded by a Judicial Magistrate (PW.16). Both the trial court and the High Court counted Ext.52 as a piece of evidence. Shri R.S. Lambat, learned counsel contended that both courts have gone wrong in treating Ext.52 as evidence because the person who gave that statement is not dead and hence it could not fall under Section 32 of the Evidence Act. Counsel further contended that even otherwise Ext.52 could only have been used to contradict PW.1 as provided in Section 162 of the Code of Criminal Procedure (for short the Code) as it was a statement recorded during investigation.\n16.  We are in full agreement with the contention of the learned counsel that Ext.52 cannot be used as evidence under Section 32 of the Evidence Act though it was recorded as a dying declaration. At the time when PW.1 gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.\n17.  Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section.\n18. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.\n19.  In Maqsoodan and ors. v. State of U.P. (AIR 1983 SC 126) 1982 Indlaw SC 152 a three-Judge Bench of this Court has stated the legal position thus:\n20.  When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of Evidence Act. In the instant case, the makers of the statements Exts.Ka-22 and Ka-23, are not only alive but they deposed in the case. Their statements, therefore, are not admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in Court.\n21.  So we repel the contention of the learned counsel that Ext. 52 cannot be used for corroborating the testimony of PW.1. Nothing could be shown to discredit his testimony. He, being the injured, seems to be the most natural witness to speak to the occurrence. When PW.1 pointed out PW.2 as one of the assailants, we have no difficulty in believing that PW.2-Anil Chudhary had witnessed everything which occurred when the victims were showered with lethal blows, besides himself also participating along with other assailants.\n22.  We, therefore, find no reason to interfere with the concurrent finding that A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10 Pramod Motiram Ingale were active participants in the occurrence in which deceased and PW.1 Ramu Somani were violently attacked.\n23.  While dealing with the appeals concerning A.1Gopal Maharaj and A.4-Ram Prasad Yadao we are to point out that their conviction depends entirely on the testimony PW.2-Anil Chaudhary. The Division Bench of the High Court placed full reliance on his evidence. Though there is no legal hurdle against acting on the testimony of an accomplice it is well-nigh settled that it would be imprudent to base a conviction on such testimony unless it is corroborated in material particulars. Hence PW.2s evidence has to pass the test of reliability and must secure adequate corroboration before the same can be acted upon, in so far as A.1-Gopal Maharaj and A.4-Ram Prasad Yadao are concerned.\n24.  PW.2-Anil Chaudhary said that on 4.12.1987 he too was present at the court premises when A.1-Gopal Maharaj conversed with A.2-Ram Kishore Yadao regarding the necessity to exterminate Ramu Somani. PW.2-Anil Chaudhary also said in his evidence that on 10.12.1987, A.1-Gopal Maharaj repeated the same conversation to A.2-Ram Kishore Yadao. To corroborate the aforesaid version prosecution examined PW.11Yusufkhan and PW.17-Kishan Jamu Goyal. The former has stated that he was present at the court premises on 4.12.1987 and saw A.1-Gopal Maharaj, A.2-Ram Kishore Yadao and others were talking with each other. The other witness said that on 10.12.1987 he saw those persons conversing together. But neither of them could hear what they were talking about. Criminal liability can be fastened with A.1-Gopal Maharaj only if the words attributed to him by PW.2 have assurance from other sources. The mere fact that A.1-Gopal Maharaj was found talking with A.2 is hardly sufficient to elicit such an assurance.\n25.  Shri V.B. Joshi, learned counsel for the State candidly admitted before us that there is no other evidence or material to corroborate the testimony of PW.2 regarding the involvement of A.1-Gopal Maharaj in the crime. No other circumstance has been brought to our notice. Nor is there any material to show that A.1-Gopal Maharaj did anything for bailing out any of the assailants, nor that he expended any money for the defence of the said persons at any stage.\n26.  Thus we are unable to uphold the conviction of A.1-Gopal Maharaj as the testimony of PW.2-Anil Chaudhary against him remained uncorroborated.\nBut the position regarding A.4-Ram Pradad Yadao is different.\n27. The role attributed to him by PW.2-Anil Chaudhary is that on 10.12.1987 A.4-Ram Prasad Yadao told the assailants to go ahead with the operation for annihilation of Ramu Somani and that himself would, in the meantime, go behind bars so that no suspicion would arise against him also. PW.2-Anil Chaudhary said that it was A.4-Ram Prasad Yadao who supplied all the weapons to the assailants for carrying out the operation for annihilation of Ramu Somani. PW.2-Anil Chaudhary further said that true to his statement A.4Ram Prasad Yadao got himself arrested on the succeeding day and when the witness visited A.4 at the Executive Magistrate Court premises he was abused by A.4 for the delay in carrying out the operation. According to PW.2-Anil Chaudhary he complained to A.2Ram Kishore Yadao regarding the aforesaid conduct of A.4-Ram Prasad Yadao and then A.2 warned him that A.4Ram Prasad might even go to the extent of slaying the assailants after coming out of jail if they fail to carry out the operation.\n28.  Learned counsel for the appellant pointed out that PW.2 in cross-examination has said that he did not disclose to any body earlier that A.4 supplied the weapons of offence. So we are not inclined to accept that part of his testimony, whether it is true or not. That apart, how far the said testimony of PW.2-Anil Chaudhary regarding the other part of the involvement of A.4-Ram Prasad be acted on as true?\n29.  The confessional statement given by Pw.2 to the Magistrate before pardon was tendered to him, is projected as a material for corroboration. Though legally it can be used as a corroborative material we are not disposed to attach great weight to it since it is only the former statement of an accomplice.\n30.  Learned counsel for A.4 Ram Prasad pointed out that PW.2 himself admitted that when he was questioned by the police he did not speak anything about A.4. But that is not of much use now because PW.2 was questioned by the police as an accused, and then he would not have divulged the truth. It was later that he changed his mind and offered to confess the entire truth. In the confession he implicated himself and others. So the fact that he did not divulge the whole truth at the outset when he was questioned by the police is not of much consequence. That aspect only goes along with the inherent weakness of the testimony of any approver.\n31.  PW.17-Kishan Jamu Goyal was a detenue during December 1987. He said in his evidence that he was on the court verandah on 10-12-1987 along with A.2-Ram Kishore Yadao and then he saw A.2 talking with the assailants. As we have pointed out, while dealing with the case of A.1-Gopal Maharaj, corroboration provided by the evidence PW.17-Kishan Jamu Goyal is not sufficient to ensure confidence in judicial mind about the truth of PW.2s testimony. It may be one circumstance, but we require more circumstances to assure that PW.2 spoke the truth in the court.\n32.  There is one circumstance which is reasonably sturdy to corroborate the evidence of PW.2-Anil Chaudhary regarding his accusation against A.4-Ram Prasad Yadao. Ext.170 is a police report showing that a petty case was registered by the police against A.4Ram Prasad Yadao and he was taken into custody by the police on 12.12.1987. PW.29 Head Constable testified that a person by name Vilas Mulatkar went to the police station with a complaint that A.4-Ram Prasad Yadao created unruly scene under the influence of alcohol in a public place, and that a case was registered against him under Section 151 of the Code and he was interned in the lock-up on 12.12.1987.\n33.  The fact that A.4 was so arrested on 12.12.1987 is not disputed. The contention is that A.4 was released on bail even prior to the incident in the case and hence his arrest is of no use in this case. That might be so, and we are not at the question whether he should have continued in jail till the occurrence was over. We are scrutinizing the evidence of PW.2, and ascertain the extent it has been corroborated by other evidence. In that scrutiny we notice that the arrest of A.4 on 12.12.1987 is a circumstance which corroborates the testimony of PW.2.\n34.  Another item of evidence noticed as of corroborative value is the testimony of PW.3. He was a boy aged 17, who was then a student. He deposed that he too had connections with A.2-Ram Kishore Yadao. On 15.12.1987, at about 1.30 P.M. while he was standing at Duffarin bus stop along with A.5 and A.10, some others including A.4 and A.6 and then A.7 joined them and PW.2 also came later. A.4 was heard saying to them you carry out the work assigned and do not bother about consequences, and A.4 assured them that he would bear all the expenses. Next day of the occurrence, A.6-Anil Dhote sent PW.3-Sudir Pohokar to the house of A.4-Ram Prasad Yadao to collect some money. PW.3 went to A.4 and collected some money from him and then A.4 told him that the police was suspecting him and hence he would be able to supply further fund only later. This is the substance of what PW.3 said regarding the role of A.4-Ram Prasad.\n35.  The aforesaid evidence of PW.3 is a further item to lend assurance regarding the involvement of A.4-Ram Prasad in the murder case. Of course, this was not counted by the High Court but that does not matter much. We are now at the question as to what extent the evidence of PW.2-Anil Chaudhary can be acted on. We feel assured from the circumstances enumerated above that the evidence of PW.2 in so far as he implicated A.4-Ram Prasad with this murder can be accepted as true.\n36.  When we record our finding against A.4-Ram Prasad we are also obliged to record our gratitude to Shri R.S. Lambat (learned counsel who argued for A.4) for the able assistance he provided to the accused with the thorough and deep study he made with the facts and evidence in this case. In the result the appeals filed by A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10-Pramod Motiram Ingale are dismissed. But we allow the appeal filed by A.1-Gopal Maharaj, and set aside the conviction and sentence passed on him by the High Court. His bail bond will stand discharged. However, we confirm the conviction and sentence passed by the High Court on A-4 Ramprasad Yadao and dismiss his appeal. We direct the Sessions Judge, Amaravati to take prompt and necessary steps to put him in jail for undergoing the remaining portion of the sentence.\nAppeal allowed\n"}
+{"id": "NJOVzNEMr7", "title": "", "text": "Zafar v State of U.P.\nSupreme Court of India\n\n15 January 2003\nAppeal (Cr.)  498 of 2000\nThe Judgment was delivered by : P. Venkatarama Reddi, J.\n1. This appeal by Special leave is preferred by the sole accused in the Sessions Trial No. 583 of 1980 on the file of the Additional District & Sessions Judge, Gorakhpur. The accused was convicted u/s. 302 I.P.C. on the charge of murdering his relation by name Hidayat Hussain at about 8 A.M. on 28.6.1980 on a public street. The accused was sentenced to life imprisonment. On appeal the High Court confirmed the conviction and sentence.\n2. The prosecution case is that on the crucial day at about 8 A.M. the deceased was going to a meat shop with his son Aizaz @ Guddu (P.W.2). As they came close to the meat shop, the accused fired a shot from his country-made pistol in front of the house of one Sidhu. The victim collapsed before the meat shop of Achhan (P.W.3) and succumbed to the injuries then and there. Though some people tried to overpower the accused, he reloaded his pistol and threatened them not to risk their lives. Thereafter, he fled away from the scene. P.W.I, the father of the deceased, on coming to know of the incident came to the spot immediately. He saw the son of the deceased (P.W.2) weeping by the side of the dead body. His clothes were blood-stained. After some time he got a complaint drafted by one Yusuf and handed over the same in the police station at 9.15 A.M. The Head Constable registered the F.I.R. P.W. 6, the sub-Inspector of police immediately went to the scene of offence, took custody of the dead body after having it photographed and prepared a Panchnama. Thereafter, P.W.7, the Senior Sub-Inspector, took over the investigation and seized the blood- stained earth, empty cartridge and blood stained Kurta of P.W.2. On search at the house of accused he found nothing incriminating.\n3. Post-mortem examination was conducted by P.W.5 who was the Medical Officer attached to District Hospital, Gorakhpur, on the evening of the same day. The following ante-mortem injuries were found on the body of the deceased:\n\"1. Gunshot wound 1-12\" x 1.2\" cavity deep on the right back 9\" below the root of the back and adjacent to the mid line. Margins black, contused and inverted wound of entry.\n2. Gun Shot wound 1/2\" x 4/10\" x cavity deep on the chest 2\" inner to right nipple, margins black everted contused wound of exit. 6 pellets recovered underneath this injury.\"\n4. The Doctor further noted that the injuries were caused by fire arm. On internal examination, he found 8 ounces of clotted blood in the thorax cavity and laceration of right lung at several places. He found one pound of blood in the stomach. According to the doctor, the deceased died due to shock and haemorrhage caused by the fire arm injuries and the death would have occurred instantaneously. P.W. 7 conducted the inquest and recorded the statements of witnesses. He filed the charge-sheet.\n5. The motive for the crime as disclosed by P.W. 1 is that the accused was under the impression that the deceased was having illicit relations with the wife of the accused as the deceased was often protesting against the cruel treatment being meted out to her and trying to help her. P.W.I also stated that there was some altercation a week earlier whereupon the accused threatened the deceased with dire consequences. The accused and the deceased are related.\n6. The two eye-witnesses examined by prosecution are P.Ws. 2 and 3. The eye- witness P.W.2 Aizaz Hussain was aged 7 years at the time of the incident and 8 years at the time of giving evidence. He was studying in class I in the local school. He gave an account of the incident and the circumstances in which his father was killed. He clearly implicated the accused as assailant. P.W. 3, the meat shop owner turned hostile. However, he supported the prosecution case partly.\n7. Therefore, much turns on the evidence of the child witness P.W.2. The trial court as well as the High Court were of the view that the testimony of P.W.2 was clear and trustworthy and reliance could be safely placed on his evidence. The learned trial Judge noted that he had put several questions to satisfy himself if he could give rational answers to the questions. The learned Judge then noted that the witness was intelligent.\nHowever, a rider was added to the effect that he could not fully understand the sanctity of oath. However, that does not by itself vitiate his evidence.\n8. The learned Judges of the High Court having noted the proposition that cautious approach has to be adopted in appreciating the evidence of a child witness, proceeded to discuss the evidence. The High Court has pointed out that the presence of this witness-P.W.2 in the company of his father at the time of the incident cannot be doubted in view of the evidence of P.W.3 (who was declared as hostile witness) and P.W.I, the informant. The High Court then discussed the two alleged contradictions, i.e., about the dress he was wearing and the deceased not having any money in his pocket. The High Court rightly explained away these contradictions by giving cogent reasons. The High Court then discussed at length the medical evidence and came to the conclusion that there was really no inconsistency between the ocular testimony and the medical evidence. In any case, the High Court relying on the decision of this Court in Leela Ram (D) through Duli Chand v. State of Haryana J.T. (1999) 8 SC 274 1999 Indlaw SC 564, observed that the prosecution case cannot be rejected outright, even if there was some doubt on the question whether one shot was fired or two shots were fired. The fact that the FIR was lodged promptly naming the accused as the assailant on the basis of first hand information which P.W.I got was also considered to be an important factor in support of the prosecution.\n9. However, we find on a perusal of the evidence on record that the trial court as well as the High Court failed to focus their attention to certain crucial aspects which have undoubted bearing on the reliability of the evidence of the child witness-P.W.2. The first and foremost aspect which deserves attention is about the version of P.W.2 as regards the actual scene of offence. According to the prosecution case, the deceased was shot at in front of the house of one Sidhu and he fell down in front of the meat shop of P.W.3 after walking for a little distance. In the site plan (K-9) the place of occurrence is marked as 'A' as spoken to by P.W.7, the 1.0. That spot is just in front of the house of Sidhu. The distance between the place of shooting, i.e. Sidhu's house and the meat shop of P.W. 3 is about 5 to 6 'paces' according to P.W.7. P.W.7 stated more than once that the spot of shooting was pointed out to him by P.W.2. P.W.7 further stated that P.W.2 informed him that his father after having been hit by the bullet walked some distance and fell down near the meat shop. The fact that the site plan was drawn up after P.W.2 pointed out the place of occurrence was stated by the 1.0. (P.W.7), even in chief examination. The version of P.W.2, the child witness is materially different. According to him, the incident took place at the meat shop itself. This is what P.W.2 categorically stated:\n\"The meat shop is at Baxipur. It is the shop of Achhan (P.W.3). I and my father reached the meat shop. Before my father could purchase meat, the accused Budhu came there and fired a shot. After receiving the bullet injury, my father fell before the shop of Achhan.\" This statement in chief examination was further reinforced and clarified in the following words:-\n\"At the meat shop my father asked Achhan to weigh meat. At that time, beside my father other customers were also present in the shop. Achhan was weighing meat for the customers who were standing ahead of my father. There were many customers present at the shop of Achhan for buying meat. While my father was standing there were many persons standing before and after him for buying meat. I was standing ahead of my father. My father was fired at the place where he was standing. It is true that he fell flat.\"\n10. Thus the witness was categorcial about the spot of occurrence being at the meat shop itself. He further stated in the questions put to him by the Court that the bullet hit his father on his back. To a question as to what his father was doing when he was shot at, the witness stated that his father was buying meat. As already noted, according to P.W.7, the earliest version of P.W.2 was that the accused shot him at a spot close to the meat shop but before he reached the shop. P.W. 7 drew the site plan as pointed out by P.W.2. If what is stated by P.W.7 is correct, we have two different versions from P.W.2 as regards the scene of offence. In any case, the evidence of P.W.2 does not fit into the prosecution case about the place of occurrence. In the face of this discrepancy on a very important aspect, a reasonable doubt arises as to the reliability of the evidence of this child witness.\n11. Another circumstance which deserves notice is that as per the version of P.W.2, the police came to him four or five days after the occurrence and enquired him about the details of murder and had also taken him to the place of murder. P.W.7, the I.O., has a different story to tell. According to him, after sending the dead body for post-mortem, he recorded the statements of witnesses, Achhan (P.W.3) and Aizaz Hussain (P.W.2) and got the blood stained kurta removed from the body of P.W.2 and collected samples of blood stained soil etc. and thereafter inspected the place of occurrence on being pointed out by P.W.2 and prepared the site plan accordingly. That means P.W.7 claims to have examined P.W.2 on the day of incident itself. But this version is belied by the categorcial statement of P.W.2 that the police came to him only after four or five days and made enquiries about the murder. P.W.7 admitted that he did not record the dates when he took the statement of each witnesses in the case diary-which is very strange. Amongst the statements found in the first running pages of the case diary, the statement of P.W.2 does not figure at all, as seen from the cross-examination of P.W.7: All this supports P.W.2's version that he was contacted and examined by police only after four or five days. The question then arises as to why there was such an inordinate delay in examining him. No explanation was forthcoming from the investigating officer in this regard.\nHowever, the learned counsel for the respondent- State has endeavoured to give a plausible explanation for this. According to him, the I.O. would not have felt it necessary to adduce the evidence of the child witness on account of the fact that there was another eye witness, namely, P.W.3, who was examined on the same day and who unfortunately became hostile later on. This explanation remains in the area of surmise. The best person to throw light on this aspect is P.W.7 but he did not say a word about it. Moreover, P.W.7 came forward apparently with an untrue version that he examined P.W.Z on the day of the incident itself and drew up the site plan as per the information given by him. The fact that P.W. 2 was examined and taken to the spot only four or five days after the incident while making it appear on record that he was examined on the same day of the incident casts another doubt on the prosecution case. If P.W.2 was in the know of things, why should the police postpone the event of examining him for so many days? Were they trying to project P.W.2 as eye-witness, having failed in their attempts to get direct evidence of others? These are the imponderables in this case. On account of this, a doubt has to be necessarily entertained as to whether P.W.2 claimed to be an eye-witness on the day of the incident itself and he in fact witnessed the occurrence.\n12. One more point of doubt which makes the version of P.W.2 vulnerable to criticism is this: P.W.2 stated that the police personnel were already there at the spot by the time his grand-father (PW1) reached and that the policeman brought a cot and placed the dead body on it. However, this version is inconsistent with that of P.W.I as well as the 1.0. According to them, the police reached the scene of offence only after the complaint was lodged by P. W. 1 P.W.6 found the dead body lying flat on the ground. All this gives rise to a doubt as to when exactly P.W.2 was at the scene of offence.\n13. Lastly, it is urged by the learned counsel for the appellant that although in the FIR, P.W.2's presence was mentioned by the informant, he did not mention in the FIR that P.W.2 told him that the accused killed his father. In the cross-examination, P.W.I stated that he forgot to mention this fact. One way of looking at it is that having regard to the tenor of the FIR in which he made a general statement that many persons tried to catch the accused, the omission to mention what he had been told by P.W. 2 need not be viewed seriously. Though, by itself, it may not be a significant omission, but, coupled with other doubtful features emerging from the evidence of P.W.2 and the I.O., this aspect cannot be brushed aside.\n14. In view of the doubtful features and other infirmities in the prosecution evidence as discussed above, we are of the view that it is not safe to rely on the evidence of P.W.2 whose evidence needs to be scrutinized with due care and caution. It is, however, unnecessary to probe into the other question whether the ocular evidence is inconsistent with the medical evidence. Though it is a case of concurrent finding by both the Courts resting on the appreciation of evidence, we are of the view that the trial court and the High Court overlooked certain important aspects in the practical application of the rule of prudence and caution which the High Court itself proceeded to apply in appreciating the evidence of child witness. The High Court failed to take note of certain telling factors emerging from the evidence on record.\nThere was no critical appraisal of the evidence of P.W.2 except focusing attention on two alleged contradictions of no significance and repelling the arguments based on them. Even if the finding that medical evidence does not go counter to the prosecution case is allowed to remain, there are other fatal infirmities in the evidence relied upon by the prosecution which were not adverted to by the High Court. In these circumstances, we are of the view that it is a fit case for interference under Art. 136. Accordingly, we hold that the accused is entitled to benefit of doubt and his conviction ought to be set aside. We. therefore, allow the appeal and direct the authorities concerned to release the accused from the prison forthwith.\nAppeal allowed\n"}
+{"id": "BnD3XkfFNu", "title": "", "text": "Teri Oat Estates (Private) Limited v U.T., Chandigarh and others\nSupreme Court of India\n\n19 December 2003\nAppeal (Civil) 49 of 1999\nThe Judgment was delivered by : S. B. Sinha, J.\n1.  These appeals involving common questions of law and fact were taken upto for hearing together and are being disposed of by this common judgment. The short question which arises for consideration in these appeals centres round the power of resumption of land/ building of the first respondent in favour of the appellants under the Capital of Punjab (Development and regulation) Act, 1952 read with the Chandigarh Lease Hold of Sites and Buildings Rules, 1973 and the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.\nBACKGROUND FACT :\n2.  The factual matrix of the matter is being noticed from Civil Appeal No. 49 of 1999. The site bearing No. SCO 126-127, Sector 34-A, Chandigarh was purchased on lease-hold basis by the appellant in open auction held on 13.3.1988. The purchase amount was to be paid in lump sum and/or in four yearly instalments. In the event of the purchaser opting for payment in instalments, 7% interest was payable. It is not in dispute that 25% of the allotment price was required to be deposited within 30 days of auction and upon compliance of the said term, the Estate Officer, Chandigarh, confirmed the lease of the said site in favour of the purchasers vide allotment letter dated 26.4.1988. 7% interest, as, referred to hereinbefore, was leviable on the balance 75% premium as contained in the letter of Allotment in three equal instalments together with ground rent. Clause 8-A of the said letter of allotment, however, stipulated levy of interest @ 12% per annum, penalty and power of resumption in the event of delayed payment of instalments upon grant of an opportunity of being heard in the following terms :\n\"8-A. After considering the cause, if any,'shown by the lessee in pursuance of the aforesaid notice, the Estate Officer may either allow payment of instalment/rent with penalty which may extend to 100% of the amount due and interest @ 12% P.A., for the delayed period, order cancellation of lease and forfeit the whole/ part of the amount already paid.\"\n3.  The appellant herein upon entering into possession of the purchased site, constructed a six storied building including the basement floor. The appellant contended that despite the construction of the said building it could not immediately be let out to the tenants as the area was under- developed and as parking and approach road had not been provided and furthermore several 'jhuggis' existed near the site. The second instalment which was due in 1989 had not been paid by the appellant. The appellant, however, is stated to have deposited a sum of Rs. 6,00,000 out of the total sum of Rs. 8,91,960 towards the amount due as also ground rent by paying the amounts of Rs. 2,50,000 on 5.4.1990, Rs. 1,50,000 on 2.5.1990, Rs. 1,50,000 on 25.6.1990 and Rs. 50,000 on 13.1.1992. Before depositing the aforementioned amounts, however, the appellant received a notice from the Estate Officer to the effect that he did not deposit the first instalment. After a lapse of about three years i.e. on or about 24.6.1992, the Estate Officer by his letter of the said date informed the appellant that a sum of Rs. 5,31,156 was due.\n4. According to the appellant, however, while issuing the said notice, the Estate Office failed to take into consideration that in the meanwhile a sum of Rs. 6,00,000 was deposited. A proceeding for cancellation of the lease by way of resumption of the land and building thereafter, was initiated. It is not clear as to whether the appellant in the said proceeding took part or filed any reply in response to show cause notice. The Estate Officer in his order dated 13.8.1992 although noticed that the appellant had been granted an opportunity of being heard in person but failed to notice as to whether on those days any of them had appeared and/or made his submission or not. He, however, recorded :\n\"Inspite of various opportunities the lessee(s) has failed to clear the outstanding dues. It appears that the lessee(s) is/are not in a position to clear that Govt. dues. I hold the default wilful.\nTHEREFORE, in exercise of the powers vested under Rule 12(3) or the Chandigarh Lease Hold of Sites and Building Rules, 1973, lease of the said site is hereby cancelled as a last resort and further 10% of the premium of the site i.e. Rs. 2,87,000 (Rupees Two Lacs Eighty Seven Thousand only) plus ground rent and interest calculated to the date of cancellation is forfeited.\nNone present inspite of valid service of notice.\nIssue under my hand and seal this 24th day of June, 1992.\"\n5.  The appellant herein preferred an appeal thereagainst before the Chief Administrator, Union Territory of Chandigarh and by an order dated 21.2.1995, the Chief Administrator, Chandigarh held :\n\"4. The representative of the Estate officer argued that an amount of Rs. 52,25,880 is due from the appellant which includes penalty interest and forfeiture etc. The Counsel for the appellant agrees to make the part payment on 7.3.95 in the Lok Adalat to be held in U.T. State Guest House and the remaining he shall be paying by 31st March, 1995. To this payment the representative of the Estate Officer has no objection.\n5. In view of this commitment, of the counsel for appellant, I set aside the impugned order, restore the site to the appellant subject to the condition that part payment is made on 7.3.95 in the Lok Adalat and the remaining alongwith forfeiture of 2% shall be paid by 31st March, 1995 failing which the order of the Estate Officer shall become operative. The penalty on the last instalment is however waived of.\nAnnounced. Parties be communicated. \"\n6.  According to the appellant, the said order was communicated after 7.3.1995 as a result whereof no payment, as directed, could be made. The said appellate order, therefore, came to be questioned by the appellant by filing a revision application before the Advisor to the Administrator, U.T. Chandigarh, who by his order dated 17.5.1995 directed as under :\n\"5. In this case the allotment of the site was made on 26.4.1988 and although the period of more than 7 years has elapsed yet a part from making the initial payment of 25% of the premium amount, the petitioner did not take care to make the payment of premium amount and ground rent etc. with the result that the outstanding amount due from the petitioner has accumulated to the extent of more than Rs. 50,00 lacs. Anyhow taking into consideration, the fact that the petitioner has already constructed the building over this site and he has now agreed to clear all outstanding amounts. I take lenient view in the matter and restore the site to the petitioner subject to the condition that be shall pay Rs. 17.00 lacs by 31st May, 1995 and second instalment on or before 18.7.1995 and failing which the order of the Estate Officer shall become operative. However, as ordered by the Chief Admin-istrator, he is not liable to pay penalty on 1st instalment. They will however pay only 2% forfeiture. It is urged by the learned counsel for the petitioner that the Estate Officer does not cooperate with the party concerned in preparing the accounts statement and, therefore, direction to this effect may be given to the quarter concerned. In order to obviate the changes that the petitioner may not come with the plea that he could not pay the due amount in time because of non-supply of account statement, it is ordered that Estate Officer shall prepare the account statement of the petitioner indicating the balance amount to be paid by him as early as possible and deliver the same to the petitioner by 25th May, 1995.\nAnnounced. Parties be communicated.\"\n7.  The appellant contended that in the Statement of Accounts forwarded to the appellant by the Estate Officer pursuant to or in furtherance of the said direction, in stead and place of 12% interest, 15% interest for certain period and 24% interest for the rest had been levied. Levy of such penal interest, it appears, was the subject matter of a writ petition before the Punjab and Haryana High Court marked as CWP No. 17188 of 1995.\n8.  In the meanwhile, a proceeding under the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was initiated. By an order dated 29.3.1996, the Estate Officer directed the appellant and all other persons in occupation to vacate the said premises. An appeal preferred thereagainst was dismissed by the District Judge by an order dated 17.4.1996.\n9.  An application for amendment to the writ petition was filed question-ing the order of eviction passed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. During the pendency of the said writ petition, the appellant deposited a sum of Rs. 25,00,000 in terms whereof allegedly the entire principal amount due towards instalments and ground rent was cleared. A further sum of Rs. 5,00,000 was deposited on 31.10.1996 in terms of an order of the High Court, whereafter the following statement of accounts was prepared by the Estate Officer :\n10.  The appellant herein deposited a sum of Rs. 13,47,300 on 27.3.1997 in terms whereof according to the appellant all outstanding amount with interest calculated @ 15% per annum would have been cleared.  However, it appears that the pay order dated 31.10.1996 for a sum of Rs. 5,00,000 which the appellant tendered to the Estate Officer was returned. On 2.1.1998, he resubmitted the same to the Estate Officer within its validity period.\n11. By reason of the impugned judgment dated 19.11.1996, the writ petition was dismissed with costs. Liberty, however, was given to the appellant to give option to purchase the property in terms of Section 21A of the Rules. A review application was filed by the appellant but the High Court dismissed the same.\n12.  The appellant herein filed Civil Appeal No. 49 of 1999 against the main order and Civil Appeal against the order of the High Court refusing to review its earlier order. This Court by an order dated 18.2.1998 while issuing notice on the Special Leave Petition directed :\n\"There shall be an ad-interim stay of resumption of the property. The petitioners, in the meanwhile, are directed to approach the Estate Officer and have their account prepared of all the dues as due uptil 31st March, 1998 and make payment thereof before that date. The Estate Officer and the Chief Administrator would be bound to render assistance in the preparation of accounts and accept payment but subject to the result of these petitions.\"\n13.  Pursuant to or in furtherance of the said direction, the appellant by pay orders dated 27.3.1998, 17.2.1998 and 15.7.1998 tendered a total sum of Rs. 26,57,500 stating :\n\"With amount remitted above, it is hoped that all the dues stand clear.\nHowever, as per orders of the Honourable Supreme Court of India the total due amount after deducting Rs. 26,57,500 may kindly be intimated so that compliance may be made.\"\n14.  The Estate Officer in response to the said letter by his order dated 18.3.1998 intimated to the appellant the account showing dues of a further sum of Rs. 3,55,027 including ground rent. It appears from the accounts that the appellant had made over payment by Rs. 3,723. Upon charging of ground rent for the period 13.3.1998 to 10.4.1998 for a sum of Rs. 71,750 and 10% F.F. amounting to Rs. 2,87,000, a further sum of Rs. 3,55,027 was demanded. The appellant deposited the said amount and forwarded the pay order therefor along with his letter dated 19.3.1998.\nSUBMISSIONS :\n15.  Mr. J.K. Sibal, learned Senior Counsel appearing on behalf of the appellant, would submit that having regard to the fact that all payments had been made, pursuant to the order of this Court, the impugned judgment of the High Court should be set aside.\n16.  Ms. Kamini Jaiswal, learned counsel appearing on behalf of the respondent would, on the other hand, contend that the respondents herein having accepted the payments from the appellant under the orders of the Court which being subject to the result of these appeals, the matter may be heard on merits. The learned counsel would contend that from the records it would appear that the appellant except for making the initial payment of 25% failed and/or neglected to make any further payment despite several opportunities granted to it. Ms. Jaiswal would urge that the appellant also failed to comply with the order passed by the appellate and the revisional authorities in terms whereof also while setting aside the order of resumption, opportunities had been granted to it to pay the amount(s) in question, directing, however, that in the event of its failure to do so, the order of resumption will revive. The learned counsel would submit that this Court in Babu Singh Bains & Ors. v. Union of India & Ors., [1996] 6 SCC 565 1996 Indlaw SC 2539 has upheld the validity of the provisions of resumption of lands/ buildings under the 1952 Act and in view of the fact that the authorities of the respondent acted strictly in terms thereof, this Court should not show any sympathy. The learned counsel would argue that keeping in view the fact that an equitable order has been passed by the High Court to the effect that the appellant can repurchase the land in terms of Rule 21 of the Rules, the same may not be interfered with.\n17.  Mr. Sibal in reply, however, would submit that the issue must be considered having regard to the fact situation obtaining in each case. The learned counsel pointed out that a Full Bench of the Punjab and Haryana High Court in Ram Puri v. Chief Commissioner, Chandigarh, AIR (1982) Punjab & Haryana 301 1982 Indlaw PNH 189 upheld the validity of the provisions relating to resumption of the land only on the ground that the same is to be taken recourse to as a last resort. The learned counsel would urge that in Babu Singh Bains 1996 Indlaw SC 2539 (supra), this Curt having affirmed the judgment of the Punjab & Haryana High Court in Ram Puri 1982 Indlaw PNH 189 (supra), must be held to have accepted the said principle.\n18. Drawing our attention to several judgments of this Court including those in which one of us (V.N. Khare, CJI was a Member), Mr. Sibal made submissions to the effect that a humane approach is required to be taken in such matters. The learned counsel in this behalf relied upon Jasbir Kaur v. U.T. Chandigarh, [1999] 9 SCC 22 1999 Indlaw SC 475; Roochira Ceramics v. HUDA & Ors., [2002] 9 SCC 599 2000 Indlaw SC 3524; Kashmir Chand v. State of Haryana, [1996] 9 SCC 470 1996 Indlaw SC 2890 Surinder Kaur v. Government of Punjab & Ors., [1998] 9 SCC 592 1998 Indlaw SC 1537; S.MS. Sandhu Builders v. Chandigarh Administration, [2003] 3 SCC 125 2003 Indlaw SC 40 and an unreported order of this Court dated 23.1.1998 passed in Batra Finance v. Chandigarh Adminstration, (Civil Appeal No. 459 of 1998 arising out of S.L.P. (C) No. 17041 of 1997).\n19.  Ms. Kamini Jaiswal has also referred to a few unreported orders of this Court wherein the parties had been directed to take recourse to the provisions for re-allotment of the lands.\nVIRES OF THE 1952 ACT :\nthe Constitutionality of Section 8-A of the 1952 Act as inserted by the Central Act No. 17 of 73 in terms whereof the Estate Officer became empowered to resume building or site and to forfeit money paid by transferee came to be questioned before the Punjab and Haryana High Court in Ram Puri 1982 Indlaw PNH 189, (supra), inter alia, on the ground that same is violative of Article 14 of the Constitution of India. Sandhwalia, CJ, speaking for the majority while holding that the power of resumption is valid observed that the same being an ultimate civil sanction should be used as a weapon of last resort as well as with great caution and circumspection, Punchhi, J. (as the learned Chief Justice then was), however, in his minority opinion made a distinction between resumption and forfeiture and observed that Section 8-A could not be applied in view of the orders/letters of allotment referred to therein and in any event such resumption cannot be in relation to a building which was built on the land. The provision was held ultra vires also on the ground that there is no relief available against forfeiture in terms of Section 80A, holding :\n\". . . But if it is held that Section 8-A kept applying even after every paise was paid, on the breach of other conditions of sale, even then the Estate Officer causing covenantal resumption cannot, in observance of the practice afore-referred to effect sale of the property merely to recover the adjudged penalty. Under the ordinary law, as observed by the Supreme Court in Jagdish Chand Radhey Shayam's case AIR (1972) SC 2587 1972 Indlaw SC 493, (supra), there is relief available against forfeiture, but there is none under Section 80-A (old Section 9). The vice of discrimination under Article 14 of the Constitution would immediately set in. The principle of Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, AIR (1974) SC 2009 1974 Indlaw SC 270 cannot save the vice for these are not merely procedural matters where two paths are open to reach the same destination. The end results of both courses are different. Under ordinary law, the transferee can pay the forfeited money and avoid other consequences. But the stance of the Government under Section 8-A is that : it must sell the property and recover the forfeited money from the proceeds, refusing to have it directly from or on behalf of the transferee.\nThus, to preserve its constitutionality, it must be held that the Estate Officer has to keep the property intact and release it on the payment of the adjudged penalty in the case of covenantal resumption. That is what was held in Amrit Sagar Kashyap's case (1980-82 Pun LR 441) (supra) which has to be approved to this aspect of the case. For the aforesaid reasoning, the Estate Officer has no choice in the matter. On the other limb, the argument on behalf of the Chandigarh Administration that the title to the site is divested in its favour sans the building constructed thereon appears to me wholly chimerical and unworkable, besides being iniquitous. Three Latin maxims will convey the point:\n(i) \"Aedification solo, solo credit\" (That which is built on land becomes part of the land)\n(ii) \"Quickquid plantatur solo, solo cedit whatever is affixed to the soil belongs to the soil).\n(iii) \"Omne quod solo inaedificator solo credit\"\n(Everything which is built upon the soil passes with soil).\nThese maxims have the advantage of embodying the wis-dom of many under each of the one who coined them. And it is said, these maxims are 'prying emanations of the eternal wisdom'. It is undoubtedly true that their usefulness increases, rather than diminishes, as the law grows complex and involved, for they bring back the mind to the just principles. Now to say that the site vests in the Government and not the structure thereon, which becomes part and parcel of the site, is begging the question. Such a construction put by the Chandigarh Administration to the effect of resumption causes destruction of an estate; the two ownership attempting to pull apart, but vainly.  Thus interpreting Section 8-A, I would refrain from an odious construction which would lead to the destruction or dissipation of an estate, and as was done in Amrit Sagar Kashyap's case (1980-82 Pun LR 441) (supra) settled the term 'resumption' to a right of pre-entry on the property resumed.\"\n20.  This Court in Babu Singh Bains 1996 Indlaw SC 2539 (supra) held that as Section 8-A provides for a fair procedure, the same is not arbitrary and, thus, not violative of Article 14 of the Constitution of India, holding :\n\". . . The majority judgment has rightly focused the question in the correct perspective and had held that Section 8-A is valid in law and, therefore, not violative of Article 14. In Northern India Caterers (P) Ltd. v. State of Punjab, AIR (1967) SC 1581 1967 Indlaw SC 448, this Court had held that when there are two modes of procedure, one being more drastic and harsher than the other without any guidelines, invocation of the former was violative of Article 14 which was reversed by a larger Bench in Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, [1974] SCC 402 1974 Indlaw SC 270, knocking the bottom of the plea of constitutional validity of Section 8-A on the anvil of Article 14. Though softer course under Section 15 was available, Section 8-A does not become invalid on that score. Section 9 has been deleted and procedural safeguards have been provided in Section 8-A. Therefore, Section 8-A having provided fair procedure, does not become arbitrary and violative of Article 14.\"\nVALIDITY OF THE PROCEEDINGS :\n21.  One of the questions which, therefore, must always be posed by the Estate Officer, while initiating a proceeding under Section 8A of the Act is as to whether the drastic power of resumption and forfeiture has been taken recourse to as a last resort. The order of the Estate Officer dated 13.8.1992, does not say so. No reason has also been assigned in the said order.\n22.  It may be that the appellant even did not comply with the appellate order but it had a legitimate grievance therefor insofar as the said order was made available to it after 7.3.1995 whereas the part payment in terms thereof was to be made on the said date. The revisional order dated 17.5.1995 provided that payment be made in terms of the accounts submitted by the Estate Officer but the question as to whether the Estate Office could levy interest over and above 12% p.a. i.e. 15% from 1992 and 24% from 1993 was the subject-matter of a writ petition which was pending before the High Court. The appellant paid the entire amount which, according to the it, was due to the respondent. It further kept in readiness a pay order of Rs. 13,00,000, a copy whereof had also been filed with the review application. It is, therefore, not a case where the court will have to take one stand or the other in the light of the statutory provisions. The question as to whether the extreme power of resumption and forfeiture has rightly been applied or not will depend upon the factual matrix obtaining in each case. Each case may, therefore, have to be viewed separately and no hard and fast rule can be laid down therefor. In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not.\n23.  In M/s. Darkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, AIR (1989) SC 1642 1989 Indlaw SC 601, while holding that the provisions of Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 do not apply to the local bodies or public authorities which are States within the meaning of Article 12 of the Constitution of India, this Court observed :\n\"16. Our attention was also drawn by Mr. Chinai, learned counsel for the appellant, to the observations on 'Administrative Law' by Wade, 5th Edn. at pager 355. It was stated therein as follows :\n'Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended.\n17. It, therefore, followed that the public authorities which enjoy this benefit without being hidebound by the requirements of the Rent Act must act for public benefit.\nHence, to that extent, this is liable to be gone into and can be the subject-matter of adjudication.\"\n24.  The contention advanced on behalf of the respondents therein that when an order is passed terminating the tenancy, the lack of public interest or existence of collateral purpose or mala fide, would be a matter which the tenant must prove was rejected, stating:\n\"21. We are unable to accept the submissions. Being a public body even in respect of its dealing with its tenant, it must act in public interest, and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction.\"\n25.  Unfortunate although it may seem to be that the parties hereto had not highlighted these issues before the High Court and, thus, the High Court could not deal with the matters in their proper perspective.\n26. The High Court, however, not only differed with its earlier opinion in M/s. Sandhu Builders (P) Ltd. v. Union Teritory, Chandigarh , (CWP No. 3030 of 1994) decided on 19.1.1996 but went on to observe :\n\"...We, therefore, do not find any justification to nullify the impugned orders on the basis of the orders passed in P.K. Ahuja 's case or M/s. Sandhu Builders' case. The observation made by Sandhawalia, J. in Ram Puri v. State of Punjab, AIR (1982) Punjab & Haryana 214 1982 Indlaw PNH 189 (F.B.) suggesting that the action for resumption of allotted site should be taken only as a last resort deserve full respect.\nHowever, we cannot ignore the growing tendency amongst allottees of commercial and other lands to enjoy the public property without paying the premium, ground rent etc. A very large number of cases have come to our notice in which the allottees have not paid a single penny after occupying the allotted property.\nTherefore, we are of the opinion that in those cases where the allottee consistently defaults in payment of the premium etc. it will be open to the competent authority to take action under Section 8A or Rule 12(3).\"\n27.  That was not the correct approach to be adopted by the High Court.\nCASE LAWS :\n28. In Jasbir Kaur 1999 Indlaw SC 475 (supra), a Bench of this Court of which one of us V.N. Khare, J. (as the CJI then was, was a Member) without expressing any opinion on the question of law as raised therein directed regularization of allotment of the site in favour of the appellant taking note of the fact that the entire amount which was due had been paid. In Jasbir Kaur v. Union Territory of Chandigarh & Ors., [1991] 1 P.L.J. 417, a Division Bench of the Punjab & Harayana High Court following its earlier decision in Ram Puri 1982 Indlaw PNH 189 (supra) in the facts and circumstances of the case held that in case of default, the interest chargeable would be 10% and not 18%.\n29.  In Kashmir Chand 1996 Indlaw SC 2890 (supra), again in a case where the payments had been made, relief had been given to the parties. In an unreported decision of this Court dated 23.1.1998 in Batra Finance (supra), this Court in the fact situation obtaining therein observed that the direction for forfeiture should not have been passed by the High Court with liberty to file application for re-allotment, considering the fact that the interest on unpaid amount had been calculated on the basis of graduated interest from 12% to 24% and penalty on the first instalment had also been calculated at Rs. 31,400 and for the second instalment at Rs. 83,912 and further in view of the fact that the appellant had already deposited a sum of Rs. 24,90,000.\n30.  In Surinder Kumar 1998 Indlaw SC 1537 (supra), this Court directed payment of interest @ 18% on the delayed payments consisting of 11% penalty plus 7% regular interest on defaulted instalments and directed :\n\"... In short, as a condition for cancellation of resumption order the appellant will be required to pay in all, apart from the defaulted amounts, 18% interest on the delayed payments of instalments. This will be worked out by the appropriate authority and whatever balance is payable by the appellant shall be paid over by her within a period of four weeks from the intimation to him of such calculation and determination of payable amount by the appropri-ate authority, namely, the Estate Officer, Punjab Uraban Planning & Development Authority, SAS Nagar (Mohali), District Ropal, Respondent 4, before whom the appellant will produce relevant evidence about the payment of appropriate amounts pursuant to the present order. The shortfall, if any will be made good by her within a period of four weeks after estimation and intimation by the 4th respondent as the allotment of the plot shall stand regularized and resumption order shall stand confirmed.\"\n31.  Yet recently in Sandhu Builders 2003 Indlaw SC 40 (supra), while dismissing the appeal, this Court granted six weeks' time to deposit the balance amount of difference in interest stating :\n\"8. Considering all the facts and circumstances of the case as indicated above, we do not think that it is a case in which any interference is called for in the matter. But we feel that since total amount of premium as well as the amount of interest @ 12% stands deposited as stated on behalf of the appellant, it would not be just and appropriate that the appellant be disallowed the opportunity of depositing the difference in amount on account of enhanced rate of interest i.e. @ 24%.\n9. In the result, we dismiss the appeal with costs but allow the appellant six weeks' time to deposit the balance amount of difference in interest @ 24% as per demand of the respondents.\"\n32.  A three-Judge Bench of this Court in Patiala Inds. Investment Co. Pvt. Ltd. v. Union of India & Anr., [2003] 3 SCC 127 2000 Indlaw SC 4148, on a concession made by the learned Solicitor General that the enhanced rate of interest @ 24% would be chargeable from 22.7.1993, directed :\n\"Revised calculation of the amounts due and payable by the petitioners will be on this basis, will be served on the petitioners within one week from today. Within four weeks from the service of the revised demand 25 per cent of the amount due from each of the petitioner will be paid to the respondents. The balance amount will be paid within four months of the service of notice of demand. It is clarified that the interest will continue to run at the enhanced rate on the deceasing balance till the date of payment.\nIf the payment is made as directed by this order, the Solicitor General states that the respondent will not exercise their right of re- entry/forfeiture and Clause 17 or any other appropriate clause on the ground of delay in payment of the amounts due to the respondents.\"\n33.  In Devinder Singh Pannu & Ors. v. The Chandigarh Admn. & Ors., (Civil Appeal No. 1092 of 1998), this Court having regard to the fact that the appellants therein had already made an application for re-allotment directed the respondent to consider the same. In Devinder Lal Gupra v. U.T. of Chandigarh & Anr., (S.L.P. (Civil) No. 12512 of 1999) by an order dated 15.2.2000, the special leave petition was dismissed with a direction to the respondents that if the petitioners therein made an application for re- allotment of the land to them in accordance with the rules within one week from the said date the respondents would consider the same on merits and try to accommodate the petitioners, if it is possible to retain the land.\nSYMPATHY :\n34.  We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extra- ordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order, which would be in contravention of a statutory provision.\n35. As early as in 1911, Farewell L.J. in Latham v. Richard Johson & Nephew Ltd., (1911-13 AER reprint p. 117) observed :\n\"We must be very careful not to allow our sympathy to affect our judgment with the infant plaintiff. Sentiment is a dangerous will O' the wisp to take as a guide in the search for legal principles.\"\n(See also Ashoke Saha v. State of West Bengal & Ors., CLT (1999) 2 H.C. 1).\n36.  In Sairindhri Ddolui v. State of West Bengal, (2000) 1 SLR 803, a Division Bench of the Calcutta High Court wherein (one of us Sinha, J. was a Member), followed the aforementioned dicta.\n37. This Court also in C.B.S.E. and Another v. P. Sunil Kumar and Others, [1998] 5 SCC 377 1998 Indlaw SC 1330 rejecting a contention that great injustice would perpetrate as the students having been permitted to appear at the examination and having been successful and certificates had been issued in their favour, held :\n\"...We are conscious of the fact that our order setting aside the impugned directions of the High Court would cause injustice to these students. But to permit students of an unaffiliated institution to appear at the examination conducted by the Board under orders of the Court and then to compel the Board to issue certificates in favour of those who have undertaken examination would tantamount to subversion of law and this Court will not be justified to sustain the orders issued by the High Court on misplaced sympathy in favour of the students...\"\nPROPORTIONALITY :\n38.  The issue in the light of the decision of the full Bench of the Punjab & Haryana High Court in Ram Puri v. Chief Commissioner, Chandigarh, AIR (1982) P & H 301 1982 Indlaw PNH 189 (supra) as affirmed by this Court in Babu Singh Bains  & Ors. v. Union of India A Ors., [1996] 6 SCC 565 1996 Indlaw SC 2539 (supra) may have to be considered from another angle.\n39. By reason of the auction held, the land in question has been sold in favour of the appellant. A letter of allotment has been issued in terms thereof. The appellant has been put in possession of the purchased property. In law he was entitled to raise constructions and in fact he has raised a six storied building. He has paid a part of the first instalment and during pendency of the proceeding before the High Court has paid a substantial amount together with interest @ 12% p.a. as enhanced from time to time.\n40.  The respondents were entitled to pay interest on the unpaid amount @ 7% p.a. which in the event of non-payment was to be paid at a penal rate of 12% and subsequently enhanced to 15 per cent and then to 24 per cent as well the amount of penalty to be levied thereupon. The entire amount was recoverable through the process of law. In a situation of this nature, having regard to the rival claims made by the parties, if the default is not absolute wilful or a dishonest one but occasioned due to situation which may be beyond one's control, the statutory right of the respondent in resuming the land may not be appropriate, if the entire dues stand discharged.\n41. In terms of the provisions of the Act, the respondents are entitled to, (1) resumption of the land, (2) resumption of the building and (3) forfeiture of the entire amount paid or deposited. Having regard to the extreme hardship which may be faced by the parties, the same shall not ordinarily be resorted to. The situation, thus, in our opinion, warrants application of the doctrine of proportionality.\n42.  The said doctrine originated as far back as in 19th century in Russia and later adopted by Germany, France and other European countries as has been noticed by this Court in Om Kumar v. Union of India, [2001] 2 SCC 386 2000 Indlaw SC 2713.\n43. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority \"maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve.\"\n44.  This Court as far back as in 1952 in the State of Madras v. KG. Row, AIR (1952) SC 196 1952 Indlaw SC 33, observed :\n\"The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and limit to their interferences with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflecting that the Constitution is meant not only for the people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable.\"\n45.  The principle started gaining momentum in other countries and it was applied and developed in England as noticed by Lord Diplock in R. v. Secretary of State for the Home Department, ex Brind, [1991] 1 A.C. 696. This Court in Tata Cellular v. Union of India, [1994] 6 SCC 651 1994 Indlaw SC 17 while opining in concurrence with the judgment of the House of Lords in Council of Civil Services Union v. Minister of Civil Service, [1985] A.C. 374 that the extent of judicial review should ordinarily be limited to illegality, irrationality and procedural impropriety observed that they are only the broad grounds but did not rule out addition of further grounds in the course of time and also noticed 'Brind' (supra).\n46. Ever since 1952, the principle of proportionality has been applied vigorously to legislative and administrative action in India. While dealing with the validity of legislation infringing fundamental freedoms enumerated in Article 19(1) of the Constitution of India, this Court had occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. In cases where such legislation is made and the restrictions are reasonable yet, if the statute concerned permitted administrative authorities to exercise power or discretion while imposing restrictions in individual situations, question frequently arises whether a wrong choice is made by the administrator for imposing the restriction or whether the administrator has not properly balanced the fundamental right and the need for the restriction or whether he has imposed the least of the restrictions or the reasonable quantum of restrictions etc. in such cases, the administrative action in our country has to be tested on the principle of proportionality, just as it is done in the case of main legislation. This, in fact, is being done by the courts. Administrative action in India affecting the Fundamental Freedoms has always been tested on the anvil of the proportionality in the last 50 years even though it has not been expressly stated that the principle that is applied is the proportionality principle. [See Om Kumar 2000 Indlaw SC 2713 (supra)].\n47.  In Om Kumar 2000 Indlaw SC 2713 (supra), however, this Court evolved the principle of Primary and Secondary Review. The doctrine of primary view was held to be applicable in relation to the statutes or statutory rules or any order which has the force of statute. The secondary review was held to be applicable inter alia in relation to the action in a case where the executive is guilty of acting patently arbitrarily. This Court noticed E.P. Royappa v. State of Tamil Nadu, [1974] 4 SCC 3 1973 Indlaw SC 66 and observed that in such a case Article 14 of the Constitution of India would be attracted. In relation to other administrative actions as for example punishment in a departmental proceeding, the doctrine of proportionality was equated with Wednesbury Unreasonableness.\n48.  We may, however, notice that the said doctrine in principle or the spirit thereof has recently been applied by the Court of Appeals.\n49. In Edore v. Secretary of State for the Home Department, [2003] 3 All ER 1265 : [2003] 1 W.L.R. 2979, the appellant was a citizen of Nigeria who had entered into the United Kingdom and remained back after her visa had expired. She had two children, born to a British citizen. The children were emotionally dependent on him and he was a stabling influence on their lives. If the appellant and her children were returned to Nigeria, their relationship with their father would end. The Court trying to resolve the conflict at hand opined :\n\"Where the essential facts were not in doubt or dispute, the adjudicator's task was to determine whether the decisions under appeal was properly one with the decision-makers discretion, namely that it was a decision which could reasonably be regarded as striking a fair balance between the competing interests in law. If it were, then the adjudicator could not characterize it as a decision 'not in accordance with the law' and so, even if he personally would have preferred the balance to have been struck differently, he could not substitute his preference for the decision in fact taken.\nHowever, there would be occasions where it could be properly be said that the decision reached was outside the range of permissible responses open to him, in that the balance struck was simply wrong.\"\n50.  In a later case although the doctrines of the proportionality was not expressly referred to but the spirit thereof was applied, in R. v. Levisham London Borough Council, [2003] 3 All ER 1277 : [2004] H.L.R. 4, wherein it was held :\n\"When the decision maker comes to balance the factors he is entitled to a place in the scales.\nThus, even though the length of delay and reasons for it are often balanced against the prospect of success, it is possible to envisage circumstances in which an authority can rationally and properly conclude that even short delay for which there is a good explanation is not enough to justify a an extension of time for review.\"\nCONCLUSION :\n51.  Keeping in view the aforementioned principles in mind would it be proper for us to take a view as has been suggested by Ms. Jaiswal? The answer to the said question must be rendered in the negative, if the competing interests can be balanced.\n52. The appellants had sought to show their bona fide in making their payments before the High Court. They had also shown their willingness to make the payments on the difference of amount of interest. They pursuant to the order of this Court not only paid the entire amount due but also paid ground rent upto 1988-1999 and further paid 10% penalty on the forfeited amount of entire consideration money amounting to Rs. 2,87,000.\n53.  The land in question for all intent and purport had been transferred in favour of the appellants. They were merely to pay the balance amount of 75% of the consideration amount in instalments. The rate of interest, as noticed hereinbefore, had been increased from 7% to 24%. Penalty was levied by the appellant authority at 1% and the revisional authority at 2%. Contrary thereto the Estate Officer, however, in terms of his original order directed payment of penalty at 10% F.F.\n54.  We may, however, hasten to add that we do not intend to lay down a law that the statutory right conferring the right of the respondent should never be resorted. We have merely laid down the principle giving some illustrations where it may not be used. There cannot be any doubt whatsoever that if the intention of the allottee is dishonest or with an ill motive and if the allottee does not make any payment in terms of the allotment or the statute with a dishonest view or any dishonest motive, then Section 8(1) can be taken recourse to. We, however, cannot but deprecate the conduct of the appellants in not making an endeavour to pay the instalments within a reasonable period. They, thus, did not pay the entire amount of the first instalment within the stipulated period; only a part payment was made in the year 1990 and 1992 by that time even the second instalment became due. They did not make any payment before the revisional authority despite the order passed by the appellate authority. We, therefore, are of the opinion that the appellant in C.A. No. 49 of 1999 should deposit a further sum of Rs. 15,00,000 (Rupees fifteen lacs) with the Estate Officer, Chandigarh within a period of ten weeks from date of receipt of a copy of this order, which, in our opinion would meet the ends of justice.  However, so far as the other matters are concerned, having regard to the facts and circumstances obtaining in their cases, we do not intend to direct levy of any penalty on them.\nThese appeals are disposed of in the above terms. No costs.\nAppeal disposed of\n"}
+{"id": "nnBbuQzkCh", "title": "", "text": "Secretary, State of Karnataka and Others v Umadevi and Others\nSupreme Court of India\n\n10 April 2006\nAppeal (Civil) 3595-3612 of 1999 with C.A. No. 1861-2063/2001, 3849/2001, 3520-3524/2002 and C.A. No. 1968 of 2006 Arising out of S.L.P.(C) 9103-9105 of 2001\nThe Judgment was delivered by: P. K. Balasubramanyan, J.\nLeave granted in SLP(C) Nos.9103-9105 of 2001.\n1.  Public employment in a sovereign socialist secular democratic re public has to be as set down by  Constitution and the laws made there under. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that un equals are not treated equals. Thus, any public employment has to be in terms of the Constitutional scheme.\n2.  A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.\n3.  But, sometimes this process is not adhered to and the  Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the Constitutional scheme. Such orders are passed apparently in exercise of the wide powers u/art. 226 of the Constitution of India.\n4. Whether the wide powers u/art. 226 of the  Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers u/art. 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.\n5.  This Court has also on occasions issued directions which could not be said to be consistent with the  Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the  Constitution and not to make directions, which at times, even if do not run counter to the  Constitutional scheme, certainly tend to water down the  Constitutional requirements. It is this conflict that is reflected in these cases referred to the  Constitution Bench.\n6.  The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Art. 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Art. 309 of the  Constitution, then the Government can make appointments only in accordance with the rules.\n7. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the  Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Art. 309 of the  Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.\n8.  These two sets of appeals reflect the cleavage of opinion in the High Court of Karnataka based on the difference in approach in two sets of decisions of this Court leading to a reference of these appeals to the  Constitution Bench for decision. The conflict relates to the right, if any, of employees appointed by the State or by its instrumentalities on a temporary basis or on daily wages or casually, to approach the High Court for the issue of a writ of mandamus directing that they be made permanent in appropriate posts, the work of which they were otherwise doing. The claim is essentially based on the fact that they having continued in employment or engaged in the work for a significant length of time, they are entitled to be absorbed in the posts in which they had worked in the department concerned or the authority concerned. There are also more ambitious claims that even if they were not working against a sanctioned post, even if they do not possess the requisite qualification, even if they were not appointed in terms of the procedure prescribed for appointment, and had only recently been engaged, they are entitled to continue and should be directed to be absorbed.\n9.  In Civil Appeal Nos.3595-3612 of 1999 the respondents therein who were temporarily engaged on daily wages in the Commercial Taxes Department in some of the districts of the State of Karnataka claim that they worked in the department based on such engagement for more than 10 years and hence they are entitled to be made permanent employees of the department, entitled to all the benefits of regular employees. They were engaged for the first time in the years 1985-86 and in the teeth of orders not to make such appointments issued on 3.7.1984. Though the Director of Commercial Taxes recommended that they be absorbed, the Government did not accede to that recommendation. These respondents thereupon approached the Administrative Tribunal in the year 1997 with their claim. The Administrative Tribunal rejected their claim finding that they have not made out a right either to get wages equal to that of others regularly employed or for regularization. Thus, the applications filed were dismissed. The respondents approached the High Court of Karnataka challenging the decision of the Administrative Tribunal.\n10. It is seen that the High Court without really coming to grips with the question falling for decision in the light of the findings of the Administrative Tribunal and the decisions of this Court, proceeded to order that they are entitled to wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service with effect from the dates from which they were respectively appointed. It may be noted that this gave retrospective effect to the judgment of the High Court by more than 12 years. The High Court also issued a command to the State to consider their cases for regularization within a period of four months from the date of receipt of that order. The High Court seems to have proceeded on the basis that, whether they were appointed before 01.07.1984, a situation covered by the decision of this Court in Dharwad District Public Works Department vs. State of Karnataka (1990 (1) SCR 544 1990 Indlaw SC 723) and the scheme framed pursuant to the direction there under, or subsequently, since they have worked for a period of 10 years, they were entitled to equal pay for equal work from the very inception of their engagement on daily wages and were also entitled to be considered for regularization in their posts.\n11.  Civil Appeal Nos.1861-2063 of 2001 reflects the other side of the coin. The appellant association with indefinite number of members approached the High Court with a writ petition u/art. 226 of the Constitution of India challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers made after 01.07.1984 and further seeking a direction for the regularization of all the daily wagers engaged by the government of Karnataka and its local bodies. A learned Single Judge of the High Court disposed of the writ petition by granting permission to the petitioners before him, to approach their employers for absorption and regularization of their services and also for payment of their salaries on par with the regular workers, by making appropriate representations within the time fixed therein and directing the employers to consider the cases of the claimants for absorption and regularization in accordance with the observations made by the Supreme Court in similar cases. The State of Karnataka filed appeals against the decision of the learned Single Judge.\n12. A Division Bench of the High Court allowed the appeals. It held that the daily wage employees, employed or engaged either in government departments or other statutory bodies after 01.07.1984, were not entitled to the benefit of the scheme framed by this Court in Dharwad 1990 Indlaw SC 723 District Public Works Department case, referred to earlier. The High Court considered various orders and directions issued by the government interdicting such engagements or employment and the manner of entry of the various employees. Feeling aggrieved by the dismissal of their claim, the members of the associations have filed these appeals.\n13.  When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges. The order of reference is reported in This Court noticed that in the matter of regularization of ad hoc employees, there were conflicting decisions by three Judge Benches of this Court and by two Judge Benches and hence the question required to be considered by a larger Bench. When the matters came up before a three Judge Bench, the Bench in turn felt that the matter required consideration by a Constitution Bench in view of the conflict and in the light of the arguments raised by the Additional Solicitor General. The order of reference is reported in 2003 (10) SCALE 388. It appears to be proper to quote that order of reference at this stage. It reads:\n\"1. Apart from the conflicting opinions between the three Judges' Bench decisions in Ashwani Kumar and Ors. Vs. State of Bihar and Ors., reported in 1997 (2) SCC 1 1996 Indlaw SC 372, State of Haryana and Ors vs., Piara Singh and Ors. Reported in 1992 (4) SCC 118 1992 Indlaw SC 777 and Dharwad Distt. P.W.D. Literate Daily Wage Employees Association and Ors. Vs. State of Karnataka and Ors. Reported in 1990 (2) SCC 396 1990 Indlaw SC 723, on the one hand and State of Himachal Pradesh vs. Suresh Kumar Verma and Anr., reported in AIR 1996 SC 1565 1996 Indlaw SC 3143, State of Punjab vs. Surinder Kumar and Ors. Reported in AIR 1992 SC 1593 1991 Indlaw SC 952, and B.N. Nagarajan and Ors. Vs. State of Karnataka and Ors., reported in 1979 (4) SCC 507 1979 Indlaw SC 600 on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in State of Karnataka vs. H. Ganesh Rao, decided on 1.6.2000, reported in 2001 (4) Karnataka Law Journal 466, learned Additional Solicitor General urged that the scheme for regularization is repugnant to Arts. 16(4), 309, 320 and 335 of the Constitution of India and, therefore, these cases are required to be heard by a Bench of Five learned Judges (Constitution Bench). \"\n2. On the other hand, Mr. M.C. Bhandare, learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of Arts. 14 and 21 of the  Constitution.\n3. Mr. V. Lakshmi Narayan, learned counsel, appearing in CC Nos.109-498 of 2003, has filed the G.O. dated 19.7.2002 and submitted that orders have already been implemented.\n4. After having found that there is conflict of opinion between three Judges Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges.\n5. Let these matters be placed before Hon'ble the Chief Justice for appropriate orders.\"\n14. We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should.\n15.  In addition to the equality clause represented by Art. 14 of the  Constitution, Art. 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Art. 309 provides that subject to the provisions of the  Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Art. 12 of the  Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Art. 12 of the  Constitution. With a view to make the procedure for selection fair, the  Constitution by Art. 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Art. 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Art. 16 of the  Constitution, Art. 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. the Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.\n16.  In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the  Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the  Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the Constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting u/art. 226 of the  Constitution or u/art. 32 of the  Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the Constitutional scheme.\n17.  What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the  Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the Constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the  Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the Constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964 1963 Indlaw SC 314).\nIt was held therein, \"In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status.\"\n18.  During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the Constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment.\n19. The argument on behalf of some of the respondents is that this Court having once directed regularization in the Dharwad 1990 Indlaw SC 723 case (supra), all those appointed temporarily at any point of time would be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the Constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the Constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.\n20.  Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In State Of Mysore Vs. S.V. Narayanappa [1967 (1) S.C.R. 128 1966 Indlaw SC 70], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. Nanjundappa Vs T. Thimmiah & Anr. [(1972) 2 S.C.R. 799 1971 Indlaw SC 281], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:-\n\"Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules u/art. 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the  Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.\"\n21. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937 1979 Indlaw SC 600], this court clearly held that the words \"regular\" or \"regularization\" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Art. 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government u/art. 162 of the  Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.\n22.  We have already indicated the Constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the Constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.\n23.  Without keeping the above distinction in mind and without discussion of the law on the question or the effect of the directions on the Constitutional scheme of appointment, this Court in Daily Rated Casual Labour Vs. Union of India & Ors. (1988 (1) SCR 598 1987 Indlaw SC 28447) directed the Government to frame a scheme for absorption of daily rated casual labourers continuously working in the Posts and Telegraphs Department for more than one year. This Court seems to have been swayed by the idea that India is a socialist republic and that implied the existence of certain important obligations which the State had to discharge. While it might be one thing to say that the daily rated workers, doing the identical work, had to be paid the wages that were being paid to those who are regularly appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its Executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the  Constitution and the laws made there under concerning public employment. The same approach was made in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation (1989 Suppl. (2) SCR 513 1989 Indlaw SC 347) where this Court directed regularization of daily rated workers in phases and in accordance with seniority.\n24.  One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter- productive.\n25.  The Decision in Dharwad Distt. P.W.D. Literate Daily Wage Employees Association & ors. Vs. State of Karnataka & Ors. (1990 (1) SCR 544 1990 Indlaw SC 723) dealt with a scheme framed by the State of Karnataka, though at the instance of the court. The scheme was essentially relating to the application of the concept of equal pay for equal work but it also provided for making permanent, or what it called regularization, without keeping the distinction in mind, of employees who had been appointed ad hoc, casually, temporarily or on daily wage basis. In other words, employees who had been appointed without following the procedure established by law for such appointments. This Court, at the threshold, stated that it should individualize justice to suit a given situation. With respect, it is not possible to accept the statement, unqualified as it appears to be. This Court is not only the Constitutional court, it is also the highest court in the country, the final court of appeal. By virtue of Art. 141 of the Constitution of India, what this Court lays down is the law of the land. Its decisions are binding on all the courts. Its main role is to interpret the Constitutional and other statutory provisions bearing in mind the fundamental philosophy of the Constitution. We have given unto ourselves a system of governance by rule of law. The role of the Supreme Court is to render justice according to law. As one jurist put it, the Supreme Court is expected to decide questions of law for the country and not to decide individual cases without reference to such principles of law. Consistency is a virtue. Passing orders not consistent with its own decisions on law, is bound to send out confusing signals and usher in judicial chaos. Its role, therefore, is really to interpret the law and decide cases coming before it, according to law. Orders which are inconsistent with the legal conclusions arrived at by the court in the self same judgment not only create confusion but also tend to usher in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor's foot.\n26.  In Dharwad 1990 Indlaw SC 723 case, this Court was actually dealing with the question of 'equal pay for equal work' and had directed the State of Karnataka to frame a scheme in that behalf. In the judgment, this Court stated that the precedents obliged the State of Karnataka to regularize the services of the casual or daily/monthly rated employees and to make them the same payment as regular employees were getting. Actually, this Court took note of the argument of counsel for the State that in reality and as a matter of statecraft, implementation of such a direction was an economic impossibility and at best only a scheme could be framed. Thus a scheme for absorption of casual/daily rated employees appointed on or before 1.7.1984 was framed and accepted. The economic consequences of its direction were taken note of by this Court in the following words.\n\"We are alive to the position that the scheme which we have finalized is not the ideal one but as we have already stated, it is the obligation of the court to individualize justice to suit a given situation in a set of facts that are placed before it. Under the scheme of the  Constitution, the purse remains in the hands of the executive. The legislature of the Statecontrols the Consolidated Fund out of which the expenditure to be incurred, in giving effect to the scheme, will have to be met. The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer. Therefore, unduly burdening the State for implementing the Constitutional obligation forthwith would create problems which the State may not be able to stand. We have, therefore, made our directions with judicious restraint with the hope and trust that both parties would appreciate and understand the situation. The instrumentality of the State must realize that it is charged with a big trust. The money that flows into the Consolidated Fund and constitutes the resources of the State comes from the people and the welfare expenditure that is meted out goes from the same Fund back to the people. May be that in every situation the same tax payer is not the beneficiary. That is an incident of taxation and a necessary concomitant of living within a welfare society.\"\n27. With respect, it appears to us that the question whether the jettisoning of the Constitutional scheme of appointment can be approved, was not considered or decided. The distinction emphasized in R.N. Nanjundappa Vs T. THIMMIAH & ANR. (supra), was also not kept in mind. The Court appears to have been dealing with a scheme for 'equal pay for equal work' and in the process, without an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.\n28.  We may now consider, State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826 1992 Indlaw SC 777]. There, the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. This Court started by saying:\n\"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Art. 309 of the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any governing the conditions of service\"\n29. This Court then referred to some of the earlier decisions of this Court while stating:\n\"The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Arts. 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the  Constitution. it is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above.\"\nThis Court then concluded :\n\"The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.\nSecondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.\nThirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Art. 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.\nAn unqualified person ought to be appointed only when qualified persons are not available through the above processes.\nIf for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State \"\n30. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent the distinction between regularization and making permanent, was not emphasized here can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in  Piara Singh 1992 Indlaw SC 777 (supra) are to some extent inconsistent with the conclusion therein. With great respect, it appears to us that the last of the directions clearly runs counter to the Constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.\n31.  We shall now refer to the other decisions. In State of Punjab and others Vs. Surinder Kumar and others (1991 Suppl. (3) SCR 553 1991 Indlaw SC 952), a three judge bench of this Court held that High Courts had no power, like the power available to the Supreme Court u/art. 142 of the Constitution of India, and merely because the Supreme Court granted certain reliefs in exercise of its power u/art. 142 of the Constitution of India, similar orders could not be issued by the High Courts. The bench pointed out that a decision is available as a precedent only if it decides a question of law. The temporary employees would not be entitled to rely in a Writ Petition they filed before the High Court upon an order of the Supreme Court which directs a temporary employee to be regularized in his service without assigning reasons and ask the High Court to pass an order of a similar nature.\n32. This Court noticed that the jurisdiction of the High Court while dealing with a Writ Petition was circumscribed by the limitations discussed and declared by judicial decisions and the High Court cannot transgress the limits on the basis of the whims or subjective sense of justice varying from judge to judge. Though the High Court is entitled to exercise its judicial discretion in deciding Writ Petitions or Civil Revision Applications coming before it, the discretion had to be confined in declining to entertain petitions and refusing to grant reliefs asked for by the petitioners on adequate considerations and it did not permit the High Court to grant relief on such a consideration alone. This Court set aside the directions given by the High Court for regularization of persons appointed temporarily to the post of lecturers. The Court also emphasized that specific terms on which appointments were made should be normally enforced. Of course, this decision is more on the absence of power in the High Court to pass orders against the Constitutional scheme of appointment.\n33.  In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava (Smt.) (1992 (3) SCR 712 1992 Indlaw SC 1190), this Court held that since the appointment was on purely contractual and ad hoc basis on consolidated pay for a fixed period and terminable without notice, when the appointment came to an end by efflux of time, the appointee had no right to continue in the post and to claim regularization in service in the absence of any rule providing for regularization after the period of service. A limited relief of directing that the appointee be permitted on sympathetic consideration to be continued in service till the end of the concerned calendar year was issued. This Court noticed that when the appointment was purely on ad hoc and contractual basis for a limited period, on the expiry of the period, the right to remain in the post came to an end. This Court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.\n34.  In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Others [AIR 1994 SC 1638 1992 Indlaw SC 1292], a three judge bench of this Court held that ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece-rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from one to two years. This decision indicates that if the engagement was made in a particular work or in connection with particular project, on completion of that work or of that project, those who were temporarily engaged or employed in that work or project could not claim any right to continue in service and the High Court cannot direct that they be continued or absorbed elsewhere.\n35.  In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972 1996 Indlaw SC 3143), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said:\n\"It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules.\"\n\"Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, \"the judicial process would become another mode of recruitment dehors the rules.\"\n36.  In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120 1995 Indlaw SC 830), this Court was considering the validity of confirmation of the irregularly employed. It was stated:\n\"So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility.\"\nThis Court further stated:\n\"In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularized and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment.\"\nThe Court noticed that in that case all constitutional requirements were thrown to the wind while making the appointments. It was stated, \"On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Arts. 14 and 16(1) of the Constitution of India, both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme.\"\n37.  It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the Constitutional scheme for public employment.\n38.  In A. Umarani Vs. Registrar, Cooperative Societies and Others (2004 (7) SCC 112 2004 Indlaw SC 606), a three judge bench made a survey of the authorities and held that when appointments were made in contravention of mandatory provisions of the Act and statutory rules framed there under and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power u/art. 162 of the  Constitution to regularize such appointments. This Court also held that regularization is not and cannot be a mode of recruitment by any State within the meaning of Art. 12 of the Constitution of India or anybody or authority governed by a statutory Act or the Rules framed there under. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. It was also held that the fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.\n39.  Incidentally, the Bench also referred to the nature of the orders to be passed in exercise of this Court's jurisdiction u/art. 142 of the  Constitution. This Court stated that jurisdiction u/art. 142 of the  Constitution could not be exercised on misplaced sympathy. This Court quoted with approval the observations of Farewell, L.J. in Latham vs. Richard Johnson & Nephew Ltd. (1913 (1) KB 398)\" \"We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles.\"\n40. This Court also quoted with approval the observations of this Court in Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh (2004 (2) SCC 130 2003 Indlaw SC 1504) to the effect:\n\"We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Art. 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.\"\n41. This decision kept in mind the distinction between 'regularization' and 'permanency' and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature.\n42.  It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In State of U.P. vs. Niraj Awasthi and others (2006 (1) SCC 667 2005 Indlaw SC 1017) this Court after referring to a number of prior decisions held that there was no power in the State under Art. 162 of the Constitution of India to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules. This Court also held that past alleged regularisation or appointment does not connote entitlement to further regularization or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularization. This view was reiterated in State of Karnataka vs. KGSD Canteen Employees Welfare Association (JT 2006 (1) SC 84 2006 Indlaw SC 1).\n43.  In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115 2006 Indlaw SC 26], this Court answered the question, who was a Government servant and stated:\n\"Art. 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Art. 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words \"employment\" or \"appointment\" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made.\nA regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Art. 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363 1983 Indlaw SC 42).\"\n44.  There have been decisions which have taken the cue from the Dharwad 1990 Indlaw SC 723 (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. (JT 2006 (2) SC 1 2006 Indlaw SC 17), though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent.\n45.  At this stage, it is relevant to notice two aspects. In Kesavananda Bharati Vs. State of Kerala (1973 Supp. S.C.R. 1), 1973 Indlaw SC 537 this Court held that Article 14, and Article 16, which was described as a facet of Article 14, is part of the basic structure of the Constitution of India. The position emerging from Kesavananada Bharati 1973 Indlaw SC 537 (supra) was summed up by Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney Vs. Union of India (1999 Suppl. (5) S.C.R. 229 1996 Indlaw SC 1534). That decision also reiterated how neither the Parliament nor the Legislature could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Art. 14 of which Art. 16 (1) is a facet. This Court stated, \" The preamble to the Constitution of India emphasises the principle of equality as basic to our constitution. In Keshavananda Bharati v. State of Kerala 1973 Indlaw SC 537, it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, CJ. laid stress on the basic features enumerated in the preamble to the  Constitution and said that there were other basic features too which could be gathered from the Constitutional scheme . Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality . Hegde & Shelat, JJ. also referred to the Preamble. Ray, J. (as he then was) also did so . Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine. Khanna, J. accepted this position. Mathew, J. referred to equality as a basic feature. Dwivedi, J. and Chandrachud, J.(as he then was)  accepted this position.\n46. What we mean to say is that Parliament and the legislatures in this Country cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Art. 14 of which Art. 16(1) is a facet.\"\n47.  In the earlier decision in Indra Sawhney Vs. Union of India [1992 Supp. (2) S.C.R. 454 1992 Indlaw SC 735), B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Arts. 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:\n\"6) The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Art. 14 but proceeded further to state the same rule in positive and affirmative terms in Arts. 15 to 18\n7) Inasmuch as public employment always gave a certain status and power --- it has always been the repository of State power ---besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Art. 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while cl. (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in cl. (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state ..\"\n48. These binding decisions are clear imperatives that adherence to Arts. 14 and 16 of the  Constitution is a must in the process of public employment.\n49.  While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs. State of Bihar & Ors. (1987 (1) S.C.R. 798 1986 Indlaw SC 247) stated:\n\"The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the Constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the Constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.\"\nThus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Art. 14 or in ordering the overlooking of the need to comply with the requirements of Art. 14 read with Art. 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued.\nSimilarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting u/art. 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the Constitutional and statutory mandates.\n50.  The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after the Dharwad 1990 Indlaw SC 723 decision, the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction u/art. 226 or 32 of the Constitution or in exercise of power u/art. 142 of the Constitution of India permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.\n51.  While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the Constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Art. 14 of the Constitution of India.\n52.  Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in Dharwad 1990 Indlaw SC 723 (supra), Piara Singh 1992 Indlaw SC 777 (supra), Jacob, and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized. The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn {See Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1985 Appeal Cases 374), National Buildings Construction Corpn. Vs. S. Raghunathan, (1998 (7) SCC 66 1998 Indlaw SC 1178) and Dr. Chanchal Goyal Vs. State of Rajasthan (2003 (3) SCC 485 2003 Indlaw SC 161). There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the Constitutional scheme.\n53. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after the Dharwad 1990 Indlaw SC 723 decision. Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court. Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment. The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation. The argument if accepted would also run counter to the Constitutional mandate. The argument in that behalf has therefore to be rejected.\n54.  When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.\n55.  It was then contended that the rights of the employees thus appointed, under Arts. 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work.\n56. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Arts. 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Arts. 14 and 16 of the Constitution are therefore overruled.\n57.  It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the Constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Arts. 14 and 16 of the Constitution.\n58.  It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Art. 21 of the  Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Art. 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment.\n59. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Art. 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Art. 21 of the Constitution. The argument that Art. 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the Constitutional scheme and the Constitutional goal of equality.\n60.  The argument that the right to life protected by Art. 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State u/art. 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the  Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the Constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Art. 21 of the Constitution.\n61.  Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144 1961 Indlaw SC 358]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.\n62.  One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa 1966 Indlaw SC 70 (supra), R.N. Nanjundappa 1971 Indlaw SC 281 (supra), and B.N. Nagarajan 1979 Indlaw SC 600 (supra), and referred to in paragraph above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the Constitutional requirement and regularizing or making permanent, those not duly appointed as per the Constitutional scheme.\n63.  It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.\n64.  In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them.\n65. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weight age for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court u/art. 142 of the Constitution to do justice to them.\n66.  Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.\n67.  C.A. Nos. 3520-24 of 2002 have also to be allowed since the decision of the Zilla Parishads to make permanent the employees cannot be accepted as legal. Nor can the employees be directed to be treated as employees of the Government, in the circumstances. The direction of the High Court is found unsustainable.\n68.  In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001 are allowed subject to the direction issued u/art. 142 of the Constitution  and the general directions contained in  the judgment and Civil Appeal Nos. 1861-2063 of 2001 are dismissed. There will be no order as to costs.\nAppeal dismissed.\n"}
+{"id": "9s8OrJQUdL", "title": "", "text": "State of Punjab and Others v Surinder Kumar and Others\nSupreme Court of India\n\n20 December 1991\nC.A. No. 5060 of 1991 and S.L.P. No. 14229 of 1991\nThe Judgment was delivered by LALIT MOHAN SHARMA J.\n1. This special leave petition is directed against the order of the High Court dated April 4, 1991, disposing of a writ petition filed by the present two respondents. The entire judgment reads thus\n\"On the facts and circumstances of the case, we are of the opinion that the just and fair order should be that the petitioners who have been appointed on part time basis should be continued until the Government makes regular appointments on the recommendations of the Public Service Commission. Meanwhile, the petitioners will get their salary for the period of the vacation.\"\n2. Notice was issued to the respondents asking them to get ready for final disposal of the case, and accordingly, they have filed their counter-affidavits followed by further affidavits by the parties\nSpecial leave is granted\n3. In pursuance of certain instructions issued by the Director, Education Department of the State of Punjab in 1990, each of the respondents was offered a post, as per annexures P-1 and P-2, respectively, of part-time lecturer on the specific condition that he could be relieved at any time without notice, and that the payment would be made at the rate indicated therein on hourly basis. The respondents accepted the offers and were appointed accordingly. On February 26, 1991, the respondents filed the writ petition (CWP No. 3150 of 1991), contending that they were entitled to be regularised in their posts as lecturers with salary on the regular pay scale\n4. A written statement was filed refuting the claim in the writ petition and giving the references of similar writ petitions which had been earlier dismissed by this court. The respondents also detailed relevant facts which clearly distinguish the regularly appointed lecturers from the part.-time appointees, and indicate that the writ petition was fit to be dismissed. The court, however, without dealing with any of the points raised by the appellants  allowed the writ petition by cryptic order, which has been quoted aboveIt is not contested that an instruction by the Education Department was issued in pursuance of which the appointments of the respondents in question as part-time lecturers were made. It is also not suggested that the respondents accepted the terms set out in annexures P-1 and P-2 under mistake. We, therefore, do not find any reason as to why the specific terms on which the appointments were made could not be enforced. We have gone through the special leave petition, the respondents' counter-affidavit and the other affidavits filed by the parties, and do not find any relevant material or tenable plea in support of the claim in the writ petition filed in the High Court. Learned counsel for the respondents also could not suggest any ground for sustaining the impugned order except contending that this court has issued directions for absorption of temporary or ad hoc Government servants on a permanent basis in several cases. It has been argued that if this could be done by this court without assigning any reasons, it should be open to the High Courts as well to allow writ petitions in similar terms. We are not in a position to agree\n5. A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled to rely upon an order of this court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that on special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a court whose judgment is not subject to further appeal and other courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to, enable a higher court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this court. It is, therefore, futile to suggest that if this court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this court. The Constitution of India has, by article 142, empowered the Supreme Court to make such orders as may be necessary \"for doing complete justice in any cause or matter pending before it\", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from judge to judgeIt is true that the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications but this discretion has to be confined to declining to entertain petitions and refusing to grant relief asked for by the petitioners, on adequate considerations ; and it does not permit the High Court to grant relief on such a consideration alone\n6. We, therefore, reject the argument addressed on behalf of the respondents that the High Court was entitled to pass any order which it thought fit in the interests of justice. Accordingly, we set aside the impugned order and allow the appeal but, in the circumstances, without costs\n"}
+{"id": "tUeC99enq5", "title": "", "text": "State of Himachal Pradesh and Another v Ravinder Singh\nSupreme Court of India\n\n28 March 2008\nC.A. No 2224 of 2008 (Arising Out of S.L.P. (C) No. 3347/2006)\nThe Judgment was delivered by : Arijit Pasayat, J.\nLeave granted.\n1.  Challenge in this appeal is to the judgment of a learned Single Judge of the Himachal Pradesh High Court by which two Writ Petitions filed by the respondent were disposed of. The controversy lies within a very narrow compass.\n2.  The present dispute relates to Civil Writ Petition No.354 of 2000. Before dealing with the rival contentions the factual background needs to be noted.\n3.  Respondent was appointed on 3.9.1980 as a daily-rated worker in the Horticulture Department of the State. In the Writ Petition the prayer was for regularization as a clerk on completion of ten years of service on daily wages basis. It is to be noted that the union of the employees had moved the Labour Court for regularization of all daily wagers. The same was adjudicated by the Industrial Disputes Tribunal. A reference was made to the Labour Court and the State filed its response questioning maintainability of the reference. Initially the Labour Court had decided in favour of the workers but on a Writ Petition being filed, the High Court held in favour of the State holding that the claim for regularization was not maintainable. It was noted that no appointment order was issued and the case of the respondent was not sponsored by the employment exchange. It was also noted that the claim for equal work for equal pay was not maintainable as daily-rated persons were not required to perform duties at par with those in regular service and they did not also fulfil the procedure at the time of recruitment. Two Writ Petitions were filed; in one the challenge was to the order of the Industrial Disputes Tribunal while the Writ Petition to which this Appeal relates to the Award by the Labour Court. It is to be noted that the Labour Court had observed that the employer had regularized the respondent as a Chowkidar with effect from 5.7.1997 which was refused by him. Thereafter the engagement as daily wager was terminated. This order was challenged before the Industrial Disputes Tribunal, u/s. 33 which was dismissed. However, as noted above the High Court has remanded the matter to the Tribunal.\n4.  The High Court in the impugned order held that the approach of the Labour Court was wrong as it has introduced concepts which are unnecessary. It was noted by the High Court that there was no dispute that the respondent was employed as a clerk.\n5.  Learned counsel for the respondents submitted that the question whether the appointment was as a clerk has been concluded by an earlier order of the High Court which has become final and, therefore, the present appeal is misconceived.\n6.  The High Court had rightly observed that the Labour Court embarked upon an uncalled enquiry upon the status of daily-wage workers vis. a.vis regular workers, therefore, the direction was given that the respondent was entitled to be regularized as clerk under the scheme of the Government with effect from 11th July, 1995.\n7.  It is to be noted that the High Court proceeded on erroneous premises. It has observed that there was no dispute that respondent was employed as daily wage worker as clerk with effect from 3rd September, 1980. The High Court itself has observed that the stand of the State was specific that the respondent was engaged as daily-paid labourer for carrying out horticulture operations such as spraying of plants, cleaning the floothers etc. and therefore, the question of discharging the duties of clerk/supervision does not arise. It was also to be noted that the Labour Court had rightly dismissed the claim of the respondent by holding that he and others, being daily wagers, cannot be treated at par with the regular employees. It also noted that the conditions for regularizations under the policy of the Government have not been noticed. The parameters of regularization have been examined by this Court in Secretary, State of Karnataka and Others. v. Uma Devi and Others. (2006(4) SCC 1 2006 Indlaw SC 125 ) as follows:\n\"With respect, it appears to us that the question whether the jettisoning of the Constitutional scheme of appointment can be approved, was not considered or decided. The distinction emphasized in R.N. Nanjundappa v. T. Thimmiah (1972 (1) SCC 409 1971 Indlaw SC 281) was also not kept in mind. The Court appears to have been dealing with a scheme for \"equal pay for equal work\" and in the process, without an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily-rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.\nWe shall now refer to the other decisions. In State of Punjab v. Surinder Kumar (AIR 1992 SC 1593 1991 Indlaw SC 952) a three-Judge Bench of this Court held that the High Courts had no power, like the power available to the Supreme Court u/art. 142 of the Constitution, and merely because the Supreme Court granted certain reliefs in exercise of its power u/art. 142 of the Constitution, similar orders could not be issued by the High Courts. The Bench pointed out that a decision is available as a precedent only if it decides a question of law. The temporary employees would not be entitled to rely in a writ petition they filed before the High Court upon an order of the Supreme Court which directs a temporary employee to be regularised in his service without assigning reasons and ask the High Court to pass an order of a similar nature. This Court noticed that the jurisdiction of the High Court while dealing with a writ petition was circumscribed by the limitations discussed and declared by judicial decis ions and the High Court cannot transgress the limits on the basis of the whims or subjective sense of justice varying from judge to judge. Though the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications coming before it, the discretion had to be confined in declining to entertain petitions and refusing to grant reliefs asked for by the petitioners on adequate considerations and it did not permit the High Court to grant relief on such a consideration alone. This Court set aside the directions given by the High Court for regularization of persons appointed temporarily to the post of lecturers. The Court also emphasized that specific terms on which appointments were made should be normally enforced. Of course, this decision is more on the absence of power in the High Court to pass orders against the Constitutional scheme of appointment.\nThis Court also quoted with approval  the observations of this Court in Teri Oat Estates (P) Limited v. U.T., Chandigarh (2004(2) SCC 130 2003 Indlaw SC 1504) to the effect:\n\"We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary Constitutional jurisdiction contained in Art. 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.\"\n8.  This decision kept in mind the distinction between \"regularization\" and \"permanency\" and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature.\n9.  There have been decisions which have taken the cue from Dharwad case1 and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in Workmen v. Bhurkunda Colliery of Central Coalfields Limited (1983 (4) SCC 582) though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent.\n10.  While answering an objection to the locus standi of the writ petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Bhagwati, C.J., speaking on behalf of the Constitution Bench in D.C. Wadhwa (Dr.) v. State of Bihar (1987 (1) SCC 378 1986 Indlaw SC 247) stated:\n\"The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the Constitutional limitations and if any practice is adopted by the executive which is in flagrant and systematic violation of its Constitutional limitations, Petitioner 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the Constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice.\"\n11.  Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Art. 14 or in ordering the overlooking of the need to comply with the requirements of Art. 14 read with Art. 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting u/art. 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as \"litigious employment\" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the Constitutional and statutory mandates.\"\n12.  In addition it has to be noted that the Labour Court had observed that the name of the respondent claimant was not sponsored by the employment exchange; there was no appointment order; the requirements relating to procedure to be followed at the time of recruitment were also not fulfilled. There was a mere back- door entry. It was further noted that they were not selected in the manner as applicable to regular employees who are liable to be transferred and are subject to disciplinary proceedings to which daily-rated workers are not subjected to.\n13.  In the background of what has been stated above the directions given for regularization in the post of clerk being indefensible are set aside. However, undisputedly the appellants had regularized the services of the respondent as a Chowkidar in July, 1997 which the respondent had refused. If the respondent is so advised, he may accept the order in that regard by submitting the requisite documents within six weeks from today. If not so done, the respondent shall not be entitled to any relief in terms of the High Court's impugned order which as noted above we have set aside.\n14.  The appeal is allowed to the aforesaid extent, but without any order as to costs.\nAppeal allowed.\n"}
+{"id": "Y7gbtP7ySe", "title": "", "text": "Bani Singh & Ors. v State Of U.P.\nSupreme Court of India\n\n9 July 1996\nCr.A. No. 82 of 1995 (From the Judgment and Order Dt. 28 November 1990 of the Allahabad High Court in Cr. A. No. 1894 of 1979)\nThe Judgment was delivered by : A. M. Ahmadi, J.\n1. The short question that we are called upon to decide in this appeal is whether the High Court at Allahabad was Justified in dismissing the appeal filed by the accused- appellants against the order of conviction and sentence issued by the trial court, for non-prosecution.\n2. The facts relevant for our consideration can be briefly stated. On 13.6.1979, the VII Addl. Sessions Judge, Bulandshahar, recorded an order convicting the appellants under Sections 366 and 368 of the Indian Penal Code and sentenced them to rigorous imprisonment for three years with a fine of Rs.100/- each. The appellants filed an appeal against this order in the High Court of Allahabad. On 18.6.1979, the appeal was admitted by the High Court and notice was issued. The High Court also issued an interim stay on the execution of the sentence and the realization of fine while granting bail to the appellants. On 28.11.1990, the matter came up for hearing before the High Court. While dismissing the appeal for non-prosecution, the Court recorded the following order :\n\"The List has been revised. No one present to argue the case on behalf of the appellant, Sri T.B. Islam A.C.A. is present on behalf of the State. In view of the law laid down in the case of Ram Naresh Yadav & Ors. Vs. State of Bihar, reported in 1986 Indlaw SC 790, the appeal is dismissed for non- prosecution without going into the merits of the case\"\n3. The appellants preferred an appeal before this Court. On 19.1.1995, a Division Bench of this Court, while hearing the matter, examined the judgment in Ram Naresh Yadav & Ors. Vs. State of Bihar 1986 Indlaw SC 790 and came to the conclusion that it was in conflict with the earlier ruling of this Court in Shyam Deo Pandey & Ors. Vs. State of Bihar 1971 Indlaw SC 811. It, therefore, directed that the matter be heard by a larger bench. Subsequently, the matter was posted before this Bench.\n4. At this juncture, it would be pertinent to make a brief reference to the relevant provisions of law having a bearing on this case. Chapter XXIX of the Code of Criminal Procedure, 1973 (hereinafter called 'Code') comprising Sections 372-394 deals with 'Appeals'. For the purpose of our examination, the relevant provisions are Sections 384- 386. Section 384, which deals with summary dismissal of appeals, enables the Appellate Court to summarily dismiss an appeal \"if upon examining the petition of appeal and copy of the judgment received\", it \"considers that there is no sufficient ground for interfering\". Section 385 provides that \"if the Appellate Court does not dismiss the appeal summarily\", it \"shall cause notice of the time and place at which such appeal will be heard to be given\" to the parties involved. It further provides that thereafter, the Appellate Court shall \"send for the record of the case if such record is not already in Court\" and \"hear the parties\". The relevant part of Section 386 provides that \"after perusing such record and hearing the appellants or his pleader, if he appears, and the Public Prosecutor, if he appears\", the Appellate Court \"may, if it considers that there is no sufficient ground for interference, dismiss the appeal\".\n5. From the facts of the present case, it is clear that when the matter came up before the High Court, it admitted the appeal and, following the procedure laid down in Section 385 of the Code, issued notice to the State. In the circumstances, it is clear that Section 384 of the Code, which enables the High Court to summarily dismiss an appeal, is not applicable to the present case. Since the High Court proceeded to dismiss the appeal when it was next listed for hearing, it is clear that the provision applicable to these facts is Section 386 of the Code, though the order of the High Court does not mention the provision. From the order of the High Court, it is clear that upon finding the appellants and their pleader absent, it dismissed the appeal for non- prosecution without going into the merits of the case.\n6. The law relating to the central issue in this case has been authoritatively laid down by a Division Bench of this Court in Shyam Deo's case. Though the case was decided in the context of Section 423 of the Code of Criminal Procedure, 1898, (hereinafter called the Old Code) since that provision materially corresponds to the present Section 386, the interpretation laid down in that case continues to be sound. The facts of that case were similar, in that, while hearing an appeal against a conviction, the concerned High Court, finding the appellants' pleader absent, perused the judgment under appeal, and, finding no merit in the case, dismissed the appeal. This Court took the view that once the appeal was admitted, it was the duty of the Court to peruse the record of the case before dismissing it. The Court considered this to be a mandatory requirement and, since, in its view, the record of a case is not confined only to the judgment under appeal, it held that the order of the High Court was not in conformity with the requirement of the provision and ordered it to be set aside.\n7. In Ram Naresh Yadav's case, a Division Bench of this Court was faced with a case where the High Court had confirmed an order for conviction and sentence without hearing the appellants. Against these facts, the Court took the view that, in criminal matters, convicts must be heard before their matters are decided on merits. It, therefore, set aside the order of the High Court and remanded the matter to it for \"passing an appropriate order in accordance law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf\".\n8. The Division Bench of this Court which referred this matter to us was of the view that these decisions, rendered by separate two-judge benches of this Court, are in conflict with each other. Before we decide on this issue, we must closely examine the scheme envisaged by the Code in this regard. The relevant portions of Sections 385 and 386 of the Code are extracted as under:\n\"385. Procedure for hearing appeals not dismissed summarily -- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given -\n(i) to the appellant or his pleader;\n(ii) .... .... ....\n(iii) .... .... ....\n(iv) .... .... ....\n(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:\nProvided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.\n(3) .... .... ....\n386. Powers of the Appellate Court -- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may --\nxxxx xxxx xxxx \"\n9. Section 385(2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it 'shall', after issuing notice as required by subsection (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that 'after perusing such record' the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard.\n10. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing?\n11. In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the Old Code (the corresponding provisions are Sections 385-386 of the present Code), this Court in paragraph 19 of the judgment held as under:\n\"The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the Appeal; but that disposal must he after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether tne appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.\"\n(Emphasis added)\n12. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed.\n13. In Ram Naresh Yadav's case, this Court, without making a specific reference to Section 386 or any other provision of the Code and without noticing the ratio of Shyam Deo's case concluded thus:\n\"It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if conunsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants.\"\n14. What then is the area of conflict between the two decisions of this Court? In Shyam Deo's case, this Court ruled that once the Appellate Court has admitted the appeal to be heard on merits, it cannot dismiss the appeal for non- prosecution for non-appearance of the appellant or his counsel, but must dispose of the appeal on merits after examining the record of the case. It next held that if the appellant or his counsel is absent, the Appellate Court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. In Ram Naresh Yadav's case, the Court did not analyze the relevant provisions of the Code nor did it notice the view taken in Shyam Deo's case but held that if the appellant's counsel is absent, the proper course would be to dismiss the appeal for nonprosecution but not on merits; it can be disposed of on merits only after hearing the appellant or his counsel or after appointing another counsel at State cost to argue the case on behalf of the accused.\n15. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo's case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.\n16. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav's case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.\n17. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation is there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.\n18. In view of the position in law explained above, we are of the view that the High Court erred in dismissing the appeal for non-prosecution simplicitor without examining the merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal on merits in the light of this judgment. The appeal will stand allowed accordingly.\nAppeal allowed\n"}
+{"id": "SstzyshA6P", "title": "", "text": "Rama and Others v State of Rajasthan\nSupreme Court of India\n\n5 April 2002\nAppeal (crl.) 447 of 2002\nThe Judgment was delivered by : B. N. Agrawal, J.\nLeave granted.\n1. Judgment impugned in this appeal has been rendered by Jodhpur Bench of the Rajasthan High Court whereby criminal appeal preferred by the appellants has been dismissed confirming the convictions and sentences awarded against the appellants by the trial court under Sections 326 and 325 read with section 34 of the Indian Penal Code.\n2. The said criminal appeal was filed in the year 1987 and duly admitted. The same was placed for hearing in the year 2001 and after hearing the parties, the High Court passed an order in four pages.\n3. The impugned judgment, runs into seven paragraphs and after referring to the prosecution case and defence version , the Court has disposed of the appeal in two paragraphs which run thus:-\n\"After re-appreciation of the evidence and re-scrutiny of the record, I find that there is no error apparent in the finding recorded by the learned Judge, therefore, there is no reason to interfere in the order of conviction passed by the learned Judge.\nIn the result, therefore, the present appeal is dismissed.\"\n4. The impugned judgment has been challenged on the sole ground that the High Court has not disposed of the appeal in the manner postulated under law inasmuch as it does not appear from the impugned judgment as to how many witnesses were examined on behalf of the prosecution and on what point.\n5. The High Court has not even referred to any evidence much less considered the same.\n6. In our view, it is a novel method of disposal of criminal appeal against conviction by simply saying that after re-appreciation of the evidence and re-scrutiny of the records, the Court did not find any error apparent in the finding of the trial court even without reappraising the evidence.\n7. In our view, the procedure adopted by the High Court is unknown to law.\n8. It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing.\n9. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law. Thus, we are of the view that on this ground alone, the impugned order is fit to be set aside and the matter remitted to the High Court.\n10. Accordingly, the appeal is allowed, impugned order passed by the High Court is set aside and the matter is remitted to that Court for disposal of the appeal in accordance with law after giving opportunity of hearing to the parties.\nAppeal allowed\n"}
+{"id": "xavU07zUHL", "title": "", "text": "Shantistar Builders v Narayan Khimalal Gotame & Ors.\nSupreme Court of India\n\n31 January 1990\nC.A. No.2599 of 1989\nThe Order of the Court was as follows :\n1. This Court by its judgment in M/s. Shantistar Builders v. Narayan Khimalal Gotame & Ors., [(1990) 1 SCC 520 1990 Indlaw SC 683] while disposing of the matter directed in paragraphs 21 and 22 the State Government to constitute a committee for monitoring allotment of the houses to the weaker sections, as per the scheme sanctioned while exempting the urban land under s. 21 of the Urban Land (Ceiling & Regulation) Act, 1976 (for short \"the Act\"). One of the members of the committee suggested was Additional District Judge. The Bombay High Court was requested to ensure that an Additional District Judge be made available for enforcing the schemes in every agglomeration, so that the Committee constituted by the State Government would effectively implement the schemes. This Court also impressed upon every Committee to ensure fulfillment of the laudable purpose of providing a home to the poor homeless to effectuate its commitment to the constitutional goal and that every effort should be made by it to ensure that the builder does not succeed in frustrating the purpose.\nThe State Government should suitably modify its scheme in the light of the judgment rendered in Shantistar Builders' case and recirculate the same to all concerned within four weeks from the date of the judgment.\n2. The State had filed an affidavit on March 30, 1990, seeking certain modifications or clarifications of the order.\nOne of the modifications sought was that under the Act, the Deputy Commissioner is competent authority and an appeal was provided under the Act, except for Bombay and Pune, the Additional Commissioner. For Pune and Bombay, Commissioner would deal with the same. If the Additional District Judge was to supervise the functioning of the allotment as per the scheme sanctioned under s. 21 of the Act, it would be inconvenient to the appellant authority to consider the scheme under the Act.\n3. The entire thinking of the Government is wholly misconceived. The Committee had nothing to do with the provisions of the Urban Ceiling Act. After the exemption under s.20 or 21 is granted, the building is required to implement the scheme in terms of the sanction made by the Government for construction of buildings by the builders and allotment to weaker section people. This Court intended to ensure that the builders would abide by the guidelines laid down by this Court in the light of the judgment. The Committee would supervise the allotment of the houses to the homeless weaker section people in the light of the guidelines laid down therein.\nThe State Government was also directed to recirculate the revised schemes in the light of the above judgment. In the circumstances, the question of the Commissioner sitting in an appeal over the working of the Committee does not arise.\n4. It is submitted that the taking away of the discretionary power of the Government in allotment of the houses is not justified.\nWe do not propose to modify our earlier direction.The Government is directed to comply with the constitution of the Committee within 30 days from the date of the receipt of this order, since the same has already been delayed for more than five years from the date of the judgment constituting the committee.\n5. Rest of the matters are adjourned to next week.\nOrder accordingly\n"}
+{"id": "ZESFqZ8pIx", "title": "", "text": "Prabhakaran Nair, Etc. v State Of Tamil Nadu And Ors.\nSupreme Court of India\n\n3 September 1987\nWrit Petition No. 506 of 1986\nThe Judgment was delivered by: Sabyasachi Mukharji, J.\n1.  There is 'much ado about nothing' about these cases. These petitions seek to challenge the vires of s. 14(1)(b) and s. 16(2) as well as incidentally s. 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called 'the Tamil Nadu Rent Act') on the ground of being arbitrary, discriminatory and unreasonable. Different petitions deal with different facts. It is not necessary to set these out exhaustively but it would be appropriate to deal with the facts of Writ Petition No. 506 of 1986 as a typical one in order to appreciate the points in issue. In Writ Petition No. 506 of 1986, the respondent-landlord on or about 21st of March, 1978 after purchasing the premises No.95, Thyagaraja Road, T. Nagar, Madras from the erstwhile owner, filed an eviction petition in the court of Small Causes, Madras for eviction of the petitioner herein from the premises where the petitioner had been carrying on a hotel business serving meals etc. for four decades. The grounds in the eviction petition were non-payment of rent under sec- tion 10(2)(1) of the Tamil Nadu Rent Act, unlawful sub- letting u/s. 10(2)(ii)(a), causing damages to the premises u/s. 10(2)(iii) and also for the purposes of demolition and reconstruction under s. 14(1)(b).\n2.  The learned Judge of the trial court ordered eviction under s. 14(1)(b) of the Tamil Nadu Rent Act only for demolition and reconstruction and dismissed the other grounds, and that is the only ground with which we are concerned in this appeal. On 25th of February, 1981 the Appellate Court dismissed the petitioner's appeal by saying that the landlords were rich people and capable of demolition and reconstruction in order to put the premises to a more profitable use by putting up their own showroom. On September 30, 1982 the High Court dismissed the civil revision petition of the petitioner and granted time till 31st of January, 1983 for the petitioner to vacate the premises in question. The petitioner thereafter filed a special leave petition against the judgment and order of the High Court in this Court.\n3. This Court initially ordered show cause notice and also granted ad interim ex-parte stay of dispossession. On 29th January, 1983 the City Civil Court, Madras granted interim injunction restraining the respondents from demolishing the building till the disposal of the application in the suit filed by the petitioner against the erstwhile owner and the present landlords for specific performance of an agreement to sell the premises to the petitioner. According to the petitioner the injunction was confirmed and was still continuing and the said suit for specific performance was also pending in the City Civil Court, Madras.\n4.  On 17th of February, 1986 this Court dismissed the special leave petition after notice but directed that the decree for eviction would not be executed till 17.11.86. It was observed by this Court that the petitioner would be at liberty to file a writ petition u/art. 32 of the Constitution, if so advised, challenging the validity of s. 14(1)(b) of the Tamil Nadu Rent Act as mentioned on behalf of the petitioner. The petitioner filed this writ petition challenging the validity of s. 14(1)(b) and s. 16(2) of the Tamil Nadu Rent Act on the ground that these were arbitrary, discriminatory, unreasonable and unconstitutional. The petitioner contends in this writ petition that consequently the eviction order passed under s. 14(1)(b) and confirmed in appeal is also illegal. The aforesaid several of the writ petitions are on this issue.\n5.  The main ground of attack on this aspect seems to be that while other Rent Acts in case of eviction for demolition permit and direct that after reconstruction the tenant should be inducted as tenant or given the opportunity to have the same space in the reconstructed building, in the instant Act no such option is given and no such obligation imposed upon the landlord and as such the impugned provision is illegal as being discriminatory against the tenant. In order to examine the various aspects on this contention, it will be necessary to examine in detail the relevant provisions of the Act. It should be borne in mind, however, that this was an Act passed to amend and consolidate the law relating to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants in the State of Tamil Nadu. S. 14 of the Tamil Nadu Rent Act states as follows:-\n\" 14. Recovery of possession by landlord for repairs or for reconstruction.\n(1) Notwithstanding anything contained in this Act, but subject to the provisions of ss. 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied-\n(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or\n(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.\n(2) No order directing the tenant to deliver possession of the building under this section shall be passed-\n(a) on the ground specified in cl. (a) of subsection (1), unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub-s. (1) for his re-occupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow; or\n(b) on the ground specified in cl. (b) of subsection (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow.\n(3) Nothing contained in this section shall entitle the landlord who has recovered possession of the building for repairs to convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the Controller at the time of passing an order under subs. (1).\n(4) Notwithstanding an order passed by the Controller under cl. (a) of sub-s. (1) directing the tenant to deliver possession of the building, such tenant shall be deemed to continue to be the tenant, but the landlord shall not be entitled to any rent for the period commencing on the date of delivery of possession of the building by the tenant to the landlord and ending with the date on which the building is offered to the tenant by the landlord in pursuance of the undertaking under cl. (a) of subs. (2).\n(5) Nothing in this section shall entitle any landlord of a building in respect of which the Government shall be deemed to be the tenant to make any application under this section\". S. 15 empowers the tenant to re-occupy after repairs. There is no such provision in case of eviction on the ground of bona fide need for demolition and reconstruction. This is one of the grounds of challenge.\"\n6.  S. 16 deals with the right of the tenant to occupy the building if it is not demolished. Sub-s. (2) which was amended and introduced by Act 23 of 1973 dealing with the reconstructed building reads as follows:\n\"16(2) Where in pursuance of an order passed by the Controller under cl. (b) of sub-s. (1) of section 14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construction of such new building is completed and notified to the local authority concerned.\"\n7.  In this connection s. 30 which exempts certain buildings may be referred to and sub-section (i) is important. It reads as follows:\n\"30. Exemption in the case of certain buildings- Nothing contained in this Act shall apply to-\n(i) any building for a period of five years from the date on which the construction is completed and notified to local authority concerned; or\n(ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds (four hundred rupees).\"\n8.  In this appeal we are not concerned with cl. (ii) of s. 30 the challenge to whose validity has been accepted by this Court in Rattan Arya and others v. State of Tamil Nadu and another, [1986] 3 S.C.C. 3851986 Indlaw SC 417. S. 30(ii) of the Tamil Nadu Rent Act has been struck down as violative of Art. 14.\n9.  Various submissions were urged in support of the several writ petitions. Sree Raju Ramachandran contended that in most of the Indian statutes dealing with eviction of tenants, there are provisions of re-induction of the tenant where the eviction is obtained on the ground of reconstruction after the premises in question is reconstructed. It was submitted that in those statutes, there is obligation on the landlord to reconstruct within a certain period and the corresponding right on the tenant evicted to be re-inducted at the market rate to be fixed by the Rent Controller or by such authority as the Court may direct.\n10.  Our attention was drawn to several statutes, namely, Maharashtra, Karnataka, Kerala, West Bengal and numerous others where there are provisions for re-induction of other tenants in the premises after reconstruction. Most of the provisions of other statutes provide for such induction while the Tamil Nadu Rent Act does not. On this ground it was submitted, that firstly, that this is violative of Art. 14 of the Constitution. It was further submitted that s. 16(2) of the Tamil Nadu Rent Act says that where in pursuance of an order of eviction passed by the Rent Controller under s. 14(1)(b) any building is totally demolished and a new building is erected in its place, all the provisions of the Act shall cease to apply to such new building for a period of five years.\n11. It was submitted that neither the old tenant nor any new tenant was thus entitled to protection of the Rent Control Act after reconstruction. The old tenant cannot also get into the new building as of right. This discrimination against the tenants in Tamil Nadu is invidious and violates Art. 14 of the Constitution. Secondly, it was submitted that if in case of repairs which also dislodges the tenants for limited period, the tenants have a right to get into the premises after repairs under the Tamil Nadu Rent Act, it is unreasonable that tenants should not have the same right in case of reconstruction. It was urged that once the building is ready for occupation it should make no difference whether the readiness is after repairs or after construction. It was urged that in both cases the tenants go out during the period of building work, and they should equally come back into the building after repairs or reconstruction. It was submitted on this ground also that not enjoining re- induction of the evicted tenant after reconstruction is discriminatory and unconstitutional.\n12. The classification of buildings reconstructed differently from the buildings repaired is not valid, as it has no relation to the object or purpose of the Act. Furthermore, that all the tenants belong to one class and they could not be treated differently. On this aspect it was further submitted that the provisions of re-induction in most of the Rent Acts re- presented the standard of reasonableness in the landlord and the tenant law and the philosophy of Rent Control Legislation. It re-presented the national consensus of reasonable standard. Therefore, any provision which according to learned counsel appearing for the different parties in the writ petitions, was in variance with that standard was unreasonable and as such violative of Art. 14 of the Constitution. In aid of this submission various contentions were urged. We are, however, unable to accept this submission.\n13.  Learned Attorney General appearing for the respondents submitted before us that the main provision of s. 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he was satisfied that the building was bona fide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished might pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. In the case of an application under s. 14(1)(a) of the Tamil Nadu Rent Act namely bona fide requirement for carrying out repairs it cannot be carried out without the building being vacated and it has to be done within three months to enable the tenant to re-occupy the building. It has further to be borne in mind that in the case of demolition and re-construction, the landlord has to undertake that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and the entire demolition work shall be completed before the expiry of three months from the date he recovers possession of the entire building.\n14. See in this connection the provisions of s. 16 of the said Act. The demolition has therefore to be completed within three months. In the case of massive buildings demolition can overtake six months or even a year and hence the provision that for reasons to be recorded in writing, the Controller may allow such further period. It has further to be borne in mind that after such demolition the re-construction of a new building on the same site is bound to take time and such time depends upon the nature of the building to be erected and it might take years it was argued. During that period a tenant was bound to have found some other suitable alternative accommodation; on the other hand in the case of a building for repairs, a tenant may arrange for temporary accommodation for a few months and return back to the building. Therefore provision for reinduction in the case of repairs and absence of such a provision in the case of demolition and reconstruction is quite understandable and rational.\n15.  It has to be borne in mind that it is not practicable and would be anamolous to expect a landlord to take back a tenant after a long lapse of time during which time the tenant must necessarily have found some suitable accommodation elsewhere. This is the true purpose behind s. 14(1)(b) read with s. 14(2)(b). In the aforesaid view of the matter, we are unable to accept the submission that in providing for re-induction of the tenant in case of repairs and not providing for such re-induction in case of reconstruction, there is any unreasonable and irrational classification without any basis.\n16.  The other submission as noted above was that in most of the Rent Acts, there was provision for re-induction of the tenants but there was no such provision in case of reconstruction in the Tamil Nadu Rent Act. In The State of Madhya Pradesh v. G.C. Mandawar, [1955] 1 S.C.R. 599 1954 Indlaw SC 40, a Constitution Bench of this Court observed that Art. 14 of the Constitution does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different, Art. 14 can have no application' it was observed.\n17.  It is necessary now to deal with the submission that the section is unreasonable. For this, one has to bear in mind the public purpose behind the legislation. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was passed in 1960. A similar enactment which was in operation from 1949 to 1960 did not contain any provision like ss. 14 to 16 providing for eviction of the tenant on the ground of demolition and reconstruction.\n18.  In 1949, however, the enactment contained a provision empowering the Government to exempt any building or class of buildings from all or any of the provisions of the Act. When the landlords desired to evict tenants on the ground of demolition and re-construction, they resorted to the remedy of moving the Government by an application for exemption u/s. 13 of the 1949 Act.\n19. The Government by notification used to exempt any building or class of buildings from all or any of the provisions of the Act. In this connection reference may be made to the decision in S. Kannappa Pillai and another v. B. Venkatarathnam, (78 Law Weekly 363). The Government in that case when passing the order of exemption used to impose condition that the landlord should complete the re-construction within four months from the date on which the premises were vacated by the tenants and that he should take back the old tenants into the reconstructed building at the rate demanded by the landlord subject to the fixation of fair rent. However, in view of the tenants' conduct in resorting to writ proceedings challenging the order of exemption and in filing suits and having delayed the process of demolition and reconstruction, the Court in the exercise of discretion refused to extend the benefit of the condition as to re- induction in favour of the tenants. The further remedy was by writ proceedings before the High Court by the landlord or the tenant who felt aggrieved as the case may be.\n20.  It was submitted on behalf of the respondents by the learned Attorney General that the Legislature in view of the experience gained from 1949 to 1960 enacted ss. 14 to 16 of the Act and which were introduced in the Act of 1960.\n21.  It was urged that the 1960 Act had improved the position. It had provided as a ground of eviction of the tenant the requirement of the landlord for demolition and re-construction of the building leaving it to a judicial authority viz. Rent Controller to decide the matter with one statutory right of appeal and a further right of revision to the District Court or the High Court as the case may be. It was on this ground urged that leaving the matter to judicial adjudication as to the ground for eviction, it cannot be held to be arbitrary, unreasonable or unjust. This point has to be judged keeping in view the main purpose of the Act in question and the relevant submissions on this aspect.\n22.  It may be borne in mind that historically the Constitutionality of s. 13 of the Act of 1949 was upheld on the touchstone of Art. 14 both by the Madras High Court and on appeal by this Court in P.J. Irani v. The State of Madras, [1962] 2 S.C.R. 169 1961 Indlaw SC 69. It was held that s. 13 of the Act did not violate Art. 14 and was not unconstitutional. Enough guidance, according to the judgment of the majority of learned judges, was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the government. It was observed that the power u/s. 13 of the Act was to be exercised in cases where the protection given by the Act caused great hardship to the landlord or was the subject of abuse by the tenants. It was held by Sinha, C.J., Ayyangar and Mudholkar, JJ. that s. 13 was ultra vires and void. An order made u/s. 13 was subject to judicial review on the grounds that (a) it was discriminatory, (b) it was made on grounds which were not germane or relevant to the policy and purpose of the Act, and (c) it was made on grounds which were mala fide. While S.K. Das and A.K. Sarkar, JJ. emphasised that the order passed by the government u/s. 13 was a competent and legal order. All that the court had to see was whether the power had been used for any extraneous purpose, i.e. not for achieving the object for which the power was granted.\n23.  The Act of 1960 contains a corresponding provision for exemption in s. 29 of the Act which corresponds to s. 13 of the Act of 1949 was also upheld by this Court in S. Kandaswamy Chettiar v. State of Tamil Nadu and another, [1985] 2 SCR 398 1984 Indlaw SC 354. Dealing with s. 29 of the Act this Court observed that the rationale behind the conferral of such power to grant exemptions or to make exceptions was that an inflexible application of the provisions of the Act might under some circumstances result in unnecessary hardship entirely disproportionate to the good which will result from a literal enforcement of the Act and also the practical impossibility of anticipating in advance such hardship to such exceptional cases. In the matter of beneficial legislations also there were bound to be cases in which an inflexible application of the provisions of the enactment might result in unnecessary and undue hardship not contemplated by the legislature. The power to grant exemption under s. 29 of the Act, therefore, has been conferred not for making any discrimination between tenants and tenants but to avoid undue hardship or abuse of the beneficial provisions that might result from uniform application of such provisions to cases which deserve different treatment.\n24. The decision reiterated that the Tamil Nadu Rent Act was a piece of beneficial legislation intended to remedy the two evils of rackrenting (exaction of exorbitant rents) and unreasonable eviction generated by a large scale of influx of population to big cities and urban areas in the post Second World War period creating acute shortage of accommodation in such areas and the enactment avowedly protects the rights of tenants in occupation of buildings in such areas from being charged unreasonable rents and from being unreasonably evicted therefrom. In that view of the matter it had made a rational classification of buildings belonging to government and buildings belonging to religious, charitable, educational and other public institutions and the different treatment accorded to such buildings u/s. 10(3)(b) of the Act.\n25.  The scope of this Act was discussed by this Court in Raval and Co. v. K.C. Ramachandran & Ors., [1974] 2 S.C.R. 629 1973 Indlaw SC 283, where the majority of the court at pages 635 to 636 observed:-\n\"All these show that the Madras Legislature had applied its mind to the problem of housing and control of rents and provided a scheme of its own. It did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenants. It wanted it to be fair both to the landlord as well as the tenant. Apparently it realised that the pegging of the rents at the 1940 rates had discouraged building construction activity which ultimately is likely to affect every body and therefore in order to encourage new constructions exempted them altogether from the provisions of the Act. It did not proceed on the basis that all tenants belonged to the weaker section of the community and needed protection and that all landlords belonged to the better off classes. It confined the protection of the Act to the weaker section paying rents below Rs.250. It is clear, therefore, that the Madras Legislature deliberately proceeded on the basis that fair rent was to be fixed which was to be fair both to the landlords as well as to the tenants and that only the poorer classes of tenants needed protection. The facile assumption on the basis of which an argument was advanced before this Court that all Rent Acts are intended for the protection of tenants and, therefore, this Act also should be held to be intended only for the protection of tenants breaks down when the provisions of the Act are examined in detail. The provision that both the tenant as well as the landlord can apply for fixation of a fair rent would become meaningless if fixation of fair rent can only be downwards from the contracted rent and the contract rent was not to be increased. Of course, it has happened over the last few years that rents have increased enormously and that is why it is argued on behalf of the tenants that the contract rents should not be changed. If we could contemplate a situation where rents and prices are coming down this argument will break down. It is a realisation of the fact that prices and rents have enormously increased and therefore if the rents are pegged at 1940 rates there would be no new construction and the community as a whole would suffer that led the Madras Legislature to exempt new buildings from the scope of the Act. It realised apparently how dangerous was the feeling that only \"fools build houses for wise men to live in\". At the time the 1960 Act was passed the Madras Legislature had before it the precedent of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956. That Act provides for fixation of fair rent. It also provides that the contract rent, if lower, will be payable during the contract period. Even if the contract rent is higher only the fair rent will be payable. After the contract period is over only the fair rent is payable. The Madras Legislature having this Act in mind still made only the fair rent payable and not the contract rent if it happens to be lower. It is clear, therefore, that the fair rent under the present Act is payable during the contract period as well as after the expiry of the contract period.\"\n26.  The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power. The Act balances the scales and regulates the rights of the parties fairly and cannot be construed only in favour of the tenant.\n27.  In Murlidhar Agarwal and another v. State of U.P. and others, [1975] 1 S.C.R. 5751974 Indlaw SC 264 this Court had occasion to deal with this matter. In that case, powers of High Court to interfere with revisional orders passed by State Government under section 7F of U.P. Temporary Control of Rent and Eviction Act, 1947 were challenged. The Court was of the view that if a provision was enacted for the benefit of a person or class of persons, there was nothing which precluded him or them from contracting to waive the benefit, provided that no question of public policy was involved. In doing so, the question arose what was the 'public policy' involved in the said Rent Act. There can be no doubt about the policy of the law, namely, the protection of a weaker class in the community from harassment of frivolous suits. But the question is, is there a public policy behind it which precludes a tenant from waiving it? Mathew, J. reiterated that public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. The Rent Act, however, balances both the sides, the landlord and the tenant.\n28.  The main provision of S. 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he is satisfied that the building is bonafide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished may pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.\n29.  S. 16 provides for the tenant to occupy the building if it is not demolished in certain contingencies. The scheme of the section was very carefully analysed in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha, [1962] 2 S.C.R. 159 1961 Indlaw SC 472.\n30.  In Metalware and Co. etc. v. Bansilal Sharma and Ors. etc., [1979] 3 S.C.R. 11071979 Indlaw SC 225 this Court emphasised that the phrase used in s. 14(1)(b) of the Act was \"the building was bona fide required by the landlord\" for the immediate purpose of demolition and reconstruction and the same clearly referred to the bona fide requirement of the landlord. This Court emphasised that the requirement in terms was not that the building should need immediate demolition and reconstruction. The state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would not be a totally irrelevant factor while determining \"the bona fide requirement of the landlord.\" This Court emphasised that if the Rent Controller had to be satisfied about the bona fide requirement of the landlord which meant genuineness of his claim in that behalf the Rent Controller would have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under s. 14(1)(b).\n31. The fact that a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself might not be sufficient to establish his bona fide requirement if the building happened to be a very recent construction in a perfectly sound condition and its situation might prevent its being put to a more profitable use after reconstruction. The Rent Controller has thus to take into account the totality of the circumstances and the factors referred to in the judgment by lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for re-induction of the evicted tenant into the new construction. Reference was made to the decision of this Court in Neta Ram v. Jiwan Lal, [1962] Suppl. 2 S.C.R. 623 1962 Indlaw SC 123. There must be bona fide need of the landlord on all the conditions required to be fulfilled. That being the scheme of the section, it cannot be said, in our opinion, that the section was arbitrary and excessive powers were given to the landlords. Absence of provision for re-induction does not ipso facto make the provisions of the Act unfair or make the Act self defeating.\n32.  It has been borne in mind that the provisions of the Act imposed restrictions on the landlord's right under the common law or the Transfer of Property Act to evict the tenant after termination of his tenancy. The rationale of these restrictions on the landlord's rights is the acute shortage of accommodation and the consequent need to give protection to the tenants against unrestricted eviction. The nature, the form and the extent of the restrictions to be imposed on the landlord's right and the consequent extent of protection to be given to the tenants is a matter of legislative policy and judgment. It is inevitably bound to vary from one State to another depending on local and peculiar conditions prevailing in the State and the individual State's appreciation of the needs and problems of its people. When we are confronted with the problem of a legislation being violative of Article 14, we are not concerned with the wisdom or lack of legislative enactment but we are concerned with the illegality of the legislation. There may be more than one view about the appropriateness or effectiveness or extent of the restrictions. There may be also more than one view about the relaxation of the restrictions on the landlord's right of eviction. This fact is reflected in the different provisions made in different Acts about the grounds for eviction. For example, in case of Assam, Meghalaya, Andhra Pradesh, Delhi, Haryana, Orissa, Tripura, East Punjab, Madhya Pradesh, Tamil Nadu, Kerala, Mysore, Himachal Pradesh and Pondicherry, no particular duration for arrears of rent is prescribed, which would entitle a landlord to maintain an action for ejectment of his tenant.\nHowever, in other cases a certain period is prescribed. For instance, two months in Bihar, West Bengal and Jammu and Kashmir, three months in Goa and Tripura, four months in Uttar Pradesh, six months in Bombay and Rajasthan. Again some Rent Acts require that before an action for ejectment on the ground of arrears is instituted, a notice demanding rent should be served on the tenant-for example- Bombay, Delhi, Kerala, Tripura, Jammu and Kashmir, Madhya Pradesh and U.P. Rent Acts. In such cases the tenant is given one chance to pay up the arrears. Again different Rent Acts provide different facts and circumstances on the basis of which premises could be recovered on the ground of bona fide personal requirement. Generally the bona fide requirement extends both to residential as well as commercial premises. However, the Delhi Rent Control Act restricts the right on account of the bona fide need of the landlord's right to premises let for residential use only.\nFurther, Bihar, Bombay, Goa, Jammu and Kashmir, Karnataka, Tamil Nadu, U.P. and West Bengal Rent Acts provide for partial eviction. But there is no such provision in the other Acts. It is obvious from the above that there can be no fixed and inflexible criteria or grounds governing imposition of restrictions on the landlord's right or for relaxation of those restrictions in certain cases. Ultimately it is a matter of legislative policy and judgment.\nCourts are not concerned with the unwisdom of legislation.\n\"In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review.\".\n33. See in this connection the observations of Krishna Iyer, J. in Murthy Match Works, etc. etc. v. The Asstt. Collector of Central Excise, etc., [1974] 3 S.C.R. 121 1974 Indlaw SC 509. This Court approved the above passage from the American Jurisprudence and emphasised that in a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. It is important to bear in mind the Constitutional command for a state to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. Therefore, a large latitude is allowed to the States for classification upon any reasonable basis. See also in this connection the observations of this Court in Re The Special Courts Bill, 1978, [1979] 2 S.C.R. 476 1978 Indlaw SC 352 where Chandrachud, C.J.speaking for the Court at pages 534to537 of the report laid down the propositions guiding Art. 14 and emphasised that the classification need not be constituted by an exact or scientific exclusion nor insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification therefore, is justified if it is not palpably arbitrary. We also in view of the different provisions we have discussed bear in mind the fact that there is no such consensus among the different States about the right of re-induction of tenant in case of eviction required for demolition. It will depend on the particular State and, appreciation of the need and problem at a particular point of time by that State concerned. The purpose underlying s. 14(1)(b) read with s. 16(2) of the Tamil Nadu Rent Act is to remove or mitigate the disinclination on the part of landlords to expend moneys for demolition of dilapidated buildings and reconstruct new buildings in their places. It is a matter of which judicial notice can be taken that the return from old and dilapidated buildings is very meagre and in several cases such buildings prove uneconomic for the landlords with the result that the condition of the building deteriorates and there are even collapses of such buildings. It is for this purpose that the landlord is given by s. 14(1)(b) read with s. 16 an incentive in the form of exemption from the provisions of the Rent Act in respect of reconstructed building for the limited and short duration of five years. The policy under s. 14(1)(b) read with s. 16 is not in essence different from the policy adopted by different States of giving exemption for a limited duration to newly constructed buildings.\n34. These provisions, namely, exemption of new buildings from the provisions of the Rent Act for a period of five years or ten years has been upheld as constitutional. See in this connection the observations of this Court in the case of Punjab Tin Supply Co., Chandigarh & Ors. v. The Central Govt. & Ors., [1984] 1 SCC 206 1983 Indlaw SC 259 and Mohinder Kumar v. State of Haryana and Anr, [1985] 4 S.C.C. 221 at pages 226-2271985 Indlaw SC 262. There the Court emphasised that it is entirely for the Legislature to decide whether any measures, and if so, what measures are to be adopted for remedying the situation and for ameliorating the hardship of tenants. The Legislature may very well come to a conclusion that it is the shortage of buildings which has resulted in scarcity of accommodation and has created a situation where the demand for accommodation is far in excess of the requisite supply, and, it is because of such acute scarcity of accommodation the landlords are in a position to exploit the situation to the serious detriment of the tenants.\nThe Court observed at pages 226to227 of the report as under:\n\"The Legislature in its wisdom may properly consider that in effecting an improvement of the situation and for mitigating the hardship of the tenanted class caused mainly due to shortage of buildings, it will be proper to encourage construction of new buildings, as construction of new buildings will provide more accommodation, easing the situation to a large extent, and will ultimately result in benefiting the tenants. As in view of the rigours of Rent Control Legislation, persons with means may not be inclined to invest in construction of new houses, the Legislature to attract investment in construction of new houses may consider it reasonable to provide for adequate incentives so that new constructions may come up. It is an elementary law of economics that anybody who wants to invest his money in any venture will expect a fair return on the investment made. As acute scarcity of accommodation is to an extent responsible for the landlord and tenant problem, a measure adopted by the Legislature for seeking to meet the situation by encouraging the construction of new buildings for the purpose of mitigating the hardship of tenants must be considered to be a step in the right direction. The provision for exemption from the operation of the Rent Control Legislation by way of incentive to persons with means to construct new houses has been made in S. 1(3) of the Act by the Legislature in the legitimate hope that construction of new buildings will ultimately result in mitigation of the hardship of the tenants. Such incentive has a clear nexus with the object to be achieved and cannot be considered to be unreasonable or arbitrary. Any such incentive offered for the purpose of construction of new buildings with the object of easing the situation of scarcity of accommodation for ameliorating the conditions of the tenants, cannot be said to be unreasonable, provided the nature and character of the incentive and the measure of exemption allowed are not otherwise unreasonable and arbitrary. The exemption to be allowed must be for a reasonable and a definite period. An exemption for an indefinite period or a period which in the facts and circumstances of any particular case may be considered to be unduly long, may be held to be arbitrary. The exemption must necessarily be effective from a particular date and must be with the object of promoting new constructions. With the commencement of the Act, the provisions of the Rent Act with all the restrictions and rigours become effective. Buildings which have been constructed before the commencement of the Act were already there and the question of any kind of impetus or incentive to such buildings does not arise. The Legislature, therefore, very appropriately allowed the benefit of the exemption to the buildings, the construction of which commenced or was completed on or after the commencement of the Act. This exemption in respect of buildings coming up or to come up on or after the date of commencement of the Act is likely to serve the purpose of encouraging new buildings to be constructed. There is therefore nothing arbitrary or unreasonable in fixing the date of commencement of the Act from which the exemption is to be operative.\"\n35.  S. 14(1)(b) has sufficient inbuilt guidelines. The requirements to be satisfied before initiating action under this provision have been judicially laid down by the Madras High Court by Anantanarayanan, J. as he then was, in Mehsin Bhai v. Hale and company, G. T. Madras, [1964] 2 Madras Law Journal 147. Anantanarayanan, J. observed at page 147 as follows:\n\" What the section really required is that the landlord must satisfy the Court that the building was bona fide required by him, for the immediate purpose of demolition. I am totally unable to see how the present state of the building, and the extent to which it could stand without immediate demolition and reconstruction, in the future, are not relevant considerations in assessing the bona fides of the landlord. On the one hand, landlords may bona fide require such buildings, particularly old buildings, in their own interest, for demolition and reconstruction. On the other hand, it is equally possible that the mere fact that the building is old, is taken advantage of by the landlord to put forward such pretext his real object being ulterior, and not bona fide for the purpose of reconstruction. The Courts have to apply several criteria, and to judge upon the totality of the facts. But the Courts cannot exclude the possibility that the ancient or relatively old character of the building which may nevertheless be in quite a good and sound condition, is being taken advantage of by a landlord in order to make such an application with an ulterior purpose, which purpose might be, for instance, to obtain far more advantageous terms of rent in the future. What the section really contemplates is a bona fide requirement; that necessarily implied that it is in the interests of the landlord to demolish and reconstruct the building, and that the fact that the building is old is not merely a pretext for advancing the application, with the object of evicting the tenant, and of obtaining higher rentals.\"\n36.  This Court also emphasised this aspect in the decision of Metalware & Co. etc. v. Bansilal Sharma and others etc., [1979] 3 S.C.R. 1107 at pages 1117-11181979 Indlaw SC 225.\n37.  We are therefore unable to accept the submission that absence of the right of induction of tenants in reconstructed premises is either arbitrary or unreasonable. The submission that s. 16(2) which provides that when a building is totally demolished and on which a new building is erected shall be exempt from all the provisions of the Act for a period of five years is bad is also unsustainable. See in this connection the observations of this Court in M/s. Punjab Tin Supply Co., Chandigarh etc. etc. v. The Central Government and others, [1984] 1 S.C.R. 428 1983 Indlaw SC 259 and Motor General Traders and another etc. etc. v. State of Andhra Pradesh and others etc. etc., [1984] 1 S.C.R. 594 at page 605 1983 Indlaw SC 256. It was submitted that the fact that in these cases exemption was after the first construction of the building and not after demolition and re-construction but that would not make any difference to the principle applicable.\n38. The principle underlying such exemption for a period of five years is not discriminatory against tenants, nor is it against the policy of the Act. It only serves as an incentive to the landlord for creation of additional housing accommodation to meet the growing needs of persons who have no accommodation to reside or to carry on business. It does not create a class of landlords who will forever be kept outside the scope of the Act as the provision balances the interests of the landlords on the one hand and the tenants on the other in a reasonable way. This Court in Atam Prakash v. State of Haryana and others, [1986] 2 S.C.C. 249 1986 Indlaw SC 276 also judged the rules of classification in dealing with the Punjab Pre-emption Act, 1913.\n39.  This Court emphasised in Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy, [1970] 3 S.C.R. 734 1970 Indlaw SC 346 that in considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It was also emphasised that it was not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition.\n40.  Our attention was drawn to certain observations of Chatterjee, J. of the Calcutta High Court in Jiwanlal & Co. and others v. Manot and Co., Ltd., (64 Calcutta Weekly Notes 932 at page 937) that where the landlord had established a case of building and rebuilding the tenants undoubtedly would suffer on ejectment. The learned Judge was of the view that though the landlords required the premises for the purpose of building and rebuilding, it was not desirable that the tenants should be ejected. The learned Judge emphasised that the purpose of the Act was to protect the tenants as long as possible and to eject them only when it was not otherwise possible. The landlords did not require it for their own use and occupation.\n41. They wanted it for the advantage of increased accommodation. The learned Judge was of the view that if the tenants were ejected, then for the time being, far from the problem being solved, it would create difficulties for the public as well as for themselves. We are, however, unable to accept this principle. It is true that the Act must be so construed that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act and one of the purposes of the Act is to solve the acute shortage of accommodation by making a rational basis for eviction and to encourage building and rebuilding which is at the root of all causes of shortage of accommodation.\n42.  It was held by a learned single Judge of the Madras High Court (one of us-Natarajan J.) in M/s. Patel Roadways Private Limited, Madras v. State of Tamil Nadu and others, (A.I.R. 1985 Madras 119) 1984 Indlaw MAD 261 that the provisions of the Tamil Nadu Act were not violative of Art. 14 and Art. 19(1)(f) of the Act. But that was in a slightly different context.\n43.  Post war migration of human beings en bloc place to place, the partition of the country and uprooting of the people from their hearth and home, explosion of population, are the various vital factors leading to the present acute shortage of housing. It has to be borne in mind that the urge for land and yearning for hearth and home are as perennial emotions as hunger and sex are, as Poet Rabindranath would say meaning thereby, it is not wealth-I seek, it is not fame that I want, I crave for a home expressing the eternal yearning of all living beings for habitat.\n44.  It is common knowledge that there is acute shortage of housing, various factors have led to this problem. The laws relating to letting and of landlord and tenant in different States have from different States' angles tried to grapple the problem. Yet in view of the magnitude of the problem, the problem has become insoluble and the litigations abound and the people suffer. More houses must, therefore, be built, more accommodation and more spaces made available for the people to live in. The laws of landlord and tenant must be made rational, humane, certain and capable of being quickly implemented. Those landlords who are having premises in their control should be induced and encouraged to part with available accommodation for limited periods on certain safeguards which will strictly ensure their recovery when wanted. Men with money should be given proper and meaningful incentives as in some European countries to build houses, tax holidays for new houses can be encouraged. The tenants should also be given protection and security and certain amount of reasonableness in the rent. Escalation of prices in the urban properties, land, materials and houses must be rationally checked. This country very vitally and very urgently requires a National Housing Policy if we want to prevent a major breakdown of law and order and gradual disillusionment of people. After all shelter is one of our fundamental rights. New rational housing policy must attract new buildings, encourage new buildings, make available new spaces, rationalise the rent structure and rationalise the rent provisions and bring certain amount of uniformity though leaving scope for sufficient flexibility among the States to adjust such legislation according to its needs. This Court and the High Court should also be relieved of the heavy burdens of this rent litigations. Tier of appeals should be curtailed. Laws must be simple, rational and clear.\n45. Tenants are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenants. Litigations must come to end quickly. Such new Housing Policy must comprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis with quicker procedure should be examined. This has become an urgent imperative of today's revolution. A fast changing society cannot operate with unchanging law and preconceived judicial attitude.\n46.  For the reasons aforesaid the contentions urged in writ petitions fail and are accordingly dismissed. In the facts and circumstances of the case there will be no order as to costs. Interim orders if any are vacated.\nPetition dismissed\n"}
+{"id": "YxPY8EcFK1", "title": "", "text": "Kikar Singh v State of Rajasthan\nSupreme Court of India\n\n12  May  1993\nCr.A. No. 437 of 1993. From the Judgment and Order Dt. 12.9.1990 of the Rajasthan High Court in D.B. Cr.A. No. 185 of 1984\nThe Judgment was delivered by: K. Ramaswamy, J.\n1. Special leave granted.\n2. The appellant was convicted under s. 302 I.P.C. and sentenced to undergo imprisonment for life for causing the death of Jeet Singh on May 22, 1983 at about 11,00 a.m. in the field of the deceased. The Rajasthan High Court confirmed the conviction in Criminal Appeal No. 105 of 1984.\n3. The case of the prosecution in nutshell was that the deceased and the appellant are neighbouring owners of lands. There was an altercation between them due to the appellant throwing soil into the lands of the deceased from 'Dali' (strip of land dividing the two fields of the deceased and the appellant). Thereon the deceased went to the appellant to persuade him not to throw the soil into their field and to have the matter settled amicably through negotiations and if need be by measuring the lands, yet the appellant was annoyed with the conduct of the deceased and his sons PW- 1 and PW-2 and son-in-law PW-3. At the instigation of his son by name Pappu (who was a juvenile offender and was dealt with separately), the appellant inflicted with Kassi (spade, sharp edged cutting instrument) on the head of the deceased and with its impact the deceased fell down. Thereafter the appellant inflected two more injuries. When PW- 1 to 3 raised alarm, the accused ran away. PWs- 1 to 3 went near Jeet Singh and found him dead with bleeding injuries on head, neck and back.PW-1 went and lodge at the police station the report Ex. P-1 narrating the entire prosecution case. At the trial PWs- 1 to 3 were examined as direct witnesses whose evidence was believed by both the courts below as natural witnesses and the appellant was convicted for the offence of murder. We found no infirmity in the assessment of the evidence, though the counsel for the appellant attempted to argue the case in that behalf.\n4. However, notice was issued to the State oil the nature of the offence and the State has appeared. We have heard the counsel on both sides. During post-mortem the doctor found the following thee injuries on the dead body\n1. Incised wound 11 cm x 2-1/2 cm x 5 cm on the right pariete occipital area. Bone fractured ura matter was seen from the wound.\n2. Incised wound 15 cm x 6 cm x 5 cmon the right scapular area bone fractured.\n3. Incised wound 13 cm x 10 cm x 12 cm on the right side of neck. All vessels of the right side neck were cut cervical vertebrae 4 and 5 along with the spinal cord was cut through and Larynx and right side of mandible cut.\n5. The witnesses have stated that when the appellant caused the first injury on the head, the deceased fell down and thereafter the appellant inflicted the other two injuries while the deceased was lying on the ground. The incised injury on the parieto occipital region was the first injury.\n6. The doctor found that by the third injury on the right side of the neck, the vessels on the right side of the neck, were completely cut, cervical vertebra along with spinal cord were cut through larynx and also right side of mandible. According to him, the third injury was sufficient to cause death in the ordinary course of nature.\n7. The contention of the learned counsel is that the appellant committed the offence on the spur of moment when quarrel ensued between the appellant and the deceased, when the appellant was prevented to spread the soil in his field. So in heat of passion and on the spur of moment without premeditation the appellant inflicted injuries on the deceased. He had no intention to cause-particular injuries, thou oh later on proved to be fatal. Since he had no intention to cause such injury as is likely to cause the death and there was no premeditation, nor intention to kill, the case would fall under Exception (4) to s. 300 I.P.C. Even otherwise no offence of murder has been made out.\nTherefore, it is only culpable homicide not amounting to murder punishable under s. 3(A Part 11 I.P.C. Having given our anxious consideration and the facts and circumstances do indicate that there are no merits in either contentions.\n8. Even if we assume that the appellant committed the offence during the course of a verbal quarrel between the appellant and the deceased one cannot escape from the conclusion that the offence is one of murder.\n9. S. 299 I.P.C. defines that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Under s.,300 except in the cases hereinafter excepted, culpable homicide is murder........ thirdly if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.\n10. Exception 4 thereof provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Under s. 302 whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. Whoever commits.\n11. Culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, or with fine, or with both. Under second part of s. 304 I.P.C. if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.\n12. It is, therefore, clear that culpable homicide is murder when the accused causes death by doing an act with the intention of causing death, or causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death. If the accused intentionally causes bodily injury which is found to be sufficient in the ordinary course of nature to cause death if would attract clause thirdly of s. 300 I.P.C. If the accused knows that the act he causes is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury it would attract clause fourthly. It would be murder unless it is brought in any one of the exceptions. In a given case even if the case does not fall in any of the exceptions, still if the ingredients of cls. 1 to 4 of S. 3(X) are not satisfied, then it would be culpable homiest not amounting to murder punishable under s. 304 either cl. 1 or cl. 2. It is, therefore, the duty of the prosecution to prove the offence of murder.\n13. The counsel attempted to bring the case within exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender shaving taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track.\n14. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to exception 4. True the number of wound is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the exception 4 engrafted to S. 300 is excepted and the offences committed would be one of murder.\n15. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatel blows on the deceased, exception 4 is not attracted and commission must be one of murder punishable under s. 302. Equally for attracting exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument of manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under exception 4. In Pandurang Narayan Jawalekar v. State of maharashtra [1979] 1 SCC 132 1978 Indlaw SC 440, the facts proved were that the appellant gave a blow on the head of the deceased old man who was advising him not to quarrel. The injury caused to the brain from one end to the other resulted in fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with very great force.\n16. Accordingly it was held that exception 4 does not apply though there was sudden quarrel and that the fight was not premeditated to cause death. It must be shown that the injury caused is not cruel one. The conviction for offence under s. 302 by the High Court reversing the acquittal by trial court was upheld.\n17. If the weapon used or the manner of attack by the assailant is out of all proportion to the offence given that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where a person, during the course of sudden fight, without premeditation and probably in the heat of passion, took undue advantage and acted in a cruel manner in using a deadly weapon there was no ground to hold that his act did not amount to murder.\n18. Therefore, if the appellant used deadly weapons against the unarmed man and struck him a blow on the head it must be held that he inflicted the blows with the knowledge that they would likely to cause death and he had taken undue advantage. He did not stop with the first blow, he inflicted two more blows on the fallen man and the third one proved to be fatal. He acted cruelly with no justification. By his conduct the appellant denied himself of the benefit of exception 4 to s. 300 I.P.C.\n19. In Virsa Singh v. State of Punjab AIR 1958 SC 465 1958 Indlaw SC 82, a leading forerunner on the point, this Court held that the prosecution must prove that bodily injury is present. The nature of the injury must be proved.\nThirdly, it must he proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or an intentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the court must further proceed with the enquiry and find that the prosecution has proved that the injury described is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution the offence of murder falls under clause thirdly of S. 300. It matters not that there was no intention to cause death or that there was no intention even to cause death in the ordinary course of nature. Once it is proved that the intention to cause the bodily injury actually found to be present, the rest of the enquiry is purely objective to be deduced by inference. But where no evidence or explanation is given about why the accused thrust a spear into the abdomen of the decease with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places, it would be perverse to conclude that he did not intend to inflict the injury that he did. The question whether there is intention or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the accused intended to inflict the injury in question. It was held in that case that the offence was one of murder falling under clause thirdly of S. 302. In Rajwant Singh v. State of kerala AIR [1996] SC 1874, the bodily injury consisted of tying up the hands and the feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had been preplanned and, therefore, this Court held that the acts satisfied the objective tests of cl. 3 of s. 300 and were held to be sufficient in the ordinary course to cause death. Accordingly it was one punishable under s. 302.\n20. It is not necessary that death must be inevitable or in all circumstances the injury inflicted must cause death. If the probability of death is very great the requirement of clause third is satisfied. If there is prob ability in a less degree of death ensuing from the act committed the finding should be of culpable homicide not amounting to murder. The emphasis is sufficiency of injury to cause death. A judge must always try to find whether the bodily injury inflicted was that which the accused intended to inflict. The intention must be gathered from a careful examination of all the facts and circumstances in a given case. The citus at which the injury was inflicted, nature of the injury, weapon used, force with which it was used are all relevant facts.\n21. We find from the facts that the appellant inflicted fatal blow, i.e. 3rd injury severing the neck after the deceased had fallen on the ground due to impact of the first injury on practical region. The third injury is proved to be sufficient in the ordinary course of nature to cause death.\n22. Even otherwise death is inevitable. When the appellant inflicted two injuries on a fallen man, it must be held that he intended to inflict those two injuries, though the first injury may be assumed to have been inflicted during the course of altercation.\nThus we hold that the offence is one of murder and the appellant was rightly convicted and sentenced to imprisonment for life under s. 302 I.P.C. The appeal is, therefore, dismissed.\nAppeal dismissed\n"}
+{"id": "AwFv0Yg7NZ", "title": "", "text": "S.D.S. Shipping Pvt. Ltd. v Jay Container Services Co. Pvt. Ltd. and others\nSupreme Court of India\n\n8  May  2003\nC.A. No. 4064 of 2003\nThe Judgment was delivered by: ARIJIT PASAYAT, J.\nLeave granted.\n1. 2. Shorn of unnecessary details, the factual background giving rise to the present appeal is as follows:-\n2.  Respondent no.1 as plaintiff filed a suit in the ordinary original civil jurisdiction of the Bombay High Court, inter alia, with the following prayers:\n\"a) That the Defendant No.1 be ordered to pay the Plaintiffs a sum of Rs. 1,61,13,173.24  details of which are given in the enclosure at Annexure 'A' to this plaint and the Defendant No.1 be directed to pay interest @ 21% till the date of actual payment.\na-1 That Defendant No.1 be ordered and decreed to pay a sum of US $ 4140 per month alongwith interest @ 18% per annum from due date till payment/realization with effect from 1st November, 1997 towards lease rent until all the 92 containers are returned.\nIn the alternative and without prejudice:\"\n3. Appellant is defendant no.1 in the suit.\n4. According to the plaintiff it is a private limited company engaged amongst others in the business of supply of containers for the ships to carry goods from one place to another. It supplied containers to the present appellant from time to time. There was lease agreement entered into between the parties for use of leased containers. The agreement expired on 30th March, 1996; but was further extended by one month. Even during the extended period and thereafter the containers were not returned by the defendant. no.1. It entered into correspondence with defendant no.1 calling up it to return the containers and to pay the lease charges. Cheques issued by the said defendant bounced on presentation. The defendant no.1 by letter dated 26th April, 1996 addressed to the attorneys of the plaintiff informed that efforts were on to look for a suitable vessel to bring those containers from Plot Louis to Bombay. But the containers were not returned. Prior to the said letter dated 26th April, 1996 by two communications dated 10th January, 1996, it had been communicated that out of the total lot of 92, 35 containers could not be returned. It was stated that those containers were lost leaving a balance of 57 containers. The containers were given on lease basis and since there was no dispute about non-return, demands were made for payment. There was also no dispute regarding lease rental. Ultimately, when the plaintiff found that the containers were not returned and also the lease charges were not paid, the suit No. 4794 of 1997 was filed seeking a sum of Rs. 1,61,13,173.14. This included the claim for non-return of the containers and the claim for outstanding rental.\n2. After the suit was filed, plaintiff took out a motion, being Notice of Motion No. 378 of 1998 for Receiver and injunction for the containers which were not returned. The learned Single Judge by order dated 11th August, 1999, took the view that there was no case for appointing a Receiver for the properties by way of security for the amounts which may be due. He also held that no irreparable loss will be caused if interim relief was not granted. While rejecting this motion, however, liberty was granted to the plaintiff to take out the appropriate proceedings for a direction to defendant no.1 to deposit the arrears of rent, if any, due. Order of the learned Single Judge was upheld by the Division Bench. While disposing of the appeal, however, it was observed by it that the view expressed by learned Single Judge were of prima facie nature and were intended to dispose of the motion. It was further observed that if the plaintiff moves an application for attachment before judgment, observations made in the order of learned Single Judge as well as the Division Bench will not prejudice the application.\n5. Thereafter another notice of motion was taken where it was prayed that defendant no.1 be directed to deposit the amount of Rs. 81,77,632.50, being the amount towards arrears of rental and also for a direction that per month an amount of Rs. 1,78,020/- be deposited from time to time. Learned Single Judge took the view that the power of the Court under Order 12 Rule 6 of Civil Procedure Code, 1908 dealing with decree on admission could not be invoked in the matter. It was held that S. 151 of the Code was not available to the plaintiff to invoke the inherent jurisdiction on the facts of the case.\n6. The orders were challenged by the plaintiff before the Division Bench which by the impugned order directed defendant no.1 to deposit an amount of Rs. 81,77,632.50  within 12 weeks period. It was further directed that the amount was to be deposited in a nationalised bank for a period of 37 months and the deposit was to be renewed at a time by 13 months until the suit was decided. This order is under challenge.\n7. Mr. R.F. Nariman, learned senior counsel for the appellants submitted that the Division Bench manifestly erred in directing deposit by overlooking the factual and legal background involved. In a commercial suit where there was dispute regarding the liability such directions could not have been given. Even in respect of a summary suit under Order 37 there was no scope for giving the type of direction as done. The Division Bench while implicitly upholding the view of learned Single Judge that Order 12 Rule 6 was not applicable could not have applied the logic of Order 39 Rule 10 of the Code which operates in an entirely different background. It was pointed out that the Division Bench committed factual error in observing that there was no clear denial to the claim of the plaintiff and/ or that its stand was an evasive one and at times in the nature of an afterthought. Having ruled out application of Order 12 Rule 6, it was not open to the Division Bench to bring in operation of Rule 39 Rule 10, of the Code with the help of S. 151. It was also submitted that the claim as made clearly exaggerated, without any foundation or basis and neither in law nor equity plaintiff was entitled to any relief.\n8. It was, however, accepted that at the most the plaintiff may be entitled to the arrears of rentals and nothing beyond that. The question of making any payment for the rentals after expiry of the agreement period is also not contemplated in law. There was no termination of the agreement and on the contrary it lost its currency after the extended period of one month beyond the initially stipulated last date.\n9. Responding to the above submissions, Mr. K.K. Venugopal, learned senior counsel for the plaintiff (respondent no.1) submitted that here is a case where the party has taken advantage of its own wrong doings. Undisputedly it had taken the containers on lease. Cl. 6 of the agreement clearly stipulates that rental charges were to be paid till the containers are returned. This has admittedly not been done. There are several letters where there was express acceptance of the liability. Finally it was submitted that this is not a case where this Court should exercise powers u/art. 136 of the Constitution of India, 1950.\n10. By way of reply to the submissions made by Mr. Venugopal, Mr. Nariman submitted that the scope and ambit of Art. 136 is too well known and, therefore, where substantial question of law relating to jurisdiction of a commercial court is raised, the Court has to see whether the impugned judgment meets the requirement of law. According to him, it is too futile to contend that Art. 136 will not be exercised in a case of this nature where the Division Bench of the High Court clearly acted contrary to well-settled principle of law.\n11. Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the order impugned is an interim order. The direction is for deposit and no liberty has been granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were leased out by the plaintiff to the defendant no.1 according to whom some of the containers were not traceable and were lost. We may add here that subsequent to the filing of the suit, it was contended that all the 92 vessels were lost.\n12. In view of the factual scenario unfolded above, it does not appear to be a case where interference u/art. 136 of the Constitution is called for. That power is exercised only on showing substantial injustice, and not for merely technical flaws in a proceeding. . The position was illuminatingly stated in Rashpal Malhotra vs. Mrs. Satya Rajput and Anr. 1987 Indlaw SC 28884 ). This Court in Heavy Engineering Corporation Ltd., Ranchi vs. K. Singh and Co., Ranchi 1977 Indlaw SC 375 ) expressed the opinion that although the powers of this Court were wide under Article 136, it could not be urged that because leave had been granted the court must always in every case deal with the merits, even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana vs. Deputy Collector of Consolidation 1978 Indlaw SC 162 ) it was held that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal, but the final court of the nation. Therefore, even if legal flaws might be electronically detected, it may not interfere save manifest injustice or substantial question of public importance.\n13. In Taherakhatoon (D) by Lrs. vs. Salambin Mohammad 1999 Indlaw SC 983 ), it was noted that even in cases where leave has been granted, the Court might after declaring the correct legal position decline to interfere saying that it would not exercise discretion to decide the case on merits and that it would decide on the basis of the equitable considerations in the facts and circumstances of the case and mould the final order.\n14. Even if it is accepted for the sake of arguments that there was some faulty conclusion in law, the impugned order being an interim one, we do not consider this to be fit case for interference in exercise of jurisdiction u/art. 136. But, taking note of the peculiar facts, ends of justice would be best served if the appellant is directed to deposit Rupees Fifty lacs instead of Rupees Eighty two lacks by end of June, 2003.\n15. The appeal is accordingly disposed of leaving the parties to bear their respective costs.\nAppeal disposed of.\n"}
+{"id": "uQO001xtSV", "title": "", "text": "High Court of Judicature at Bombay through Registrar and another v Brij Mohan Gupta (Dead) through LRs. and another\nSupreme Court of India\n\n23 January 2003\nAppeal (Civil) 137 of 1999\nThe Order of the Court was as follows :\n1.  The respondent herein Brij Mohan Gupta was born on 2nd July, 1939. He was directly appointed from the Bar as a Judge of City Civil and Sessions Court, Bombay (Maharashtra Higher Judicial Service). He assumed charge on 4th November, 1988. In normal course, the respondent would have completed 10 years of service on 4th November, 1998. He would have attained the age of 58 years on 2nd July, 1997 and the age of 60 years on 2nd July. 1999.\n2.  The High Court of Bombay, in view of the decision of this Court in All India Judges' Association and Ors. v. Union of India and Others, [1993] 4 SCC 288 1993 Indlaw SC 1712 (hereinafter referred to as \"Judges Case-II\"), appointed a Committee to review the case of the respondent for giving him the benefit of continuity in service till the age of 60 years. The Committee made an adverse report against the respondent and recommended that he may be made to retire on attaining the age of 58 years. The High Court, in view of the recommendation of the Committee, issued an order on 30th July, 1997, retiring the respondent from service w.e.f. 31st July, 1997. Aggrieved, the respondent filed a petition u/art. 226 of the Constitution before the Bombay High Court.\n3.  The case of the respondent before the High Court was that under Rule 10(3) (c) of the Maharashtra Civil Services (Pension) Rules, 1982, he was entitled to continue till completion of 10 years' qualifying service which was necessary to entitle him to get the benefit of Rule 53 of the Rules. The High Court accepted the said argument and held that the respondent would be entitled to continue in service until 4th November, 1998 on which date he would have completed 10 years in service and as a result the respondent would be liable to retire from service when he actually would complete 59 years, 4 months and 2 days. In that view of the matter, the writ petition was allowed and the impugned order stood modified.\n4.  It is against the said judgment of the High Court; the appellants are before us in appeal.Mr. U. U. Lalit, learned counsel appearing for the appellants contends that in terms of Judges Case-I [1992] 1 SCC 119 and Judges Case-II [1993] 4 SCC 288. Rule 10(3)(c) stood subrogated therein and the High Court was justified in taking a decision on completion of the age of 58 years of the respondent to find out whether he would be allowed to continue till the age of 58 years. We find merit in his contention.\n5.  In Judges Case-I, a direction was issued by this Court to all the States and the Union Territories, including the State of Maharashtra, to fix the age of retirement at 60 years w.e.f. 31st December, 1992 in respect of members of the Judicial Service. In Judges Case-II again this Court held that where there is no Rule providing for the age of superannuation at the age of 60 years, a Committee of the High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in respective Service Rules applicable to Judicial Officers; that those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 years by following the said procedure for compulsory retirement; and that the exercise should be undertaken before the attainment of the age of 58 years even in case where earlier the age of superannuation was less than 58 years.\n6.  In terms of these directions, the Chief Justices of the respective High Courts were required to set up appropriate Committees of five Hon'ble Judges to look into the service records of the concerned Judicial Officer, so as to consider as to whether he should be allowed to continue up to the age of 60 years. The said procedure was followed in the instant case.\n7.  The five-Judges Committee looked into the records of the respondent and opined:\n\"The Committee has considered the annual Confidential Reports of Shri Gupta for the last 5 years i.e. since 1992. He lacks integrity. He does not enjoy good reputation. His behavior with the members of Bar and public is unsatisfactory. He is rated as a poor Judge. The S.I.D. record shows that in File No. SID/BY/34/93, the Disciplinary Committee has, on 29th March issued a warning informing him that he should be more careful while passing order in future.Considering the material placed before the Committee and the overall performance of Shri Gupta, the Committee is of the opinion that he is not suitable to be continued, his performance is not up to the mark and therefore, he does not deserve grant of benefit of increase of retirement age of 60 years.\"\n8.  In view of the said report, the respondent was made to retire on attaining the age of 58 years i.e. 30.7.1997.Rule 10(3)(c) of the Maharashtra Civil Service (Pension) Rule, 1982 is applicable only to the direct appointees from the Bar. By reason thereof, the benefit of pension has been extended to them so as to enable them to complete the minimum qualifying service of ten years subject to the outer limit of 60 years of age. The normal age of superannuation of such an officer would either be completion of ten years of service or 55 years whichever is earlier.\n9. In that view of the matter, the respondent would have reached the age of superannuation on attaining the age of 55 years. He, however, in view of the benefit conferred in terms of the Judges' Case, as referred to hereinbefore, was to retire at the age of 60 years but such benefit was subject to the conditions laid down therein. Only in the event the age of superannuation of the judicial officers is 60 years under the Service Rules, the question of review of his performance on attaining the age of 58 years would not arise; but when under the Service Rules applicable to the judicial officers the age of superannuation is 58 years or below, he would be entitled to the benefit of the judgment, in which event the limitations of applicability thereof would also squarely apply.\n10.  In our view, the exercise of setting up a Committee by the Chief Justice, the recommendation made by the Committee and also finally the administrative order passed by the High Court, were strictly in terms of the Judges Case-I and Judges Case-II. In fact, by virtue of Judges Case-I and Judges Case-II, Rule 10(3) (c) stood subrogated. We are, therefore, of the view that the judgment under challenge is not in conformity with the aforesaid decisions and is liable to be set aside.\n11.  However, in the peculiar facts and circumstances of the case and particularly in view of the fact that the original respondent has expired on 17.3.2001, we direct that he may be held to have retired on completion of 10 years of service and in that view of the matter, all retrial benefits would be payable in accordance with law. We have taken this view as in the event, the respondent was allowed to complete ten years of his service, he would have retired at the age of 58 years six months only.\nin that view of the matter, we are not inclined to interfere in the matter. The appeal is disposed of with the aforementioned observations and directions. C.A.No. 138/1999 Learned counsel appearing for the appellant states that the appeal is rendered in fructuous. It is dismissed as such.\nAppeal disposed of.\n"}
+{"id": "q0Zf2pCLxb", "title": "", "text": "Panna Lal Ghosh and Others v Land Acquisition Collector and Others\nSupreme Court of India\n\n12 December 2003\nAppeal (civil) 9734 of 2003 [Arising out of SLP(C) No. 15758 of 2000]\nThe Judgment was delivered by : Rajendra Babu, J.\nLeave granted.\n1. The case relates to acquisition of land measuring 3.37 acres in Mouja Pabiacheura in Kailashahar, State of Tripura. The notification under Section 4(1) of the Land Acquisition Act, 1894 [hereinafter, 'the Act'] was issued on 24th December 1968 and on 13th October, 1969, declaration under Section 6 of the Act was published. The Land Acquisition Collector made his award in October 1974 awarding Rs.12,000/- per acre for 'nal land' and Rs.9,000/- per acre for 'chara land'. On 21.10.1974, the appellants filed an application for reference under Section 18 of the Act for enhancement of compensation. On reference, the learned L.A. Judge passed an award enhancing compensation, allowing Rs.36,000/- per acre and also granted 15% solatium, and interest under Section 23(2) of the Act in 1985.\n2.  On appeal to the High Court, the claim for enhancement was dismissed. The High Court also denied the appellants benefits under Section 23(2) of the Act by relying on the decision of this Court in K.S. Paripoornan vs. State of Kerala, AIR 1995 SC 1012 1994 Indlaw SC 1227.\nBefore this Court, the main issues are as follows:\n(1) Was the High Court justified in not awarding enhanced compensation?\n(2) Are the appellants entitled to solatium and interest @ 30% under Section 23(2) of the Act?\n3.  Compensation payable on a piece of land acquired under the Act is determined by taking into account the market value of the land so acquired. The most reliable way to determine the market value is to rely on the instances of sale of portions of the same land as has been acquired or adjacent lands made shortly before or the after the Section 4 notification .\n4.  Accordingly, the appellants had produced before the High Court a certified copy of an award passed by the learned L.A. Judge in another acquisition proceedings. In this case, the land was 150 ft. away from the lands involved in the present proceedings. In those proceedings, the learned L.A. Judge had awarded Rs.1 lakh per acre as compensation. This was sought to be relied on by the appellants. The High Court chose not to rely on this document as no evidence was led to show that both lands are similar in nature having similar potentiality. While determining the market value of land, it must be with reference to a piece of land which is comparable to the present lands being acquired. It must be similar in potentiality and nature. The document which the appellants seek to rely on relates to land which was acquired for the purpose of Assam- Agartala Road. It was 3 feet higher than the acquired land. Further, the two lands were not proved to be comparable in nature and potentiality. Therefore, the High Court is right in not relying on the said document and disallowing the claim for enhancement for compensation.\n5.  The second issue relates to the payment of solatium @ 30% under Section 23(2) of the Act. Solatium is 'money comfort' quantified by the statute and given as a conciliatory measure for the compulsory acquisition of land of the citizen, by a welfare state such as India \". Thus the statutory amount of solatium is intended to compensate the owner for his disinclination to part with his property.\n6.  The main aspect that arises for consideration is the issue of the rate of solatium. By an amendment in 1984, the rate was increased to 30% from the original 15% by virtue of Section 30(2) of the Amending Act. This increase was given a limited retrospectivity, in the sense that, the Amending Act, under Section 30(2) provided that the increased solatium is applicable to those awards passed by the Collector or the Court between 30.4.1982 and 29.9.1984. Can it be said that the present case would be entitled to this additional benefit?\n7.  The award was made by the L.A. Collector way before the said period i.e. in 1974. However, the reference Court passed its award after the said period, i.e. in 1985. Therefore, the issue is whether the amendment would apply to a case pending during the period of 2 years from 30.4.1982 to 29.9.1984.\n8.  This precise issue has come up for consideration a number of times before this Court. In Union of India v. Raghubir Singh, (1989) 2 SCC 754 1989 Indlaw SC 914, it was held that the benefit of enhanced solatium would apply only in cases where the award by the Collector or Court is made between 30.4.1982 and 24.9.1984 or appeals against such awards decided by the High Courts or this Court, whether rendered before 24.9.1984 or after that date. This Court found that the language of the Section ruled out the applicability of the benefit to all pending proceedings.\n9.  In Union of India v. Filip Tiago De Gama, AIR 1990 SC 981 1989 Indlaw SC 335, the issue was whether the amendment would apply to an award made subsequent to 24.9.1984 even though the acquisition proceedings had commenced prior to the date. This Court looked at the intention behind giving retrospective effect to the amending Section. If the literal interpretation is taken, it was held, it will result in an anomaly. In order to avoid it, regard must be had to the purpose of Section 30(2). Consequently, this Court awarded higher solatium even though the Reference Court made the award in 1985.\n10.  Again in K.S. Paripoornan vs. State of Kerala, AIR 1995 SC 1012 1994 Indlaw SC 1227.\ncase [supra], this Court widened the restricted interpretation given in Union of India v. Raghubir Singh, (1989) 2 SCC 754 1989 Indlaw SC 914 case. It held that the enhanced solatium would apply even to a case pending at the time the Act came into force.\n11.  Following this train of thought, the benefit of enhanced solatium would extend to the present case. During the period between 30.4.1982 and 29.9.1984, the reference was pending in the Reference Court. The court's award was passed in 1985. Following the above interpretation, the appellants are thus entitled to enhanced solatium @ 30% and interest under Section 23(2) of the Act.\n12.  The High Court in considering the case under Section 23(1-A) of the Act has committed an error. The appellants are entitled to solatium under Section 23(2) of the Act and, therefore, the reference by the High Court to Section 23(1-A) is irrelevant in the present case.\n13.  The learned counsel for respondents has contended that solatium is not applicable because the West Bengal Land Development and Planning Act, 1948, under which this present area falls, does not contemplate it. The provision of solatium is mandatory and cannot be done away with. It has been held in a number of cases that the deprivation of solatium by the West Bengal Land Development and Planning Act is violative of Article 14 and Section 8(2) of the Act is held to be invalid. (See : Monoranjan Routh v. State of W.B., AIR 1972 Cal 487 1972 Indlaw CAL 140 and Ramendranath v. State of W.B., AIR 1975 Cal 325 1975 Indlaw CAL 211). Therefore, the contention that Section 8(2) of the Act excludes compensation by way of solatium does not hold good.\n14.  In the light of the above, the compensation @ 36,000/- per acre as awarded by the L.A. Judge is upheld. The solatium is to be paid @ 30% under Section 23(2) of the Act and an interest @ 9% per annum is also payable under Section 28 of the Act. The award made by the Reference Court as affirmed by the High Court shall stand modified accordingly and the appeal is allowed to that extent. No orders as to costs.\nAppeals Allowed\n"}
+{"id": "2BGCSzOjD8", "title": "", "text": "N.K. Prasada v Government Of India And Ors.\nSupreme Court of India\n\n12 April 2004\nAppeal (civil) 3137 of 1999\nThe Judgment was delivered by: S. B. Sinha, J.\n1.  The appellant herein was respondent No. 8 in one of the public interest litigations being No. 6240 of 1997 which was disposed of along with another public interest litigation being No. 5717 of 1997 and Contempt Case No. 779 of 1997.\n2.  The appellant herein has not questioned the correctness or otherwise of the impugned judgment dated 6th July, 1998 passed by a Division Bench of the Andhra Pradesh High Court in the aforementioned matters but only is concerned with certain observations made therein as also imposition of a sum of Rs. 20,000/- by way of costs. These two public interest litigations were filed successively by one B. Kistaiah, said to be a former Member of Legislative Assembly and the Writ Petition No. 6240 of 1997 by Digumarthi Premchand, said to be a journalist. In the said purported public interest litigations alleged malfunctioning of the Commissioner of Central Excise resulting in loss of several crores of rupees as also purported dismantling of the Special Investigating Team headed by the appellant herein were in question.\n3.  The writ petitioners contended that the said Special Investigation Team was dismantled by the Commissioner-I Central Excise & Customs, Hyderabad Commissioner ate only with a view to help the dishonest traders and to prevent the cases relating to evasion of excise duty. The appellant was not initially a party therein but despite the same an order of transfer passed against him and others dated 10.3.1997 bearing Establishment Order (G.O.) No. 43/97 was questioned in the said writ petition. The cause of action for filing writ petition No. 5717 of 1997 was also said to be issuance of the said order of transfer dated 10.3.1997. A Division Bench of the High Court by an order dated 21.03.1997 directed the appellant (although thence he was not a party) not to hand over any record in any pending case which was or is under his investigation to M.V.S. Chowdary till 26.3.1997.\n4. The respondents were also purported to be relying on or on the basis of the additional affidavit directed by the High Court to file their counter-affidavits and produce the records relating to setting up of the Special Investigation Team and its disbanding. The writ petitioner, however, instructed his counsel to withdraw the writ petition stating:\n\"My conscience, however, does not permit me to proceed with the said writ petition. I am also uncertain of the effect of the matter will have and I am constrained, for my personal reasons, and for my personal safety to seek the permission of the Hon'ble Court to withdraw the writ petition.\"\n5.  When the said matter was pending, another writ petition marked as W.P. No. 6240 of 1997 came to be filed by Digumarthi Premchand wherein the averments made, except for one paragraph were verbatim the same of those contained in writ petition bearing No. 5717 of 1997. In the said writ petition also the appellant herein was impleaded as a party and the main attack therein was directed against the said proceedings dated 10.03.1997 transferring the appellant.\n6.  It appears that the Director General, NACEN and Chief Commissioner, Hyderabad by an order dated 08.05.1997 directed that the appellant should be taken back on the rolls of Hyderabad Commissioner ate and furthermore should be handed over the cases for investigation. A further direction was made to examine how his period of absence can be regularised. The writ petitioner filed an application dated 22.5.1997 for implementation of the said proceedings which was marked as WPMP (SR) No. 55758 of 1997. Surprisingly enough, they said application was purported to have been directed to be placed for House Motion before a Division Bench purported to be under the orders of the Chief Justice of the Andhra Pradesh High Court which admittedly was found to be wrong.\n7. The appellant herein filed two applications on the same day one, to implead him as one of the respondents and the other to give effect to the said proceedings dated 8.5.1997 issued by the Chief Commissioner, Hyderabad. Despite the fact that the Registry of the High Court was not supposed to receive the said applications without the order of the Hon'ble Chief Justice, the same was done on a wrong premise that a direction in that behalf had been issued by the Chief Justice. Interestingly, the writ petitioner informed the Registrar (Judicial) that he would not be insisting for House Motion as his advocate would not be available but keeping in view the purported order passed by the Chief Justice, a Bench was constituted in relation where to admittedly no direction had been issued by the Chief Justice. It also stands admitted that even no direction had been issued to number the said applications, whence the application filed by the appellants were placed before the Bench.\n8.  The Registry submitted several reports before the Court, on having been asked to do so, which reveal as to how a fraud was practised upon the court presumably in collusion with some officers of the Registry. A contempt proceeding was initiated against Digumarthi Premchand relying or on the basis of the said reports but as the writ petitioner had been evading service of notice, not only non-bailable warrant was issued in absence of any correct address of writ petitioner having been furnished; the CBI was also asked to cause to make a detailed enquiry/investigation into the following issues:\n\"(a) whether there is any person by name Digumarthi Premchand, Journalist, r/o. Narayanaguda and if such a person is available, cause his production before this Court on or before 19-9-1997, (b) if there is no such person by name Digumarthi Premchand, the sixth respondent shall investigate and find out as to under what circumstances this writ petition came into existence and the person or persons responsible for filing the same.\"\n9.  Upon making an enquiry into the matter, a report was filed by the CBI on 19.9.1997 before the division bench of the High Court. The appellant herein thereafter appeared before the Court on 17.10.1997. The CBI submitted a final report stating that a chargesheet under Section 120-B read with Sections 199, 200, 201, 416, 465 and 471 of Indian Penal Code and Ss. 109 thereof had been filed by it against the writ petitioner, the appellant herein and one M. Kali Prasada who is his close relative. The material portions of the said report read as under:\n\"On 17-3-1997 Sri N. K. Prasada met one Sri B. Kistaiah an Ex. MLA who had got close association with Sri B. P. Agarwal Textile Mill owner of Shadnagar with whom they said Sri N. K. Prasada also had acquaintance. On the same day Sri Kistaiah filed a WP No.5717 of 1997 alleging irregularities in Customs and Central Excise, Hyderabad and also filed several documents along with writ petition which were supplied by N. K. Prasada. Not contended with filing of the above writ petition Sri N. K. Prasada A2 also got filed another WP No.6240 of 1997 through Sri S. Ramachandra Rao, senior Advocate and Seshagiri Rao, Advocate. Since, the subject-matter of both the writ petitions are one and the same, the Hon'ble High Court posted the matter for hearing before Hon'ble Justice V. Bhaskar Rao and Hon'ble Justice Sri B. Sudarshan Reddy. Sri Padmanabham, clerk of Sri Ramachander Rao informed that on 22-5-1997 Sri N.K. Prasada came to the office of Sri Ramachander Rao and asked him for the house motion petition of D. Premchand and Sri Padmanabham showed him the bundle from which Sri N. K. Prasada took out the petition informing him that he is taking the house motion petition of D. Premchand. Sri N. K. Prasada, (A2) has obtained this writ petition back from the Registrar of the High Court since some objections were raised by the Registrar and Sri N. K. Prasada also signed in return register maintained by the Registrar office in token of receipt of the petition back.\nThe register as well as specimen signatures of Sri N. K. Prasada have been referred to GEQD who opined that the signatures on the register pertains to Sri N. K. Prasada. The investigation disclosed that the origin of all Phonogram was from public telephone booth bearing No. 243 980, located at Basheerbagh and other PCO telephone No.332917 located at Erramanzil Colony. Investigation disclosed that on the day of filing of WP No.6240 of 1997 i.e., 26-3-1997 Sri Kali Prasada was taken to the office of Sri S. Ramachander Rao by Sri N.K. Pramda and Sri B. P. Agarwal. Investigation also disclosed that on 26-3-1997, Sri D. Premchand was present at Srikakulam and he has not come to Hyderabad nor he signed the affidavit enclose with the WP No.6240 of 1997. The GEQD has opined that the signature on WP No.6240 of 1997 was not that of Sri D. Premchand. But Sri D. Premchand with a fraudulent and dishonest intention filed an affidavit before the Hon'ble High Court on 7-11-1997 stating that he himself has signed the affidavit enclosed with the WP No.6240 of 1997 and that he himself filed the petition. Sri S. Ramachander Rao, Sr. Advocate and Sri Seshagiri Rao, Advocate who filed the WP No.6240 of 1997 have also stated in their statements recorded u/s. 164 Cr.P.C before the II MM Hyderabad that the person Sri D. Premchand who had surrendered before Hon'ble High Court on 19-9-1997 was not the person who came along with Sri N. K. Prasada and who signed the WP No.6240 of 1997 on 26-3-1997.\nThe document filed along with WP No.5717 of 1997 of Sri B. Kistaiah, Ex.MLA, Shadnagar were supplied by Sri N. K. Prasada has stated by Sri K. R. Prabhakar Rao, Advocate for Sri B. Kistaiah, Sri B. Kistaiah also stated before the Hon'ble High Court that Sri N. K. Prasada requested him not to withdraw the petition. By the aforesaid acts all the accused entered into criminal conspiracy and fraudulently filed WP No.6240 of 1997 and in which process A3 impersonated A1 under the active connivance of A2 and thereby played fraud on the higher judiciary. A1 has falsely stated through an affidavit before the Hon'ble High Court of A.P. on 7-11-1997 that he himself filed WP No.6240 of 1997.\nThus, all the three accused i.e., A1 to A3 committed offences punishable under Section 120-B read with 199, 200, 201, 419, 465 and 471 IPC and S. 109 IPC.\nIt is therefore prayed that the Hon'ble Court may take cognizance of the case against the accused and they may be dealt with according to law. Hence the charge-sheet.\"\n10.  The CBI was also directed by the High Court by an order dated 19.9.1997 to make investigation into the question as to:\n\"(1) whether the petitioner, himself, got the information required for the purpose of filing this writ petition and if so, who are the persons from whom the petitioner had gathered the information. It is also just and necessary to find out as to (2) how and on what basis the averments in the affidavit filed in support of the writ petition are made and the persons responsible for making or engineering the averments made in the affidavit.\"\n11.  A direction was also issued to find out as to under what circumstances the writ petitioner proposed to withdraw the writ petition as also who were the person's redsponsible for getting the letter of withdrawal filed by the writ petitioner. The CBI in its report inter alia opined that the appellant herein was the person working behind the scene. Interestingly, during the said investigation the appellant could not be traced out. The aforementioned B. Kistaiah (writ petitioner in W.P. No.6240 of 1997) made a solemn statement before the High Court wherein also he named the appellant herein as a person who was responsible for getting the writ petition filed through the advocate although he did not know him personally. He further alleged that the requisite documents for filing the writ petition have been handed over to the learned Advocate by the appellant.\n12. The High Court upon analysis of the pleadings and other materials placed before it noticed:\n\"On analysis of the pleadings before us and various reports filed by the CBI and the sworn statement of the petitioner in WP No.5717 of 1997 would lead to an irresistible conclusion that both these writ petitions are engineered and brought into existence by the 8th respondent herein with an oblique motive of avoiding an order of simple transfer dated 8-5-1997. It is the 8th respondent who has acted from behind the scene and had set up the petitioner to file the writ petition making reckless and unfounded allegations against the respondents. All this has been done only to avoid an order of simple transfer. To what extent the 8th respondent can stoop down is amply demonstrated from the contents of his own affidavit filed into this Court. In one of his counter-affidavits to the report of the CBI dated 17-10-1997 the 8th respondent inter alia states that \"on the day Sri B. P. Agarwal introduced me to the advocate but I had met Sri S. Ramachandra Rao later on my own to seek advice whether I should file in CAT or in High Court. As per his directions, I had given him relevant papers which he said he would examine and advise me accordingly.\nHowever, without my knowledge or authorisation he used the documents to file a Public Interest Litigation. I came to know much later that the Hon'ble High Court has issued certain directions on the PIL filed by B. Kistaiah, At no point of time did I influence or induce anyone to file a petition on my behalf.\"\nIt is further stated that \"the role of Sri S. Ramachander Rao as a senior Advocate looks very dubious in this context. This is apart from misusing the documents given by me to him in good faith for filing my own petition. This is a clear case of breach of client's confidentiality and interest.\"\nIt is now clear that it is the 8th respondent who made available the entire material filed into Court as material papers in these writ petitions. Obviously, the writ petition is drafted on the basis of the material supplied by the 8th respondent. It would be totally altogether a different matter as to whether the affidavit is signed by the petitioner or by somebody else at the instance of Respondent No.8. But the feet remains that material has been admittedly made available by the 8th respondent, undoubtedly he is the king pin in the whole drama and operating from behind the scene.\"\n13.  Before the High Court Shri E. Seshagiri Rao, advocate who had filed the writ petition affirmed an affidavit wherefrom it transpired that the writ petition had been filed from the Office of Shri S. Ramchander Rao, a senior advocate purported to be on the instructions of one Shri B. P. Agarwal, the appellant herein and some other persons.\n14.  The High Court noticed gross abuse of the process of the Court in the manner of filing the aforementioned two writ petitions said to be in the nature of public interest litigations. The High Court also went into the merit of the matter and arrived at a finding that the writ petitions were filed at the instance of the appellant herein. The High Court while finding the said writ petitions to be without any merit opined that no relief can be granted to the writ petitioner. The High Court also expressed its unhappiness over the role of the lawyers. The High Court although noticed that the writ petitioner in writ petition No. 5717 of 1997 appeared in person and wanted to withdraw the writ petition but did not absolve him of his responsibility in the matter in filing the writ petition at the instance of the appellant herein. However, it took a lenient view and dismissed the writ petition without awarding any cost against him. The High Court, however, administered severe warning to him to be careful in future and not to play any game with judicial process.\n15.  So far as writ petition No. 6240 of 1997 is concerned, the High Court held:\n\"So far as WP No.6240 of 1997 is concerned, we have already observed that the petitioner, as well as the 8th respondent are guilty of abuse of the judicial process in the name of public interest litigation. They have put the device of public interest litigation to naked abuse. The weapon invented by the Apex Court with a noble cause intended to serve the deprived sections of the Society pressed into operation for destructive purpose. The streams of justice are polluted by their conduct. We, under those circumstances, consider it appropriate to dismiss the writ petition-Writ Petition No.6240 of 1997 with exemplary costs quantified at Rs.25,000/-(Rupees twenty five thousand only); out of which a sum of Rs.5,000.00 (Rupees five thousand only) shall be paid by the petitioner, Digumarthi Premchand and the remaining sum of Rs.20,000/- (Rupees twenty thousand only) shall be paid by the respondent No. 8, N. K. Prasada. The amount shall be deposited by the petitioner and the 8th respondent with A.P. State Legal Services Authority.\"\n16.  In the contempt proceedings the writ petitioner was found guilty and punishment till the rising of the court was awarded to the writ petitioner. The High Court, however, keeping in view the pendency of the criminal case observed:\n\"However, we would like to make very clear that we have not expressed any opinion whatsoever with regard to the merits of the prosecution and the charge-sheet filed by the CBI against the petitioner as well as 8th respondent and one Kali Prasada. The trial Court shall proceed with the trial uninfluenced by any of the observations made by us in this order. We have not expressed any opinion about any of the aspects and merits of the allegations levelled against the petitioner and the 8th respondent. The observations, if any, made by this Court while referring to the reports of the CBI and the charge-sheet are confined for the purpose of disposal of this writ petitions and the contempt case. The trial Court shall dispose of the criminal case uninfluenced by any observation whatsoever made in this case.\"\n17.  Contentions of Mr. Amarendra Sharan, learned senior counsel appearing on behalf of the appellant are two-fold. Firstly he drew our attention to a First Information Report purported to have been lodged by him against one T.N. Rao, Dy. S.P. CBI Hyderabad and urged that as the said officer had himself been facing a criminal charge of asking for bribe, his report filed before the High Court should not have been relied upon. The learned counsel would secondly urge that although the appellant was impleaded as a party, no opportunity of hearing having been granted to him the impugned judgment cannot be sustained.\n18.  Mr. Anoop G. Choudhary, learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that the High Court itself could have been moved for expunction of the remarks by the appellant herein. It was pointed out that the appellant took part in the CBI enquiry, filed an application for regularisation of leave and keeping in view the report submitted by the Central Bureau of Investigation, his involvement in getting the writ petition filed is apparent on the face of the record.\n19.  The writ petitioner who had been arrayed as respondent No. 8 in the Special Leave application has filed an affidavit. He in his affidavit does not deny or dispute the findings of the High Court. He does not say that the writ petition was not filed at the instance of the appellant herein. It is not in dispute that although the appellant was not a party in the writ petition the order of transfer passed against him dated 10.3.1997 was the subject matter thereof and an interim order had been passed by the Division Bench of the High Court. The fact that he derived benefit of the said interim order is not denied or disputed. The fact that he filed two applications, one for imp leading himself as a party in the pending writ proceeding and another for an interim order purported to be for implementing the order of the Chief Commissioner dated 08.05.1997 also stands admitted.\n20.  We may recall that the original writ petitioner also filed a similar application. The High Court arrived at its conclusion not only on the basis of the report of the Central Bureau of Investigation which, inter alia, contains the statements of the clerk of Shri S. Ramchandra Rao, Advocate and his involvement in filing the application and taking the same back from the Registry which is borne out of the return register maintained by the Registry but also the detailed reports submitted by the Registrar (Judicial) before the High Court from time to time as also other affidavits, sworn statements and other materials brought on record. As the finding of the High Court is to the effect that the appellant herein was the king pin of the entire episode and had engineered the entire game with a view to getting his order of transfer stayed is prima facie in nature, we do not find any reason to interfere therewith.\n21.  The writ petition and the contempt proceedings pending before the High Court were disposed of on the basis of the materials on record. The materials not only included affidavits of the parties as also that of the appellant but also the sworn statements of the writ petitioner and the Advocate appearing for the writ petitioner. In view of the fact that even the learned advocate appearing on behalf of the writ petitioner categorically stated that at the time of drawing of the writ petition the appellant was present, no fault with the findings of the High Court can be found out if reliance had been placed thereupon. The appellant had intervened in the writ applications as far back as on 22.5.1997. He, it will bear repetition to state, filed an application for grant of an interim relief. The same was pending and, thus, there cannot be any doubt whatsoever, having regard to the fact that the Central Bureau of Investigation was making enquiry; the appellant herein must be held to have been aware thereabout.\n22. His two applications were also pending and presumably pressed (as there is nothing on record to show that at any point of time, he intended to withdraw the same), and thus a presumption can be drawn to the effect that he/his advocate had been keeping a watch over the entire proceeding. Despite the same at no point of time the appellant wanted to cross-examine any witness. He never brought the fact to the notice of the court that a criminal case had also been filed against the Dy. S.P. of the C.B.I. allegedly for taking bribe. He allowed the proceedings before the High Court to go on. He sat on the fence. He, as has been noticed by the High Court, even could not be traced out for some time. Furthermore, he appeared to be on leave during the following period:\n\"1. 83 days EL from 3-4-1997 to 24-6-1997.\n2. 138 days EL from 26-6-1997 to 10-11-1997.\n3. 15 days EL from 11-11-1997 to 25-11-1997.\n4. 115 days Half-pay leave from 26-11-1997 to 29-4-1998.\n5. 32 days extraordinary leave from 30-4-1998 to 31-5-1998.\"\n23.  He, as noticed hereinbefore, filed application for regularisation of the said period of leave pursuant to or in furtherance of the observations made by the Chief Commissioner, Hyderabad in his order dated 08.05.1997.\n24.  The principles of natural justice, it is well-settled, cannot be put into a strait-jacket formula. Its application will depend upon the facts and circumstances of each case. It is also well-settled that if a party after having proper notice chose not to appear, he a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta (Dead) through LRs. and Others Vs. Asha Devi Gupta (Smt.) and Others [(2003) 7 SCC 492 2003 Indlaw SC 719] of which two of us (V.N. Khare, CJI and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held:\n\"29.The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby...\"\n25.  The principles of natural justice, it is well-settled, must not be stretched too far.\n26.  In any event, it is not a case where this Court should exercise its discretion in favour of the appellant. It is trite that in a given case, the Court may refuse to exercise its discretionary jurisdiction u/art. 136 of the Constitution. (See Chandra Singh and Others Vs. State of Rajasthan and Another [(2003) 6 SCC 545 2003 Indlaw SC 541] and State of Punjab & Ors. Vs. Savinderjit Kaur [JT 2004 (3) SC 4702004 Indlaw SC 227]\n27.  The scope of public interest litigation has recently been noticed by this Court in Guruvayoor Devaswom Managing Committee and Another vs. C. K. Rajan and others [(2003) 7 SCC 546 2003 Indlaw SC 633] holding:\n\"...Statutory functions are assigned to the State by the Legislature and not by the Court. The Courts while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers which, however, although does not mean that the Court shall not step-in in any circumstance whatsoever but the Court while exercising its power must also remind itself about the rule of self-restraint. The Courts, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory functionaries. It allows them to perform their duties at the first instance.\nThe court steps in by Mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of alternative remedy albeit is no bar to exercise jurisdiction u/art. 226 of the Constitution of India but ordinarily it will not do so unless it is found that an order has been passed wholly without jurisdiction or contradictory to the Constitutional or statutory provisions or where an order has been passed without complying with the principles of natural justice. (See Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others (1998) 8 SCC 1 1998 Indlaw SC 13).\nIt is trite that only because floodgates of cases will be opened, by itself may not be no ground to close the doors of courts of justice. The doors of the courts must be kept open but the Court cannot shut its eyes to the ground realities while entertaining a public interest litigation.\nExercise of self-restraint, thus, should be adhered to, subject of course to, just exceptions.\"\n(See also Maharashtra State Board of Secondary Education Vs. Paritosh Bhupesh Kumarsheth etc., AIR 1984 SC 1543 1984 Indlaw SC 322.)\n28.  The said decision has been followed in Chairman & MD, BPL Ltd. vs. S.P. Gururaja and Others [(2003) 8 SCC 567 2003 Indlaw SC 860], wherein it was noticed:\n\"Dawn Oliver in Constitutional Reform in the UK under the heading 'The Courts and Theories of Democracy, Citizenship, and Good Governance' at page 105 states:\n\"However, this concept of democracy as rights-based with limited governmental power, and in particular of the role of the courts in a democracy, carries high risks for the judges-and for the public. Courts may interfere in advisedly in public administration. The case of Bromley London Borough Council v. Greater London Council ([1983] 1 A.C. 768 , HL) is a classic example. The House of Lords quashed the GLC cheap fares policy as being based on a misreading of the statutory provisions, but were accused of themselves misunderstanding transport policy in so doing. The courts are not experts in policy and public administration-Jowell's point that the courts should not step beyond their institutional capacity (Jowell, 2000). Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH Vs. Secretary of State for the Home Department ([2002] EWCA Civ. 158 : [2002] 3 W.L.R. 344) and of Lord Nimmo Smith in Adams v. Lord Advocate (Court of Session, Times, 8 August 2002) in which a distinction was drawn between areas where the subject matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would undermine the rule of law. Government and public opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law.\"\nIn Onkarlal Bajaj and Others Vs. Union of India and Another [(2003) 2 SCC 673 2002 Indlaw SC 1577] it was observed:\n\"The expression 'public interest' or 'probity in governance', cannot be put in a straitjacket. 'Public interest' takes into its fold several factors. There cannot be any hard and fast rule to determine what is public interest the circumstances in each case would determine whether Government action was taken is in public interest or was taken to uphold probity in governance. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions.\nTherefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.\"\n29.  We are pained to see how the forum of public interest litigation is being abused. This Court recently had also the occasion to notice the same. (See Ashok Kumar Pandey Vs. State of West Bengal, 2003 AIR SCW 6105 2003 Indlaw SC 1010 and Dr. B. Singh Vs. Union of India and Others, 2004 AIR SCW 1494 2004 Indlaw SC 196).\n30.  For the reasons aforementioned, we do not find any merit in this appeal which is dismissed accordingly. No costs.\nAppeal dismissed.\n"}
+{"id": "850kEnydx9", "title": "", "text": "Inder Parkash Gupta v State Of Jammu & Kashmir & Ors.\nSupreme Court of India\n\n20 April 2004\nAppeal (civil) 3734 of 2002 With CA Nos.3735/2002, 3736/2002, 3737/2002, 3738/2002 and 3739/2002\nThe Judgment was delivered by : S. B. Sinha, J.\nINTRODUCTION:\n1.  These six appeals involving common questions of law and fact were taken up for hearing and are being disposed of by this common judgment.\nBACKGROUND FACTS:\n2. Under the Health Ministry of the State of Jammu and Kashmir there are two different departments, medical health and medical education. The employees working in those departments are borne on separate cadres. The Respondents 3 to 10 before the High Court were appointed as ad hoc lecturers in medicine in the medical education department by the State of Jammu and Kashmir. No recommendation of the Jammu and Kashmir Public Service Commission was obtained therefor. The said ad hoc appointments were set aside by this court in Jammu and Kashmir Public Service Commission Vs. Dr.Narender Mohan & Ors. reported in 1994 (2) SCC 630 1991 Indlaw SC 160 wherein the State was directed to refer the vacancies to the Commission and make appointments in terms of the recommendations made by it in that behalf. Pursuant thereto and in furtherance thereof, an advertisement was issued by the Commission for some posts of Lecturers on or about 8.3.1994 in the Health and Medical education department. The educational qualification prescribed therefor was \"M.D.(Medical/general medical) MCRF, FRCP. Speciality Board of Internal Medical (USA) or an equivalent qualification in the subject with experience as Registrar/Tutor/Demonstrator/Tutor or Senior Resident for a period of two years in the discipline of Medicine, in a teaching medical institution recognised by the Medical Council of India. The notification issued by the Public Service Commission further stipulated that the candidates who possessed any experience in the line, any distinction in sports/games, NCC activities should furnish certificate, along with the application, to that effect.\n3.  It is not in dispute that the appointment in the posts of Lecturers was governed by a statutory rule called Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 (for short, 1979 Rules; Rule 8 whereof reads thus:\n\"8. Method of recruitment: While making selections.-\n(1) to the posts in the teaching wing of the service, the Commission/ Department Promotion Committee shall have regard to the following, namely,-\n(a) Academic qualifications of the candidates;\n(b) Teaching experience;\n(c) Research experience; and\n(d) Previous record of work, if any.\"\n4.  The Public Service Commission, however, framed a rule in the year 1980, known as Jammu & Kashmir Public Service Commission (Business & Procedure) Rules, 1980 (for short, 1980 Rules ) although there did not exist any provision therefor. Rule 51 of 1980 Rules is as under:\n\"Rule 51. The assessment at an interview shall be based on the following principles:-\nA. Performance of the candidate in the viva voce test ...100 Marks\nB. Academic Merit-\n(i) Percentage of marks obtained in the basic (i.e., minimum qualification prescribed for the post ...25 Marks\n(ii) Higher qualification than the basic (minimum) prescribed for the post such as Diploma or Degree in the concerned Speciality/Superspeciality/ Subject/Discipline-\n(a) Diploma - 2 Marks) subject to\n(b) Degree - 5 Marks) a maximum of) 5 marks\nC. Experience acquired by the candidate in the concerned Speciality/ Superspeciality/Subject/Discipline\n(i) exceeding 1 year but not 2 years ...2 marks\n(ii)for excess 2 years - for every full year 1 mark subject to a total of 5 marks including those under (i)\nD. Sports/Game : Distinction in sports/games (i.e., representing a University, State or Region in any Sports/Games. ...3 Marks\nE. Distinction in NCC activities (i.e., having held the rank of Junior Under Officer or Senior under officer or having passed the top grade certificate examination of NCC). ...2 Marks\nTotal A to E...140 Marks\"\n5. The Commission interviewed the candidates in terms of Rule 51 aforementioned.\n6.  Upon taking the vice voce test and considering the materials on records, the public Service Commission made recommendations pursuant to or in furtherance whereof, the Respondent Nos.3 to 10 were appointed by the State.\nWrit Petitions before the High Court:\n7. Questioning the validity of the Rule 51 of 1980 and consequently the selection and appointment of the Respondents No.3 to 10, a writ petition was filed by Shri Inder Parkash Gupta, inter alia, contending therein that the Respondents No.3, 6 & 9 were not eligible to be considered for appointment to the said posts as they did not possess requisite experience of two years as Registrar/Tutor. It was further alleged that the Respondent No.10 at that time was overage. Further contention of the writ petitioner was that his research work, experience and publications had not been taken into consideration by the Commission. In particular, his higher qualification of D.M. had not been given due weightage.\n8.  It was also urged that keeping in view the decision of this Court in J & K Public Service Commission V. Dr. Narender Mohan [1994 (2) SCC 630 1991 Indlaw SC 160] wherein the appointments of Respondent Nos. 3 and 10 as ad hoc Lecturers have been quashed, the purported experience gained by them in the said capacity could not have been taken into consideration by the Commission. The selection made by the Commission was said to be arbitrary and illegal as the criteria laid down in Rule 51 of 1980 Rules had been applied to assess the merit and suitability of the candidates ignoring Rule 8 of 1979 Rules whereby and wherein eligibility criterion and method of recruitment were laid down.\n9.  A further contention was raised by the said writ petitioner to the effect that 100 marks earmarked for viva voce test in Rule 51 is unreasonable and excessive.\n10.  The State of Jammu & Kashmir did not file any counter affidavit but Public Service Commission did. The private respondents also filed their counter affidavits.\n11.  The writ petition having regard to the importance of the questions involved was referred to a Full Bench for its decision. The Full Bench by its judgment dated 30.7.1999 passed in SWP No.211 of 1994, for all intent and purport accepted the major contentions raised on behalf of the writ petitioner/appellant holding:-\n\"1. The Commission has the competence and jurisdiction to frame rules for conducting its business such as Rules 1980;\n2. Rule 51 of Rules 1980 should be re-framed by the Commission in accordance with the observations made in the course of this judgment.\n3. The selection of selected candidates made by the Commission is not disturbed subject to the relief granted to the petitioner;\n4. The petitioner shall be treated to have been selected and placed in the select panel above respondents 3 and 9 who in turn shall be the selected candidates in the select panel after respondent no.4 and the petitioner. The petitioner shall further be entitled to all consequential service benefits.\"\n12.  The writ petitioner, Inder Parkash Gupta has filed an appeal thereagainst which has been marked as C.A.No.3734/2002 and the State has filed an appeal which has been marked as 3736/2002.\n13.  One Dr. Vinay Rampal who was not a party in the writ petition has filed an appeal which has been marked as C.A.No.3735 of 2002 against the judgment.\n14.  An order of Jammu & Kashmir High Court passed by a learned single Judge dated 5.5.1997 in a batch of writ petitions which were disposed of following the Full Bench decision of this Court is the subject matter of other three appeals. A further contention was raised in the said writ petitions to the effect that even assuming Rule 51 of 1980 Rules to be valid, as it prescribed certain marks to be allotted, the same should be allotted to the superspeciality post which the concerned person had been holding and not his experience in any other capacity. The said appeals are marked as Civil Appeal Nos.3737/2002, 3738/2002 and 3739/2002.\n15.  It is not in dispute that the Public Service Commission proposed a select list of 16 candidates for appointment. Dr. Inder Parkash Gupta's name appeared at Sl.No.13 therein. The private respondents whose names appeared at Sl.No.3 to 10 of the select list were appointed. Two posts were kept in abeyance as the matter regarding reservation was pending before the State Government.\n16.  It, however, stands admitted that during the pendency these appeals the proceedings the State of Jammu & Kashmir issued a notification dated 22.5.2002 whereby and whereunder the appellant herein Inder Parkash Gupta was given promotion in terms of the judgment of the High Court but the same had been applied prospectively and without giving any monetary and seniority benefits to Shri Gupta.\nHigh Court Judgment:\n17. The High Court having regard to the pleadings of the parties and submissions made before it formulated the following questions:-\n\"1. Whether the Commission has the competence and jurisdiction to frame the Jammu and Kashmir Public Service Commission (Conduct of business and Procedure) Rules, 1980?\n2. Whether the selection made applying criteria prescribed under Rule 51 of the Rules (supra), has the effect of ignoring Rule 8 of the Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979, which prescribes the statutory method of recruitment to the posts in teaching wing?\n3. Whether the experience as ad hoc lecturer can be counted as experience gained as Registrar/ Tutor, Demonstrator/Tutor or Senior Resident/Tutor to meet the requirement of statutory eligibility condition to seek consideration for selection and appointment as lecturer?\n4. Whether 100 marks earmarked for viva voce test and 40 marks for record as per the criteria contained in rule 51 (supra), are excessive and capable of turning the merit into demerit in view of the judgments of the Supreme Court and thus Rule 51 needs re-consideration?\n5. Whether the selection of respondents 6 to 10 and particularly of respondents 3,6,9 & 10 is bad being not in accordance with the statutory method of selection and is also the result of arbitrary selection?\"\n18.  As regard question No.1, it was answered in the negative stating that although no such power is expressly conferred upon the Commission but proceeded to hold that the Commission had the competence and jurisdiction to frame such regulatory procedural rules for conduct of its own business and this power is impliedly granted by the enactment. As regard question No.2, the High Court was of the opinion that Rule 8 of 1979 Rules prevailed over Rule 51 of 1980 Rules holding that no additional qualification can be attached or added to the prescribed eligibility qualification or method of selection by the Commission holding:-\n\"Thus, the Commission has not properly followed and applied the method of selection relating to the service, while making selection, prescribed under rule 8 of Rules 1979.\"\n19.  As regard the eligibility of the Respondents 3, 6 & 9, the High Court noticed that the said respondents did not possess requisite experience observing that the Commission did not specifically explain as to how these Respondents were said to have possessed two years experience as Registrar, Demonstrator or a Senior Resident. It was held:-\n\"Respondent No.3 Dr. Jaipal Singh, is having experience as Registrar only of 22 months whereas Respondent No.9 Dr. Jatinder Singh is having experience of 20 months 27 days which is less than two years.\"\n20.  As regard the question No.4, the High Court answered the same in the affirmative relying on various decisions of this Court. It was held that in Engineering Service there is no such rule providing statutory method of selection as is found in Rule 8 of 1979 Rules holding:-\n\"Rule 51 providing 100 marks for viva voce against 40 for record, makes a departure and is apparently contrary to the law laid down by the Supreme Court and necessitates re-consideration of Rule 51 for the added reason that there is no consensus of judicial opinion rendered in Abdul Wahid Zargar's case vis-vis the judgments of the Supreme Court that marks for viva voce test could exceed the marks assigned for record/academic merit, where the selection is made on the basis of interview alone. There is another reason also that Rule 51 has not taken care of Rule 8 of Service Rules 1979, consequence whereof is that the statutory method of selection has not been comprehensively followed and adopted in the rule. For these reasons Rule 51 is required to be recast.\"\n21.  While answering question No.5, the High Court noticed that no marks had been assigned for the research experience, publications or previous record of work, which could not be ignored as there was a statutory obligation upon the Commission to make selection according to the statutory rules governing the service and further noticing that the Respondent Nos.4, 5 & 7 (namely, Masood Tanvir Bhat, Samia Rashid and Parvez Ahmed Shah) could not secure any mark out of the 15 marks as they did not possess the requisite research experience etc. and were not found entitled thereto but despite the same had been selected as higher marks were allotted to them in the viva voce test. It was held:-\n\"It is established from the record that the selection has been based upon 15 marks for record (as 25 marks could not be utilised) and 100 marks for interview. The claim of the respondent-Commission that 40 marks have been taken into consideration for record while applying Rule 51, is not forthcoming from the record maintained by the Commission.\nThe Petitioner is admittedly possessed of the higher qualification and record of research experience, publications etc. in comparison to the other selected candidates. Respondents 3 and 9 are not having any such record. The petitioner has been assigned minimum marks in the viva voce which has down-graded him in the merit list of the candidates supplied to the court even though he is D.M. The Commission has turned the merit of the petitioner into de-merit by giving minimum marks...\"\n22.  Despite such findings, the High Court refused to set aside the entire selection on the premise that the same had been made long ago and one of the respondents had been promoted and proceeded to dispose of the writ petition with the directions as noticed hereinbefore.\nSubmissions:\n23. Mr. Ranjit Kumar, learned counsel appearing on behalf of the appellant would submit that Rule 51 of 1980 Rules framed by the Public Service Commission is not statutory in nature. He would urge that keeping in view the advertisement issued, the Commission was bound to scrupulously comply with the requirements as regard qualification etc. and should have strictly applied Rule 8 of 1979 Rules which is admittedly statutory in nature. The Learned Counsel would further contend that as the Commission had no jurisdiction to frame such rules, the same should have been declared ultra vires by the High Court. Mr. Ranjit Kumar would urge that Section 133 of the Jammu and Kashmir Constitution which is in pari materia with Article 320 of Constitution of India clearly provides that only in certain situations the Governor can frame regulations as a result whereof the necessity to consult the Commission may be done away with. The Rules framed by the Public Service Commission does not also satisfy the test laid down in the proviso appended to Section 133 of the State Constitution or for that matter Article 320 of the Constitution of India and in any event the same having not been laid before the Legislature as is mandatorily required under sub-section (4) thereof, the selection held pursuant to or in furtherance of Rule 51 of 1980 Rules must be held to be wholly illegal and without jurisdiction.\n24.  The Learned Counsel Kumar would argue that having regard to the findings arrived at by the High Court, the writ petition could not have been disposed of in the manner as was sought to be done inasmuch as some of the private respondents admittedly did not have the requisite qualification or experience to be appointed. Merit of the appellant, it was contended, having admittedly been turned into demerit as was found by the High Court, relief by way of solace given to the appellant by placing him respondent No.6 & 9 must be held to be insufficient and he, in any event, deserved to be placed above some other respondents in view of the fact that he had not been assigned 5 marks for higher qualification. In any view of the matter, awarding of 100 marks in viva voce examination out of the total 115 marks (as no marks have been awarded for academic merit) was bad in law.\n25.  The learned counsel would further submit that as some of the respondents did not have two years' experience and as admittedly Respondents No.3 to 5 did not have any higher qualification, there was no reason as to why the entire selection was not set aside. Lapse of time in selection of the candidates may not itself be sufficient ground to uphold his selection, the learned counsel would urge, having regard to the seniority of the petitioner and further having regard to the fact that all the private parties being in the service of the State, they could only be reverted back to their parent departments and would not be out of job.\n26.  Mr. Anis Suhrawardy, learned counsel appearing on behalf of the State of Jammu and Kashmir, on the other hand, would submit that keeping in view the fact that appellant Inder Parkash Gupta had already been promoted and furthermore in view of the subsequent event this Court should not interfere in the matter.\n27.  No submission was made on behalf of any other parties to the appeals.\nAnalysis:\n28. Section 133 of the Jammu & Kashmir Medical (Gazetted) Service Recruitment Rules, 1979 admittedly were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari materia with Article 309 of the Constitution of India. The said rules are statutory in nature. Public Service Commission is a body created under the Constitution. Each State constitutes its own Public Service Commission to meet the Constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the Constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of short-listing, it can lay down its own procedure. The Commission, however, must lay down the procedure strictly in consonance with the statutory rules. It cannot take any action which perse would be violative of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of short-listing, the Commission cannot fix any kind of cut off marks. [See State of Punjab & Ors. vs. Manjit Singh and Ors. [2003 (11) SCC 559 2003 Indlaw SC 766].\n29.  Rule 8 mandates that while selecting the teaching wing of the service, the Commission must have regard to the academic qualification of the candidate, teaching experience, research experience and previous record of work, if any.\n30.  Rule 8 does not speak of any viva voce test. It, however, appears that so far as academic qualification is concerned, the same had been laid in the advertisement and the requirement of M.D. (Medical/General Medical), MCRF, FRCP, Speciality Board of Internal Medicine (USA) or an equivalent qualification of the subject. So far as the teaching experience is concerned, two years experience as Registrar/Tutor/Demonstrator/Tutor or a Senior Resident in the discipline of medicine in a recognised teaching medical institution recognised by the Medical Council of India was specified.\n31.  So far as the teaching experience is concerned, the Commission awarded marks to those who had even less than two years experience. One mark was to be awarded for every full year of experience subject to a total of 5 marks. Sports/Games distinction in NCC activities had also been taken into consideration which were not the criterion prescribed under the 1979 Rules. There is nothing to show that any mark was awarded in relation to the previous record of work, if any.\n32.  In its judgment, the High Court did notice that in awarding marks for minimum qualification prescribed for the post, the Commission did not award any mark at all to some respondents. It, therefore, for all intent and purport had considered the candidatures of the candidates only on the basis of 110 marks. If the marks awarded for sports/games and NCC activities are excluded as they are beyond the purview of Rule 8; and as it fixed 100 marks for viva voce test, a clear case of breach of the Statutory Rules had been made out. While the appellant had been given minimum marks in the viva voce test, the other respondents who even did not fulfill the requisite criterion were awarded higher marks.\n33.  The High Court, in our opinion, was correct in holding that Rule 51 providing for 100 marks for viva voce test against 4o for other criteria is contrary to law laid down by this Court. [See Union of India and Anr. Vs. N.Chandrasekharan & Ors. [ AIR 1998 SCC 795 1998 Indlaw SC 1942 ], Indian Airlines Corporation Vs. Capt. K.C. Shukla & Ors. [1993 (1) SCC 17 1992 Indlaw SC 636], Anzar Ahmad Vs. State of Bihar and Ors. [ 1994 (1) SCC 150 1993 Indlaw SC 1366] and Satpal and Ors. Vs. State of Haryana and Ors.]\n34.  It is true that for allocation of marks for viva voce test, no hard and fast rule of universal application which would meet the requirements of all cases can be laid down. However, when allocation of such mark is made with an intention which is capable of being abused or misused in its exercise, it is liable to be struck down as ultra vires Article 14 of the Constitution of India. [See Jasvinder Singh & Ors. Vs. State of J & K and Ors.[2003 (2) SCC 132 2002 Indlaw SC 1527], Vijay Syal and Anr. Vs. State of Punjab and Ors. [2003 (9) SCC 4012003 Indlaw SC 484].\n35.  It is also trite that when there is requirement of consultation, in absence of any statutory procedure, the competent authority may follow its own procedure subject to the conditions that the same is not hit by Article 14 of the Constitution of India. [See Chairman & MD, BPL Ltd. Vs. S.P.Gururaja and Ors. [2003 (8) SCC 567 2003 Indlaw SC 860]\n36.  We would proceed on the assumption that the Commission was entitled to not only ask the candidates to appear before it for the purpose of verification of records, certificates of the candidates and other documents as regards qualification, experience etc. but could also take viva voce test. But marks allotted therefor should indisputably be within a reasonable limit. Having regard to Rule 8 of 1979 Rules higher marks for viva voce test could not have been allotted as has rightly been observed by the High Court. The Rules must, therefore, be suitably recast.\n37.  The High Court assigned sufficient and cogent reasons in support of its conclusions which have been noticed by us hereinbefore. We agree with the said reasonings.\n38.  The only question which survives for consideration is what would be the meaning of the 'post' contained in Rule 51 (b)?\n39. In our opinion, a higher qualification than the basic (minimum) prescribed for the post would evidently mean the department of superspeciality for which the appointment was made and not any other superspeciality.\nConclusions:\n40.  Having held so, the question which remains to be determined is as to what relief should be granted to appellant herein.\n41.  While issuing the Notification dated 22.5.2002 the State evidently did not fully comply with the judgment of the High Court. The appellant in view of the judgment of the High Court was not only entitled to be placed in the select panel above Respondent Nos.3 and 9 but also should have been given all consequential service benefits which would include monetary benefits, seniority etc.\n42.  In ordinary course we would have allowed the appeal but we cannot lose sight of the fact that the selections had been made in the year 1994. A valuable period of 10 years has elapsed. The private respondents have been working in their posts for the last 10 years. It is trite that with a view to do complete justice between the parties, this Court in a given case may not exercise its jurisdiction under Article 136 of the Constitution of India. [See Chandra Singh and Ors. Vs. State of Rajasthan and Anr. [ 2003 (6) SCC 545 2003 Indlaw SC 541], M.P.Vidyut Karamchari Sangh Vs. M.P. Electricity Board [ JT 2004 (3) SC 423 2004 Indlaw SC 198] and State of Punjab & Ors. Vs. Savinderjit Kaur\n43.  We are, therefore, of the opinion that the interest of justice would be subserved if the State is directed to fully comply with the directions of the High Court by giving all benefits to the appellant herein including monetary benefits and seniority by placing him in the select list above Respondents 3 and 9. We further direct that if any respondent has been promoted to the higher post in the meantime the same would be subject to our aforementioned direction. Necessary order in this behalf must be passed by the State.\n44.  These appeals are disposed of accordingly. The cost of the appellant herein shall be borne by the State of Jammu and Kashmir quantified at 10,000; we hope and trust that the State of Jammu and Kashmir as also Jammu and Kashmir Public Service Commission shall make all endeavours to see confidence in the Statutory Bodies restored, and they would henceforth comply with legal requirements strictly and scrupulously.\nAppeals disposed of\n"}
+{"id": "FVr9Qh8yXv", "title": "", "text": "P. Ram Reddy and Others v Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others\nSupreme Court of India\n\n27 January 1995\nC.As. Nos. 1037-39 of 1995 (From the Judgment and Order Dt. 19 April 1993 of the Andhra Pradesh High Court in A. Nos. 1565 and 2087 of 1991)\nThe Judgment was delivered by : Hon'ble Justice N. Venkatachala\n1. Having granted leave to appeal sought for in the above Special Leave Petitions directed against the common judgment and decree dated 19.4.1993 rendered in Appeal Nos. 1565 and 2087/91 by the High Court of Andhra Pradesh at Hyderabad and heard arguments of learned counsel appearing for the contesting parties in the appeals, we propose to dispose of all these appeals by this common judgment.\n2. Sri P. Ram Reddy, the appellant in appeals arising out of S.L.P's. Nos. 1336263/93 and respondent in appeal arising out of S.L.P. No. 18202/93, to be referred to hereinafter as 'the claimant', was the owner in possession of dry land of, as large an extent as, IO acres 17 guntas comprised in Survey Nos. 48/24 and 48/26 of Katedhan Village lying in the outskirts of Hyderabad. One acre 25 guntas of land out of 5 acres 22 guntas of land in Survey No. 48/24 and 2 acres 15 guntas of land out of 4 acres 35 guntas of land in Survey No. 48/26 were the lands included in the total extent of 14 acres and 35 guntas of land proposed to be acquired by Hyderabad Urban Development Authority -\"HUDA\" for formation of inner ring road required to connect Old Karnool Road with Hyderabad-Bangalore National Highway No.7, under Land Acquisition Act, 1894 as amended by Act 68 of 1994 -- 'the L.A. Act', by a Notification u/s. 4(1) thereof, published in the modes prescribed thereunder, by issuance of public notice in the locality on 2.9.1985. The acquisition of the said lands having been completed by a declaration made and published u/s. 6 of the LA Act, notice u/s. 9 was issued to the claimant calling upon him to make his claim for compensation of the acquired land before the Land Acquisition Officer of the HUDA -hereinafter to be referred to as \"the LAO\". In response to the said notice, the claimant claimed award of compensation by the LAO for his acquired lands at the rate of Rs. 1 50/- per square yard apart from the statutory benefits which he was entitled to get under the LA Act. The LAO, by his award made under Section II of the LA Act, determined the market value of the claimant's acquired land at Rs. 12 per square yard and awarded to him the amount of compensation together with statutory benefits. Since that award of the LAO was unacceptable to the claimant, he made an application to the LAO u/s. 18 of the LA Act and got the application referred to the Court of the Subordinate Judge, Ranga Reddy District -- \"Civil Court\", for determination of the just compensation payable to him. On that reference registered as A.S. 129/88, the Civil Court held the inquiry as required by the LA Act and on the basis of the inquiry so held, determined the market value of the claimant's lands at Rs.80 per square yard and accordingly made an award and decree dated 18.4.1991 together with the statutory benefits. That award and decree being appealed against in the High Court by the claimant and the LAO respectively in A.S. No. 1565/91 and A.S. No.2087/ 91, the former seeking grant of further enhanced compensation and the latter seeking reduction in the granted compensation. Both the appeals being clubbed together and heard by the Division Bench of the High Court, the market value of the claimant's land was reduced to Rs. 32 per square yard with proportionate reduction in the statutory benefits, by its common judgment and decree rendered on 19.4.1993. While the claimant questioned the correctness of the said judgment and decree of the High Court by filing appeals arising out of S.L.P's. Nos. 13362-13363/ 93, the LAO challenged the correctness of the same judgment and decree by filing appeal arising out of S.L.P. No. 18202/93, as stated at the outset. The above stated facts make it clear that the LAO, by his award (Ex.B-1) fixed the value of the acquired land at Rs.20 per square yard on the basis of the value fetched by sale of residential building plots at Rs. 20 per square yard under Sale Deed dated 14.10.1982whereunder 200 square yards of plot in Survey No.48/13 of Katedhan Village was sold at Rs. 20 per square yard (Ex. B-3); sale deed dated 16.10.1982 whereunder 200 square yards plot in Survey No. 48/14 was sold at Rs. 20 per square yard (Ex.B-4), and Sale Deed dated 1.2.1983 whereunder 200 square yards plot in Survey No. 48/12 had been sold at Rs.20 per square yard, Ex.B-5. However, he fixed the market value of the acquired land at Rs. 12 per square yard by deducting 40% area towards lay-out losses. He granted statutory benefits also payable for the acquired land. It also becomes clear from that award that the sale deeds were seen and the local inspection had been held by the LAO before making that award.\n3. The Civil Court by its judgment and decree, which is referred to by us earlier, enhanced the market value of the acquired land to Rs. 80 per square yard relying upon the amounts of consideration mentioned under sale deeds and gift deeds (Exs. A-1 to A-5) and also the probable value of building plots in the locality of the acquired lands mentioned in Ex. A6 - the extract of Basic Valuation Register, after making certain percentage of deduction out of such amount or value towards what is called as \"lay-out losses\".\n4. When that award and decree of the Civil Court was challenged in the High Court,it was found by the High Court that Exs. A-1 to A-5, the Sale Deeds and Gift Deeds were unreliable and could not be acted upon by it for the reasons it gave in that regard. It also refused to place any reliance on Ex.A-6, the Basic Valuation Register extract, on its view that it was not safe to determine the market value of lands acquired under the LA Act on the value found in Basic Valuation Register. However, it found that the value of Rs.20 per square yard, on which the LAO had determined the market value of the acquired lands, was on the lower side for determining the market value of that land. Consequently, it increased the value of Rs.20 per square yard relied upon by the LAO by another Rs.20 per square yard. Thereafter, the High Court deducted 20% towards lay- out losses out of Rs.40 per square yard and determined the market value of the acquired lands at Rs.32 per square yard. Therefore, it rendered its judgment and decree in the appeals by reducing the market value of the acquired lands from Rs.80 per square yard awarded by the Civil Court to Rs.32 per square yard of the claimant's acquired land of 4 acres and 3 guntas and granted in addition 30% solatium on the market value, 12% additional amount on such market value from the date of the notification i.e. 24.7.1985 till the date of the award i.e. 14.7.1988 and interest on the enhanced amount of compensation u/s. 28 of the LA Act.\n5. Shri P.P. Rao, learned Senior Counsel, who appeared before us for the claimant, raised several contentions against the correctness of the judgment and decree of the High Court. He contended, firstly, that the High Court had failed to take into consideration the very statement of the LAO made in his award that the acquired land had high potentiality for developing into a Housing Colony, in determining its market value of the acquired land and that non-consideration had resulted in reducing the market value of the acquired lands instead of enhancing their market value; secondly, when the Civil Court had determined the market value of the acquired land of the claimant at Rs.80 per square yard on the basis of amounts of consideration of building plots mentioned under Exs. A-1 to A-3 (Sale Deeds) and Exs. A2, A-4 and A-5 (Gift Deeds) and Ex. A-6, Basic Valuation Register extract, it should not have rejected Exs. A-1 to A-6 themselves as unreliable documentary evidence for fixing the market value of the acquired land; thirdly, when the Civil Court had determined the market value of the acquired land of the claimant at Rs.80 per square yard on the basis of the amounts of consideration mentioned in Exs. A-1 and A-3 (Sale Deeds) and Exs. A-2, A-4 and A-5 (Gift Deeds), and Ex. A-6 (Basic Valuation Register extract), the High Court should not have rejected Exs. A-1 to A-6 themselves as unreliable documentary evidence for fixing the market value of the acquired land, particularly, when nothing damaging was elicited in the cross-examination of the witnesses who had spoken about those documents; fourthly, when the High Court had held that the Sale Deeds, Exs. B-3 to B-5, the Certified copies of the Sale Deeds produced in evidence on behalf of the LAO had not been proved by examination of the witnesses connected with them, it could not have determined the market value of the acquired land on the basis of the value of land fixed by the LAO at the rate of Rs.20 per square yard particularly when that rate was referable to value of the plots of land sold under Ex. B-3 to B-5, marked in evidence u/s. 51 of the LA Act; fifthly, when the High Court had doubled the value of plots fetched under Ex. B-3 to B-5 for arriving at the correct market value of the acquired land, it could not have determined the market value of the acquired land at Rs.32 per square yard, by deducting 20% out of it towards lay-out losses; and lastly, that the High Court had committed an error in not granting the amount calculated at the rate of 12% per annum payable u/s. 23(1A) of the LA Act on the market value of the acquired land from the date of the preliminary Notification till the date of taking possession of the lands.\n6. Shri G. Prabhakar, the learned counsel, who appeared before us for the LAO, while refuting the contentions raised for the claimant, submitted that although the High Court had held that the Sale Deeds, Ex. B-3 to B-5 had not been proved by examination of witnesses connected with them, the High Court could not be found fault with, for fixing the market value of the acquired land on the basis of the award of the LAO based on Exs. B-3 to B-5 when the claimant's evidence adduced in disproof of that award had not been accepted by it (the High Court). It was further submitted by him that the High Court could not have doubled the rate of Rs. 20 per square yard fixed as the value of the acquired land by the LAO when it had not adverted to the basis on which the value was so doubled. The High Court, it was also submitted by him, was not right in granting the amount in addition to the market value u/s. 23 (IA) of the LA Act, in the manner in which it had done. It was lastly submitted by him that the market value of the acquired land determined by the High Court calls to be reduced to the level of the market value of such land determined by the LAO and such market value should form the basis for grant of statutory benefits under the L.A. Act.\n7. In view of the aforesaid contentions and submissions of learned counsel for the contesting parties, the questions which require to be considered and answered in deciding the appeals, could be formulated thus :\n8. Whether the building potentiality of a land acquired under the LA Act requires to be taken into consideration in determining its market value, and if so, how has that to be done ?\n9. Whether the value of building plots as found in the Basic Valuation Register maintained under the Stamp Act or its Rules, could form the basis for determination of the market value of lands acquired under the LA Act ?\n10. Whether the value of land mentioned in an instance of sale or an instance of gift claimed to compare with the acquired land warrants acceptance as the correct value of such land merely because the witnesses who will have given evidence as regards them, on behalf of the claimants had not been cross- examined or effectively crossexamined on behalf of the L.A.O.?\n11. Whether the value fetched by sale of a small extent of land can be made the basis for determination of the market value of a large extent of the acquired land ?\n12. Will it not be open to a Court which rejects the evidence adduced by the claimant in support of his claim for enhanced compensation for his acquired land made in a reference u/s. 18 of the LA Act, to rely upon the contents of the award of the LAO made u/s. 11 thereof to enhance the compensation awardable for such land ? If the LAO's award is based on value fetched under sale deeds on their perusal as contained in the registers maintained under the Registration Act, has he to prove those sale deeds in Court for sustaining his award ?\n13. What is the amount which could be awarded u/s. 23 (1-A) of the LA Act, in addition to the market value of the acquired land ?\n14. Does the market value in respect of which solatium is awardable u/s. 23(2) of the LA Act include the amount payable u/s. 23 (1-A) of the LA Act ?\n15. What is the amount of compensation awardable for the lands of the claimant acquired under the LA Act which could be regarded as just and reasonable?\n16. We shall now proceed to consider and answer the said questions seriatum.\nRe: Question (1)\n17. Building Potentiality of acquired land Market value of land acquired under the LA Act is the main component of the amount of compensation awardable for such land u/s. 23(1) of the LA Act. The market value of such land must relate to the last of the dates of publication of Notification or giving of public notice of substance of such Notification according to s. 4(1) of the LA Act. Such market value of the acquired land cannot only be its value with reference to the actual use to which it was put on the relevant date envisaged under s. 4(1) of the LA Act, but ought to be its value with reference to the better use to which it is reasonably capable of being put in the immediate or near future. Possibility of the acquired land put to certain use on the date envisaged under s. 4(1) of the LA Act, of becoming available for better use in the immediate or near future, is regarded as its potentiality. It is for this reason that the market value of the acquired land when has to be determined with reference to the date envisaged under s. 4(1) of the LA Act, the same has to be done not merely with reference to the use to which it was put on such date, but also on the possibility of it becoming available in the immediate or near future for better use, i.e., on its potentiality. When the acquired land has the potentiality of being used for building purposes in the immediate or near future it is such potentiality which is regarded as building potentiality of the acquired land.\n18. Therefore, if the acquired land has the building po- tentiality, its value, like the value of any other potentiality of the land should necessarily be taken into account for determining the market value of such land. Therefore, when a land with building potentiality is acquired, the price which its willing seller could reasonably expect to obtain from its willing purchaser with reference to the date envisaged under s. 4(1) of the LA Act, ought to necessarily include, that portion of the price of the land attributable to its building potentiality. Such price of the acquired land then becomes its market value envisaged u/s. 23(1) of the LA Act. If that be the market value of the acquired land with building potentiality, which acquired land could be regarded to have a building potentiality and how the market value of such acquired land with such building potentiality requires to be measured or determined are matters which remain for our consideration now.\n19. An acquired land could be regarded as that which has a building potentiality, if such land although was used on the relevant date envisaged under s. 4(1) of the LA Act for agricultural or horticultural or other like purposes or was on that date even barren or waste, had the possibility of being used immediately or in the near future as land for putting up residential, commercial, industrial or other buildings. However, the fact that the acquired land had been acquired for building purposes, cannot be sufficient circumstance to regard it as a land with building poten- tiality, in that, u/cl. (4) of s. 24 of the LA Act that any increase to the value of land likely to accrue from the use to which it will be put when acquired, is required to be excluded. Therefore, wherever, there is a possibility of the acquired land not used for building purposes on the relevant date envisaged u/s. 4(1) of the LA Act, of being used for putting up buildings either immediately or in the near future but not in the distant future, then such acquired land would be regarded as that which has a building potentiality. Even so, when can it be said that there is the possibility of the acquired land being used in the immediate or near future for putting up buildings, would be the real question. Such possibility of user of the acquired land for building purposes can never be wholly a matter of conjecture or surmise or guess. On the other hand, it should be a matter of inference to be drawn based on appreciation of material placed on record to establish such possibility. Material so placed on record or made available must necessarily relate to the matters such as :\nthe situation of the acquired land vis-a-vis, the city of the town or village which had been growing in size because of its commercial, industrial, educational, religious or any other kind of importance or because of its explosive population;\n(a) the suitability of the acquired land for putting up the buildings, be they residential, commercial or industrial, as the case may be;\n(b) possibility of obtaining water and elec- tric supply for occupants of buildings to be put up on that land;\n(c) absence of statutory impediments or the like for using the acquired land for building purposes;\n(d) existence of highways, public roads, layouts of building plots or developed resi- dential extensions in the vicinity or close proximity of the acquired land;\n(e) benefits or advantages of educational institutions, health care centres, or the like in the surrounding areas of the acquired land which may become available to the occupiers of buildings, if built on the acquired land; and\n(f) lands around the acquired land or the acquired land itself being in demand for building purposes, to specify a few.\n20. The material to be so placed on record or made available in respect of the said matters and the like, cannot have the needed evidentiary value for concluding that the acquired land being used for building purposes in the immediate or near future unless the same is supported by reliable documentary evidence, as far as the circumstances permit. When once a conclusion is reached that there was the possibility of the acquired land being used for putting up buildings in the immediate or near future, such conclusion would be suf- ficient to hold that the acquired land had a building potentiality and proceed to determine its market value taking into account the increase in price attributable to such building potentiality.\n21. Then, comes the question of determining the market value of the acquired land with building potentiality. Undoubt- edly such market value of the acquired land with building potentiality comprises of the market value of the land having regard to the use to which it was put on the relevant date envisaged u/s. 4(1) of the LA Act plus the increase in that market value because of the possibility of the acquired land being used for putting up buildings, in the immediate or near future. If there is any other land with building potentiality similar to the acquired land which had been sold for a price obtained by a willing seller from a willing purchaser, such price could be taken to be the market value of the acquired land, in that, it would have comprised of the market value of the land as was being actually used plus increase in price attributable to its building potentiality. If the prices fetched by sale of similar land with building potentiality in the neighbourhood or vicinity of the acquired lands with building potentiality, as on the relevant date envisaged u/s. 4(1) of the LA Act, are unavailable, it becomes necessary to find out whether any building plots laid out in a land similar to the acquired land had been sold by a willing seller to a willing buyer on or near about the relevant date u/s. 4(1) when the acquired land had been proposed for acquisition and then to find out what would be the price which the acquired land would have fetched if had been sold by making it into building plots similar to those sold. In other words, an hypothetical lay- out of building plots in the acquired land similar to that of the layout of building plots actually made in the other similar land, has to be prepared, and the price fetched by sale of building plots in the lay-out actually made should form the basis for fixing the total price of the acquired land with building potentiality, to be got if plots similar to other plots had been made in the latter land and sold by taking into account plus factors and minus factors involved in the process.\n22. Prices fetched by sales of building plots which may become available could be of building plots in either a fully developed layout of building plots or in an un- developed layout of building plots, situated in the vicinity of the acquired land with building potentiality. If the market value of the acquired land with building potentiality has to be fixed on. the basis of the evidence of the said prices, the first thing required to be done is to prepare a hypothetical layout of building plots of the acquired land itself Then, how much of land out of the acquired land becomes available to be made into plots similar to those in the developed layout of building plots or in the undeveloped layout of building plots has to be found out. If the building plots which so become available were to be sold at the prices at which the building plots in the developed layout of building plots or undeveloped layout of building plots could have been sold on the date envisaged in s. 4(1) of the Act, what would be the total amount of such prices which could have been ob- tained has to be seen. Then, what could have been the losses suffered or expenses incurred for getting such total amount has to be found out. The market value of the acquired land with building potentiality, can then be regarded as the total amount of the prices of sales of all the building plots envisaged in the hypothetical layout of building plots in the acquired land minus the losses which could have been suffered or expenses which could have been incurred in making the hypothetical layout of building plots in the acquired land on par with the developed layout of building plots or the undeveloped layout of building plots, as the case may be. If losses to be suffered or expenses to be incurred for making a layout of building plots in the acquired land with building potentiality for purposes of selling such building plots at the prices to be fetched by similar building plots in the developed layout of building plots or in the undeveloped layout of building plots are to be found out, the losses which might have been suffered or expenses which might have been incurred by the owners of the lands of either of a developed layout of building plots or of an undeveloped layout of building plots, in making such lay outs, could prove to be the best evidence. The evidence of losses suffered or expenses incurred in having made a layout of building plots may relate to lands lost for laying roads, drains, sewerages, parks etc., costs incurred in the making of roads, drains, sewerages, providing water supply, electric supply, losses on investments and paying of conversion charges, development charges etc. in a developed layout or an undeveloped layout in which building plots had been laid and sold and which sales form the basis for determining the market value of the acquired land. If evidence to be adduced in the said regard is of public authorities or local boards or private developers who will have formed such layouts of building plots in the lands in the neighbourhood of the acquired land and sold them, it could be of great value. No difficulty arises when all the materials needed to determine the market value of the acquired land with building potentiality on the basis of a hypothetical layout of building plots to be formed in respect of it is made available to the Court, so as to enable it to find out the possible market value of the acquired land with reference to the price to be fetched by sale of building plots to be made in such land. But, owners of the acquired land with building potentiality, rarely produce all the material or evidence needed for the Court to determine the market value of the acquired land with building potentiality on the basis of a hypothetical layout of building plots to be thought of by the Court in respect of such land, although they rely on the price fetched by sale of plots in a developed layout or an undeveloped layout for determining the market value of their lands with building potentiality in the vicinity of such layout. It is where, the Court may have to inevitably fix the market value of the acquired land with building potentiality on the basis of the prices got in the sale transactions relating to the building plots in a developed or an undeveloped layout, relied upon by the owners of the land, if such transactions are found to be genuine. A simple method, therefore, is evolved by courts in determining the market value of the acquired land with building potentiality with reference to the retail price to be fetched by sale of plots in a fully developed layout as on the date of publication of Notification under s. 4(1) of the Act In Bombay Improvement Trust v. Marwanji Manekji Mistry reported in AIR 1926 Bombay 420 1926 Indlaw MUM 114, the said method is referred to by Macleod, C.J. as that where the wholesale price of the acquired land with building potentiality could be fixed at one-third to one-half of the retail price fetched by sale of building plots in a developed layout of building plots, depending upon the nature of development taken place in such layout. Thus, when it becomes inevitable for the Court to fix the market value of the acquired land with building potentiality on the basis of the price fetched by sale of a building plot in a developed layout of building plots in the vicinity, it must, in our view, fix the wholesale market value of the acquired land with building potentiality at one-third to one-half of the retail price got by genuine sales of plots in a developed layout in the vicinity, by deducting two- thirds to one half out of the retail prices of plots, as losses or expenses involved in having made the land where the plots are formed as developed, according to the degree of development. For instance, if the retail price of plot is Rs. 12/- per square yard, the wholesale price of the acquired land with building potentiality could be fixed at rupees varying between Rs.4/- and Rs.6/- depending upon the nature of development found in the layout of the plot sold in retail. Coming to fixation of the wholesale price of the acquired land with building potentiality on the basis of retail price of a building plot sold out of an undeveloped layout of building plots, such wholesale price ought to be fixed by deducting at least one-third of the retail price of the building plot in such layout, because such would be the least loss to be suffered in forming a layout of building plots in the acquired land with building potentiality, after leaving out land for roads, drains etc. by obtaining the needed permissions from public authorities for making such layout. Therefore, the wholesale price of the acquired land could be fixed at Rs.8/- per square yard if the price fetched or to be fetched by sale of building plot in an un- developed layout is Rs. 12/-. However, in either of the said cases whether it be the determination of the market value of the acquired land with building potentiality with reference to the price fetched by sale of plots in a well developed layout in the neighbourhood or whether it be the determination of the market value of the acquired land with building potentiality with reference to the price fetched by sale of building plots in an undeveloped layout of building plots in the neighbourhood, it becomes inevitable for the Court to find out what will be the price fetched or to be fetched by the sales of plots in the layouts, relied upon by any of the parties with reference to the price which the plots could have fetched if sold on the date of the publication of the preliminary notification u/s. 4(1) of the Act. Further, where no evidence of price fetched by the sales of the plots in layouts of building plots in the neighbourhood of the acquired lands becomes available, then what could be done is to find out the market value of the acquired land with reference to the relevant date of publication u/s. 4(1) of the LA Act, according to the actual use to which it was put and increase its value by a small percentage having regard to the degree of its building potentiality ascertained on the basis of evidence to be made available in that regard. A small percentage increase to be given shall not exceed 1/5th of the market value of the land found out according to its actual user since resort to the method of giving increased value for such building potentiality arises only when there is no evidence of sales of building plots in the neighbourhood of the acquired land indicating that there was no immediate demand, as such, for building plots even if formed in the acquired land. Hence, whether the acquired land has building potentiality or not, while has to be decided upon reference to the material to be placed on record or made available by the parties concerned, the market value of the acquired land with building potentiality, is also required to be deter- mined with reference to the material to be placed on record or made available in that regard by the parties concerned and not solely on surmises, conjectures or pure guess.\nRe: Question (2)\n23. Value of building plots found in the Basic Valuation Register The value of building plots mentioned in the Basic Valuation Register can be of no assistance in determining the market value of the land acquired under the LA Act is no longer res Integra. In Jawajee Nagnatham Vs. Revenue Divisional Officer, Adilabad, A.P. and Others [(1994) 4 SCC 595 1994 Indlaw SC 1292], it is ruled by this Court that the value of lands men- tioned in the Basic Valuation Register prepared and maintained for the purpose of collecting stamp duty since lacks statutory base, the same cannot form the foundation to determine the market value of the lands acquired under the LA Act by observing thus:\n\"It is, therefore, clear that the Basic Valu- ation Register prepared and maintained for the purpose of collecting stamp duty has no statutory base or force. It cannot form a foundation to determine the market value mentioned thereunder in instrument brought for registration. Equally it would not be a basis to determine the market value u/s. 23 of the Act, of the lands acquired in that area or town or the locality or the taluk etc.\"\n24. Therefore, the value of building plots as found in the Basic Valuation Register maintained under the Stamp Act cannot form the basis for determining the market value of the lands acquired under the LA Act.\nRe: Question (3):\n25. Non cross-examination or ineffective cross-examination of witnesses for the claimant Oral evidence is generally adduced in the enquiry held by Court for determination of the compensation payable for lands acquired under the LA Act. Such oral evidence, generally, comprises of either of the claimants or their witnesses examined in support of the claims of claimants for grant of enhanced compensation, which in its very nature, would be referable to matters of situation of the acquired lands, their surroundings, their value or the like. Several statements would be made by such claimants or their witnesses when they are examined-in-chief in Court, on matters that may bear on the market value of acquired lands. If the witnesses who make such statements are not subjected to cross-examination or effective cross- examination or no contrary evidence is adduced, is the Court obliged to accept such state- ments to be true in determining the market value of the acquired lands ? It is, no doubt true, that whenever oral evidence is adduced by parties on certain matters in controversy, it may become difficult for Court to overlook such evidence, if it is not shown by effective cross- examination of such witnesses who have given such evidence or by adducing contra-evidence, that the oral evidence was unreliable or the witnesses themselves are not credit worthy. But, in land acquisition references before Civil Courts, when witnesses give oral evidence in support of the claims of claimants for higher compensation the ineffective cross-examination of such witnesses, is not an uncommon feature if regard is had to the manner in which claims for enhanced compensation in land acquisition cases are defended in courts on behalf of the State. Indeed, when a question arose before this Court whether the Court is bound to accept the statements of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced, it was observed by this Court in Chaturbhuj Pande and Others v. Collector, Raigarh, [AIR 1969 S.C. 255 1968 Indlaw SC 433], thus :\n\"It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers..... they are bound to call into aid their experience of life and test the evidence on the basis of probabilities.\"\n26. Hence, we are unable to think that whenever the statements made by claimants' witnesses in courts are not got over on behalf of the Collector or the LAO by subjecting the witnesses to effective cross examination or by not adducing evidence in rebuttal, the courts are obligated to accept such statements of witnesses as true, if tested on the basis of probabilities, become unreliable. If the courts were to accept such statements of witnesses as true merely because they are not subjected to cross-examination or effective cross-exam nation or because evidence in rebuttal thereof has not been adduced, it would amount to doling out public money to the claimants far in excess of their legitimate entitlement for just compensation payable for their lands. If such situation is prevented by courts dealing with claims for compensation by testing the statements of witnesses for claimants on the basis of probabilities, the Court will have performed the duty justly expected of them. Hence, no Court which tests the oral evidence of the claimants on the touch-stone of probabilities calling into aid, its experience of life, men and matters and find such evidence to be untrustworthy, the same cannot be found fault with.\nRe: Question (4)\n27. Market Value of large extents of acquired lands vis-a- vis value fetched by small extents - It is a matter of common knowledge that the large extents of lands if arc to be sold, they cannot fetch the value which may be fetched by sale of small extents of land. It is for that reason the courts do not ordinarily accept the value fetched by small extents as the basis for determination of the value of large extents of acquired lands. In fact, where the small extent of land sold is in significant when compared with large extent of land acquired, the market value of large extent of acquired lands shall not be determined on the basis of value fetched by sale of infinitesimally small extent of land. But, in exceptional cases when small extent of land sold for a price as compared with the acquired large extent of land, the market value of which is required to be determined is not so insignificant, the Court depending upon the possibility of the large extent of land of the claimant being sold as a small extent of land as that already sold for a price the market value of the large extent could be fixed on the basis of the price fetched by sale of small extent. Even then, how far the price fetched by sale of small extents can be made the basis for determining the market value of large extents must necessarily depend on the fact situation including that as to why the purchase was made, in each case, which has come on its record.\n28. However, when the value fetched by small extents, are of building plots, in a building lay-out formed of a large plot, it has to be seen whether the large acquired land if is laid out into small building plots and sold, whether they could fetch the price fetched by sale of small building plots in the already formed building lay-out. Then, the market value of the acquired land has to be determined with reference to the value fetched by sale of small plots by making allowances for various factors, such as; loss of land required out of the acquired land to be used for roads, drains, parks, the expenditure involved in forming the layout waiting involved in sale of plots and several other factors which will necessarily reduce the wholesale price of the acquired land. Thus, how far the value fetched by sale of small extents of lands could form the basis for determining the market value of the acquired land has to inevitably depend upon the allowances to be made for factors which distinguish the acquired land from the plots of land sold and the sale value of which is relied upon as the basis for determining the market value of the acquired land.\nRe: Question (5) :\n29. Section 51-A of the Land Acquisition ActS. 51 -A of the LA Act reads thus :\n\"51-A. Acceptance of certified copy as evidence. In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given u/s. 57 of that Act, may be accepted as evidence of the transaction recorded in such document.\"\n30. Certified copy of a document registered under the Registration Act, 1908, but for the above provision could have been only secondary evidence which could have been accepted by the court when primary evidence relating to the original documents were shown to be unavailable. S. 5 1-A of the LA Act, as seen therefrom, is enacted to enable the parties in land acquisition cases, to produce certified copies of documents, to get over the difficulty of parties, in that, persons in possession of the original documents would not be ready to put them in courts, for when once they are put in Court, they cannot be sure, when they could take their return from Court. However, the mere fact that a certified copy of the document is accepted as evidence of the transaction recorded in such document does not dispense with the need for a party relying upon the certified copies of such documents produced in court in examining witnesses connected with documents to establish their genuineness and the truth of their contents. Therefore, the certified copies of registered documents, though accepted as evidence of transactions recorded in such documents, the court is not bound to act upon the contents of those documents unless persons connected with such documents give evidence in court as regards them and such evidence is accepted by the Court as true. But, when the LAO or the Collector has made his award, based on the contents of documents, as found in the registers kept under the Registration Act and produces registration copies of such documents in support of his award in Court, they could be regarded acceptable as evidence by Court given in support of the award unless it is shown by contra-evidence on behalf of the claimants that such documents could not have been relied upon by the Collector or LAO in making the award. It would be so for the reason that when the LAO produces in court Registration (certified) copies of those documents which he had made the basis for determining the market value, that would be only to support his award and not to establish something independent of the award. If that be so, when such documents are produced on behalf of the LAO in court, they cannot be rejected on the ground that the wit- nesses associated with those documents cannot be examined by the LAO, inasmuch , even without producing such documents he can rely upon the award made by him to show that he had looked into those documents and he had determined the market value on their basis. Hence, the mere fact that witnesses associated with such certified copies of documents produced as evidence in court were not examined on behalf of the LAO will not in any way affect the award of the LAO, if he has determined the market value of the acquired land having perused those documents as found in the Registers kept under the Registration Act or their certified copies, before determining the market value of those lands on the basis of such documents.\nRe: Questions (6) and (7):\n31. S. 23 (1-A) of the Land Acquisition ActS. 23 (1-A) of the LA Act reads thus :\n\"23 (1-A). in addition to the market-value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded. \"\n32. It is clear from a reading of the above section that in addition to the market value of the land awardable for the acquired land under first clause of sub-s. (1) of section 23, the Court shall in every case award an amount calculated at the tee of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the Notification under s. 4(1) of the LA Act, in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation, merely disentitles the claimant for the amount during the period referred to in the subsection, that is, the proceedings for the acquisition of the land were held up by any stay or injunction by the order of any court. The amount awardable under sub-section (1-A) of s. 23 of the LA Act, there- fore, would be an amount of 12 per centum per annum on the market value of the land determined under first clause of sub-s. (1) of s. 23 for the period between the date of publication of Notification under s. 4(1) (i.e., the last of the dates of such publication and the giving of such public notice) and to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.\n33. In this context it has to be noted that the amount payable is 12 per centum per annum on the market value in the first clause of sub-s. (1) of s. 23 of the LA Act. It has also to be noted that solatium under sub- s. (2) is not payable in respect of the amount awardable under sub-section (1-A), in that, sub-s. (2) says that in addition to the market-value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market-value, in consideration of the compulsory nature of the acquisition.\n34. Since the amount payable under sub-section (1-A) of s. 23 as well as the solatium payable under sub-s. (2) are in addition to the market value of the land, as above provided, they necessarily refer to the market value of the land award able in the first clause of sub-s. (1 of s. 23 of the LA Act.\nRe: Question (8) :\n35. Market value of the lands of the claimant The High Court has refused to act upon documents. Exs. A-1 to A-6 relied upon on behalf of the claimant for obtaining enhanced compensation for his acquired land. Ex. A-1 is a certified copy of Sale Deed dated 16.2.1985. It was sought to be proved by examination of PW2 the purchaser under that document. The amount of consideration passed under that document, though was mentioned as Rs.60,000/- for 250.80 sq. yards of land sold thereunder, it had been said that that amount had been paid before the witnesses. The High Court has refused to believe the evidence as to passing of consideration of Rs.60,000/- under that document. Whether the consideration mentioned in a document, like sale deed did pass from the buyer to the seller of land, being a matter of pure appreciation of evidence and when the High Court in appreciation of such evidence has refused to accept that evidence and rejected the document, we find it difficult to interfere with such finding of fact recorded by the High Court and take a contrary view in the matter.\n36. Similar is the view taken by the High Court in respect of Sale Deed dated 26.7.1985, Ex. A-3, in proof of which the vendor has been examined. Here again, the High Court has rejected the sale deed by refusing to accept the oral evidence adduced. Here also there is no justification for us to take a view in the matter contrary to the view taken by the High Court in the matter. Insofar as documents Exs. A-2, A-4 and A-5 are concerned, those are gift deeds of different dates. The claimant sought to rely upon the amounts mentioned in them as the value of lands for purposes of registration of documents, as those which could be taken for purposes of determining the market value of the acquired land in the vicinity. The High Court took the view that the parties to the gift deeds, when were near relatives, as father and daughter or husband and wife, consideration mentioned in them as the value of land which is solely for the purpose of registration cannot represent the real market value of any of those lands and hence cannot form the basis for determination of the market value of the acquired land. Consequently, High Court rejected the gifts deeds as unhelpful for determination of the market value of the acquired land. When rejection by the High Court of the gift deeds is made on the basis of appreciation of evidence available before it, there can be no justification for us to interfere with such rejection. The other document on which reliance was placed by the claimant was Ex. A-6, which is an extract of the Basic Valuation Register. As we have al- ready held following an earlier judgment of this Court that Basic Valuation Register extracts cannot be of any assistance in determination of market value of an acquired land, the rejection by the High Court of Ex. A-6, the basic register extract, on its view, that on its basis the market value of the acquired land cannot be determined, it is difficult for us to hold that the High Court was unjustified in rejecting Ex A-6 as that which cannot form the basis for determination of the market value of the acquired land. Thus, the said documents which were made the bask for determination of the market value of the acquired land by the civil court were rejected by the High Court on reappraisal made by it of the oral evidence adduced in respect those documents by taking into consideration the relevant factors to which we have already referred, such rejection, cannot be found fault with. However, what the High Court has done in determining the market value of the acquired land is to double the amount of the market value disclosed in the sale deeds referred to in that award and on that basis to fix the market value of the acquired land after giving deduction of 20 per cent out of it towards allowance of lay-out and then fix the market value of the acquired land at Rs.32/- per sq. yard.\n37. No doubt, as pointed out on behalf of the LAO, no specific reason is given by the High Court in its judgment as to why it doubled the amount of Rs.20/- per square yard, the value fetched by sale deeds (Exhibits B-2, B-3 and B-4) for fixing the market value of the acquired land. But, then whether the award of the LAO himself lends support for such doubling of the value of plots of land sold under the sale deeds, Exhibits B-2, B-3 and B-4, for determining the market value of acquired lands which were notified u/s. 4(1) of the Act a few years thereafter, requires to be seen. The award of the LAO (Ex. B-1) insofar, it concerns the question reads thus:\n\"The land under acquisition is located between the National Highway No. 7 and Old Kurnool road and the proposed ring road connects these two roads. The lands are also located near Shivarampally railway station and in close proximity to Katedan Industrial Estate and fall within the newly formed Rajendranagar Municipality. The area is fast developing and there is much demand for residential house plots particularly after developing the N.G.Os colony at Mylardevally and Madhuban residential complex of HUDA in the neighbouring area. The area is also served with all modem amenities like power, transport , telephone etc., with high potentiality for developing housing colonies.\"\n38. Therefore, when the LAO himself has stated as above of the fast development of the area where the acquired lands and adjoining building plots sold at Rs. 20 per square yard were situated and the rush of people for purchase of residential building plots in that area, ;he High Court cannot be said to have gone wrong in stating that the building plots sold under Exhibits B-2, B-3 and B-4 if had been sold at the time of acquisition concerned, could have fetched double the rate of Rs.20/per square yard. Even so, the High Court, in our view, could not have fixed the wholesale price of acquired lands of the claimant at Rs.32/- per square yard by deducting only 20% of Rs.40/- per square yard fixed as the retail value of building plots in the undeveloped layout of building plots formed in the land adjacent to the acquired lands as on the date when they were notified for acquisition u/s. 4(1) of the Act. As we have pointed out earlier whenever the wholesale price of the acquired land with building potentiality is required to be determined on the basis of prices of retail sales of building plots in an undeveloped layout of building plots in the vicinity of the acquired lands, at least one-third of the retail price to be got by sale of plots in an unde- veloped layout of building plots had to be deducted to arrive at the wholesale price of the acquired lands with building potentiality since the entire acquired land cannot be sold as building plots, and some expense will have been incurred by the owners of lands in laying it into building plots and selling them even though they might not have spent any amount on development of the layout.\n39. When considered in the above perspective, the wholesale price of the entire acquired lands of the claimant could be fixed at Rs.27/- per square yard, that is, Rs.40/- per square yard retail price to be got by sale of plots in the undeveloped layout minus one-third of it to be deducted for making of layout. Thus, the market value of the entire land of the claimant would be Rs. 27/- per square yard and it has to be determined accordingly.\n40. In the result, we determine the market value of the claimant's acquired land of 4 acres 3 guntas i.e. 19723 square yards at Rs.27/- per square yard and that would be Rs.5,32,521/-. The claimant would be entitled to get solatium at the rate of 30 per cent on that market value of the land. In addition to the market value of the land of Rs.5,32,521/-, the claimant would be entitled to get an amount at the rate of 12 per cent per annum thereon from the date of publication of Notification under s. 4(1) of the LA Act, i.e., 2.9.1985 till the date of the award, i.e., 14.7.1988. Again, the claimant would be entitled to get interest on the enhanced compensation at the rate of 9 per cent per annum from the date on which he gave the possession of the land to the date of payment of such excess amount. However, if such amount has not been paid by the expiry of the period of one year from the date when possession was taken, enhanced compensation would be payable at the rate of 15 per cent per annum from the date of the expiry of the period of one year till the excess amount was paid to the claimant or paid into court.\n41. We, accordingly, allow Civil Appeal arising out of S.L.P (C) No. 18202 of 1993 partly and dismiss Civil Appeals arising out of S.L.P. (C) Nos. 13362-63 of 1993.\nHowever, we make no order as to coos.\n"}
+{"id": "uPGtk4vvVS", "title": "", "text": "State Of Orissa & Ors. v Lall Brothers\nSupreme Court of India\n\n25 August 1988\nCIVIL APPELLATE JURISDICTION : Special Leave petition (civil) No. 7396 of 1987. PG NO 581 From the Judgment and Order dated 8.4. 1997 of the Orissa High Court in M. A. No. 378 of 1983.\nThe Judgment was delivered by: SABYASACHI MUKHARJI, J.\nThis is an application for leave to appeal u/art. 136 of the constitution from the decision and judgment of the High court of Orissa, dated April 8, 1967. By the said judgment the High court had allowed the appeal in part and modified the award so far as it related to the payment of interest on the awarded amount. Another appeal challenging the validity of the award was, however, dismissed.\n2. In or about 1975-76 the respondent was entrusted with the work of\n\"construction of balance work of earth dam of Koska Minor Irrigation Project\"\n3. Final bill was prepared on February 12, 1980 and it was unconditionally accepted by the respondent-contractor. This contention, however, was sought to be disputed before us by the respondent contractor by producing certain bill stated to be the final bill which was \"accepted under protest\". It is, however, not necessary for us to go into this question at this stage.\n4. On or about April 16, 1980, the respondent-contractor raised certain claims and gave notice for appointment of an arbitrator according to the contract. On April 22, 1980, the Chief Engineer appointed Shri N. K. Mishra as arbitrator. However, on the application of the respondent the subordinate Judge removed Shri N. K. Mishra and instead appointed Shri P. C. De as the arbitrator. Before the arbitrator the respondent filed its claim along with some documents and the petitioner filed his counter-statement. It is stated on behalf of the State that no further evidence was adduced by the respondent but the petitioner produced the measurement books. The petitioner contended that no amount was due. The respondent disputed that.\n5. The arbitrator on the basis of the claim statement and some document filed by the respondent-contractor, gave a lump sum award for Rs. 14, 67, 000 plus interest at 9 per cent from April 30, 1978. The award was given on June 23, 1982. On July 11, 1983, the learned Subordinate Judge made the award rule of the court with the modification that the interest was directed to run from June 23, 1982 instead of April 30, 1978. The High Court allowed the appeal in part and deleted the direction regarding future interest awarded by the arbitrator and modified by the learned subordinate Judge. In appeal it was contended before the High Court for the said judgment by the Subordinate Judge that the following objections were taken against the award, namely\n(i) that there is an error of law apparent on the face of the award;\n(ii) that the arbitrator has misconducted himself by giving a lump sum award without examining each item of the claims;\n(iii) that the claimant having accepted the final bill unconditionally deposit , the contract between the parties stood closed and, therefore, the arbitration clause was not operative and the arbitrator appointed had no jurisdiction to adjudicate upon the disputes;\n(iv) that the award of interest is without jurisdiction\n6. Except the documents on record, neither of the parties adduced any evidence. It was urged before us that the High Court did not accept challenge to the award but modified the order of interest as indicated before. The award in question contained the recitals to the effect that the arbitrator had gone through the claim statement, counter-statement and documents produced before him and heard the representations made by the parties. There is no error of law apparent on the face of the award. there was no misconduct on the part of the arbitrator or in the conduct of the proceedings. It was contended before us that this is an award which was unreasoned and a lump sum amount was awarded without specifying the amount awarded on particular grounds.\n7. In our opinion, the High Court was right in refusing to accept the challenge to the award. The fact that there is an unreasoned award, is no ground to set aside an award. Lump sum award is not bad per se, as such. An award is conclusive as a judgment between the parties and the court is entitled to set aside an award only if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the court superseding the arbitration or after arbitration proceedings have become invalid u/s. 35 of the Arbitration Act or where an award has been improperly procured or is otherwise invalid u/s. 30 of the Act. An award may be set aside by the court on the ground of error on the face of the award, but an award is not invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion.\n8. It is not open to the court to speculate, where no reasons are given by the arbitrator, as to what impelled him to arrive at his conclusions. See in this connection the observations of the Judicial Committee in Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd. and of this court in Jivarajbhai Ujamshi Sheth v. Chintamanrao Balaji.\n9. The fact that a lump sum award has been given, is no ground to declare the award bad. See further Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, Union of India v. Bungo Steel Furniture Pvt. Ltd. as well as the decision of this Court in Allen Berry and Co. (p) Ltd. v. Union of India.\n10. Learned solicitor General for the petitioner relied on Continental construction Co. Ltd. v. State of Madhya Pradesh. Reliance was misplaced. If a question of law was not specifically referred to the arbitrator his decision is not final. It was reiterated that the arbitrator is bound by law, and if an error of law in the award is on the face of it, is amenable to correction.\n11. In that view of the matter the points sought to be urged in this application for leave, are not entertainable. The application fails and is accordingly dismissed.\nApplication dismissed .\n"}
+{"id": "SmNqE40fAr", "title": "", "text": "Jivarajbhai Ujamshi Sheth and Others v Chintamanrao Balaji and Others\nSupreme Court of India\n\n19 November 1963\nCivil Appeal No. 717 of 1963.\nThe Judgment was delivered by: J. C. Shah, J.\n1.  Vrajlal Manilal & Company, a firm consisting originally of four partners (1) Manilal Anandji, (2) Jivrajbhai Ujamshi Sheth, (3) Punjabhai S. Patel, and (4) Chintamanrao, has been doing business of manufacturing bidis at Sagar and Delhi since 1944. From time to time fresh partnership deeds were executed readjusting the shares of the partners admitting new partners and adjusting the shares of the partners. In 1954 Manilal Anandji retired from the firm and on January 27,1955, Punjabhai S. Patel died.\n2.  On February 16, 1956, a fresh deed of partnership was executed. The firm then consisted of eight partners-Jivraj and his two sons being entitled in the aggregate to annas -/4/3 share in a rupee in the profits, Chintamanrao and his two sons to annas -/7/6 share in a rupee, and the two sons of Punjabhai S. Patel to the remaining annas -/4/3 share. By  the books of account were to be maintained by the managing partner, the financial year of the firm being from Diwali to Diwali, and profits and losses were to be ascertained at the close of the year and a copy of the balance-sheet with profits and loss statement was to be supplied to each partner, and if no objection regarding the accounts was raised within four months from the end of the year, the' accounts were to be deemed conclusive and binding unless vitiated by fraud. It was stipulated that a partner desiring to retire from the partnership may, unless the other partners agreed to' his retirement otherwise, do so after giving six months notice to all the partners in writing terminable at the' end of the year i.e., the Diwali immediately following the date of the notice.\nIt provided:\n\"In case of retirement of any partner the valuation of the Firm will be made on the following, basis for the purpose of settling the account of the retiring partner:-\n\"(a) Goodwill of the Firm:-That is, right to use the trade marks, trade labels and the name of the Firm.\nIn making the valuation of the above the net profits of the last five years will be taken as the value of the Goodwill of the Firm.\n(b) Outstandings, Udhari (Recoveries) :-That is, loans and debts outstanding against persons other than partner will be calculated at 85 % of the book value of the Firm.\n(c) Stock of Raw Materials:-That is, tobacco, bidis, bidi leaves, labels and other moveable property will be valued at the book value of these in the books of the Firm and all, such stock and moveables, thus valued shall be given to the remaining partners.\n(d) Immoveable Property:-Such as buildings, godowns, gardens, lands etc. will be valued at the parchase price or their book value in the books of the Firm as the case may be, and all these shall be given to the remaining partners.\"\n3. It incorporated a clause for reference of disputes between the partners relating to the business or dissolution of the firm to arbitration.\n4.  In April 1958 Jivraj and his two sons appellants in this appeal desired to retire from the partnership, and a deed of reference was executed on April 16, 1958, appointing Ambalal Ashabhai, Becharbhai Somabhai and Chaturbhuj Jasani as arbitrators to decide the dispute. It was recited in the deed of reference that since Jivraj and his two sons had expressed a desire to retire and the remaining five partners had agreed to take over the entire business of the firm, it was \"necessary to effect the final account of the retiring partners with regard to the matters mentioned below, as far possible, according to and taking into consideration the terms and conditions of the Partnership Agreement.\nGoodwill of Trade Mark.\nProperty.\nCredits (Udhari)\nDead-stock.\n5.  Stock-in-trade i.e. the raw material, or the finished goods invested in the business.\nOther matters connected with these transactions.\nProfit and Loss Account.\n6.  The Receipt ond Payments account of the amounts of the partners.\n7.  It it was provided that the firm shall be continued by the remaining five partners and that those five partners shall make full payment to the retiring partners Jivraj and his two sons of such amounts, in such manner, and on such conditions, as shall be decided upon by the arbitrators. It set out the powers exercisable by the arbitrators in the matter of calling for production of account books and documents and other information from the parties.\n8.  The deed of reference was subsequently modified, and the parties agreed that the reference be \"carried out by the sole arbitrator Shri Jasani\". Pursuant to this modified agreement, Jasani entered upon the reference, and made his award on January 9, 1959. By his award he fixed the value of the goodwill of the entire firm at Rs. 32 lakhs including in that amount the \"depreciation and appreciation of the property, dead-stock and dues to be recovered\". He also fixed the profits for the broken period of Samvat year 2014 from the commencement of the year till April 19, 1958 at Rs. 2,80,000 and after adjusting the personal accounts of the three retiring partners awarded to Jivraj Rs. 3,46,223.58 nP. to Amritlal son of Jivraj Rs. 4,04,519.99 nP. and to Bhagwandas son of Jivraj Rs. 3,86,019.14 nP, and directed that the ownership over the assets of the firm i.e. property-moveable and immoveable, Trade mark, labels, stock-in-trade, long-term leases and contracts etc. shall remain with the remaining partners, subject to the liabilities of the firm, the retiring partners not being responsible for the liabilities of the firm, nor having any interest in the firm or its business. This award was filed in the Court of the Additional District Judge, Sagar, under s. 14(2) of the Indian Arbitration Act, 1940.\n9.  Chintamanrao and his sons then applied for an order setting aside the award on diverse grounds. In this appeal by the retiring partners, two heads of objections only survive for determination and we propose to refer only to those two heads, viz:\n(1) That the arbitrator in making his award travelled outside. his jurisdiction delimited by the agreement of reference in that in fixing Rs. 32 lakhs as the value of the divisible assets of the firm he included therein the depreciation and appreciation of the property, dead-stock and outstandings, which he was by the terms of the reference incompetent to include.\n(2) That the arbitrator was guilty of legal misconduct in that he had in the course of arbitration proceedings admitted in his record a statement of account prepared by Jivraj and his sons without the knowledge of the other partners and without giving them an opportunity to make their submissions thereto.\n10.  The retiring partners resisted the petition to set aside the award and submitted that they were entitled to have the assets of the firm in which they had a share, fixed at an amount much in excess of Rs. 32 lakhs and that the arbitrator had not overstepped his jurisdiction in fixing the value of the goodwill at Rs. 32 lakhs, and that the statement of account referred to by the applicants was prepared under the directions of the arbitrator and in his presence and it was admitted in the record of the arbitrator to the knowledge of the remaining partners who had assented thereto.\n11.  The Trial Court upheld these and certain other objections, and set aside the award. The High Court confirmed the decision of the Trial Court, insofar as it related to the two objections hereinbefore set out.\n12.  The question which we propose to consider first is: whether in making the valuation of the firm\" for determining the share to be paid to the retiring partners, did the arbitrator overstep the limits of his authority under the agreement of reference? It may be recalled that by cl. 6 of the arbitration agreement the remaining partners had to \"make full payment to the retiring partners of such amount as may be decided\" by the arbitrator. But in determining the amounts to be awarded to the retiring partners, the authority of the arbitrator was restricted. He had, in determining the amounts due to the retiring partners, to take \"final accounts with regard to the matters\" set out in cl. 4, \"as far as possible, according to and taking into consideration the terms and conditions of the Partnership agreement\". By this direction the clauses of the partnership agreement were incorporated in the agreement of reference. The \"final account\" of the retiring partners with regard to the eight matters specified in cl. 4 was undoubtedly to be made, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement. The language used in the deed of reference is of compulsion, not of, option: it means that if there be in the partnership agreement any term or condition, which deals with any particular matter of which an account was to be taken under cl. 4 of the -agreement of reference, it has to be strictly followed. Use of the expression \"as far as possible\" did not confer any discretion upon the arbitrator to ignore the terms and conditions of the partnership agreement. In the partnership agreement, in making \"valuation of the firm\" for the purpose of settling accounts, the value of the goodwill, the outstandings, stock of raw material and moveable and immoveable property had to be taken as directed therein. In the matter of valuation of the goodwill of the firm, therefore, no discretion was left to the arbitrator: the value of the goodwill had to be the aggregate of the net profits of the last five years. Debts due to the firm from persons other than partners had to be \"calculated at 85 % of the book value of the firm\".\n13.  In respect of the stock of raw materials and other moveable property the \"book value in the books of the firm\" had to be accepted by the arbitrator and in the case of immoveable property such as buildings, godowns, gardens, lands etc. \"the book value in the books of the firm\" was to be accepted and if none such was available the purchase price as mentioned in the books was to be accepted. In all these matters the arbitrator had by cl. 4 of the arbitration agreement to make the final account of the retiring partners according to and taking into consideration the terms and conditions of the partnership agreement and had no option. It is necessary to remember that the partnership agreement does not grant to a retiring partner a share in the aggregate of the four items mentioned in cls. (a), (b), (c) & (d) i.e., goodwill of the firm, outstandings, stock of raw materials including moveable and immoveable property. The partnership agreement merely provides that the \"valuation of the firm\" shall be made as set out therein for the purpose of settling the account of the retiring partners i.e., in ascertaining the amount due to the retiring partners valuation of the assets in cls. (a) to (d) shall be made in the manner set out therein. The arbitrator was therefore bound to adopt the valuation prescribed by the partnership agreement, but that is not to say that the retiring partner was entitled to a share equal to the aggregate of the values of the four items mentioned. It is necessary to emphasize this matter because on behalf of the retiring partners a considerable argument was advanced before us on the assumption that they were entitled to a share equal to the aggregate of the values of the four items of property mentioned in the partnership agreement, and that by the method of valuation adopted by the arbitrator they were awarded much less than what they were under the partnership agreement entitled to. It merely prescribes the valuation in respect of four out of the items which had to be considered in ascertaining the \"valuation of the firm\". The phraseology used in the opening part makes it clear beyond all doubt that the valuation of the firm had to be made on the basis specified for the purpose of settling the account of the retiring partner. The specific items in the agreement do not prescribe any method of valuation of the debts and liabilities of the firm, but the debts and liabilities must be taken into account in assessing the value of the share of the retiring partners. The arbitrator had to make a valuation of the firm i.e. of all the assets of the firm and of the debts due by the firm and thereafter to settle the account of the retiring partners.\n14.  We may now turn to the award made by the arbitrator. The dispute between the parties has to be resolved on a true interpretation of the following clause:\n\"I assess the value of the goodwill at Rs. 32 lakhs. 489\nThis amount includes the depreciation and appreciation of the property, dead-stock and dues to be recovered.\"\n15.  (We have taken this as the correct rendering into English of the original award which is in Hindi. It is accepted by both the parties before us as a true rendering.) The arbitrator has, as he has observed in his award, taken only the value of the goodwill, in determining the amounts to be allotted to the retiring partners, and has not expressly referred to the valuation of the three other items, viz., the outstandings, the stock-in-trade and moveables and the immoveable property mentioned in the partnership agreement. Counsel for the retiring partners urged that on the admission made by Chintamanrao, the value of the goodwill alone was Rs. 21,70,650/10/and if the value of the immoveables, stock-in- trade etc. and outstandings be added thereto, the aggregate would considerably exceed Rs. 32 lakhs. But this argument is founded on the fallacious assumption that the debts and liabilities of the firm have to be ignored in determining the shares of the retiring partners. Counsel for the respondent submitted that in substance the goodwill had alone to be valued by the arbitrator for the property, moveable and immoveable, stockin-trade and the outstandings of the firm were approximately equal to the aggregate of the debts and obligations of the firm. Reliance in this behalf was placed upon a balance-sheet Ext. A-13 of the assets and liabilities of the firm, showing the financial position of the firm on April 16,1958, and the value of the tangible assets, such as the stock of raw-materials, moveable and immoveable property and outstandings, according to the balance-sheet, was approximately equal to the debts and liabilities of the firm.\n16.  But it is not necessary for us to decide whether the submission of the respondents is correct. The arbitrator has in his award stated that Rs. 32 lakhs is the value of the goodwill alone, and for some reason not disclosed by him he has not valued the other assets. He has also not disclosed in his award how he has arrived at the valuation of Rs. 32 lakhs. One thing, however, stands out prominently in the award, that in assessing the value of the goodwill, he has included the depreciation and appreciation of the property, dead-stock and the outstandings. The arbitrator could undoubtedly make a lump-sum valuation of the firm in the award made by him. He was not obliged in the absence of a direction in that behalf to set out in his award the valuation of the different components which aggregated to the lumpsum. The arbitrator had to \"value the firm\", and in doing so to abide by the specific directions, but he was not obliged to set out in the award separate valuations of all or any of the items mentioned in the deed of reference, or in the partnership agreement, nor to set out the extent of the debts and obligations assessed by him. What then is the effect of the inclusion by the arbitrator in the valuation of Rs. 32 lakhs, of the depreciation and appreciation of the property, deadstock and dues to be recovered? Diverse arguments were submitted by counsel for the appellants in support of the plea that the inclusion of what is called the depreciation and appreciation in respect of the various items does not amount to overstepping the limits of the jurisdiction of the arbitrator. It may be reiterated that the powers of the arbitrator were, by the terms of cl. 4 of the deed of reference, clearly restricted. He was \"to take final account of the retiring partners with regard to the matters mentioned therein, as far as possible, according to and taking into consideration the terms and conditions of the partnership agreement\". Restriction on the power of the 'rbitrator in valuing the property, dead-stock and outstandings was explicit. He could not therefore adopt any valuation different from the valuation prescribed by the partnership agreement. But the arbitrator has, as he has himself stated, in valuing the goodwill at Rs. 32 lakhs included in that amount the value of the depreciation and appreciation of the property, dead-stock and dues to be recovered.\n17.  Counsel for the appellant submitted that reduction of outstandings of the firm by 15 % in respect of the dues from persons other than the partners was a mode of ascertaining the depreciation in respect of that item provided by cl. (b) of the partnership agreement, and the arbitrator in taking into consideration that depreciation has not acted outside his jurisdiction. It would be difficult to regard the method of valuation as prescribed in respect of the outstandings as \"including depreciation\". Even assuming that the reduction of the outstandings of the firm from persons other than the partners by 15 % as directed in cl. (b) of the partnership agreement be regarded as depreciation of the assets, inclusion of depreciation and appreciation in respect of the other assets was not permitted by the deed of partnership. In valuing the moveable property including the stock of raw materials, the arbitrator could not adopt any valuation other than that mentioned in cl. (c) of the partnership agreement, namely, the book value as given in the books of the firm. Similarly, in the valuation of immoveables such as buildings, godowns, gardens, lands etc., he had to accept the book value as mentioned in the books of account of the firm and if no book value was available the. purchase price as mentioned in the books was to be accepted. The arbitrator had no power to make any adjustment in respect of those items by including depreciation or appreciation in their value.\n18.  The principle of Cruikshank and others v. Sutherland and Others, [1923] 92 L.J. Ch. 136 on which reliance was placed by counsel for the retiring partners, has, in our judgment no application to this case, because in that case though there was an article of the partnership providing that the share of a deceased partner in the assets of the partnership should be ascertained by reference to the annual account made up on April 30 next after the death, the articles were wholly silent as to the principle to be adopted in preparing a full and general account of the property. There was no usage or course of dealings between the partners from which an inference could be drawn that on the death of a partner his share shall be paid out on the footing of book value. The executors of the deceased partner claimed that his share be determined \"at the fair value of the firm\". At p. 138 it was observed by Lord Wrenbury.\n19.  Even if there were a usage to state an account for one purpose in one way, that is not a usage to state it for another purpose in the same way. There is a passage in Blisset v. Daniel (10 Hare, at p. 515) which is useful reading in this connection. An account stated for one purpose is not necessarily stated for another purpose. The fact is, that in this partnership an account has never been stated with a view to fitting the case of a retiring partner, or a deceased partner, or a senior partner who is going to exercise an option of taking over all the assets. The partners have never had any such event in view in making the account which they have made. There has never been an account prepared which was intended to meet all the various contingencies of events such as these.\n20.  In the case before us there is no dispute that the duty of the arbitrator was to make \"valuation of the firm\" subject to the partnership agreement and it may even be granted that in arriving at that valuation he was not bound by it, but on this question we express no opinion. But the values as mentioned in the different clauses had to be accepted in making up the partnership account in respect of the four matters specifically enumerated. The principle of Cruikshank's case., [1923] 92 L.J. Ch. 136 did not apply, because the partnership agreement in this case itself provides that the book value in the books of the firm shall be accepted.\n21.  The expression \"book value\" in the context in which it occurs in the partnership agreement means, the value entered in the books of account. Adoption of the book value is therefore obligatory and there is no scope. of any adjustment in the value in the light of any depreciation or appreciation of the property, outstandings, stock-in-trade or dead-stock, apart from what may actually be included in the book value, in the books. It is the book value alone which has to be taken. If the depreciation or appreciation has been taken into account by the partners in assessing the book value, that was evidently part of the book value as entered in the books of account. If there was no book value entered in respect of any immoveable property, the decisive value was to be the purchase price.\n22.  It was then urged that it was for the arbitrator to adjudicate upon the true meaning of the partnership agreement and to give effect thereto, and if in making a \"valuation of the firm\" he was of the opinion that depreciation and appreciation in respect of certain items of assets should be included for the purpose of making up the account of the partners, the Court had no jurisdiction to set aside the award on that account, merely because the Court took a different view as to the true meaning of the arbitration agreement. But if the partnership agreement was incorporated in the deed of reference, the limits of the jurisdiction of the arbitrator must be determined by the Court and not by the arbitrator. By assuming that he was entitled to include, beside the value of the four items as mentioned in the agreement, some amount by way of appreciation in the value of those items, the arbitrator purported to set at naught the specific directions given in that behalf\n23.  An award made by an arbitrator is conclusive as a judgment between the parties and the Court is entitled to set aside an award if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under s.35 of the Arbitration Act or where an award has been improperly procured or is otherwise invalid: s.30 of the Arbitration Act. An award may be set aside by the Court on the ground of error on the face of the award, but an award is not invalid merely because by a process of inference and argument it may be demonstrated that the arbitrator has com- mitted some mistake in arriving at his conclusion. As observed in Chempsey Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Ltd., L.R. 50 I.A. 324 at p. 331:\n\"An error in law on the face of the award means, in their Lordships' view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the \"arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if. in a narrative a reference is made to a contention of one party, that opens the door to seeing first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound.\"\n24.  The Court in dealing with an application to set aside an award has not to consider whether the view of the arbitrator on the evidence is justified. The arbitrator's adjudication is generally considered binding between the parties, for he is a tribunal selected by the parties and the power of the Court to set aside the award is restricted to cases set out in s. 30. It is not open to the Court to speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. On the assumption that the arbitrator must have arrived at his conclusion by a certain process of reasoning, the Court cannot proceed to determine whether the conclusion is right or wrong. It is not open to the Court to attempt to probe the mental process by which the arbitrator has reached his conclusion where it is not disclosed by the terms of his award. But the arbitrator has in the present case expressly stated in his award that in arriving at his valuation, he has included the depreciation and appreciation of the property, outstandings and dead-stock, and in so doing in our judgment the arbitrator has travelled outside his jurisdiction and the award is on that account liable to be set aside. The question is not. one of interpretation of the partnership agreement but of ascertaining the limits of his jurisdiction. The primary duty of the arbitrator under the deed of reference in which was incorporated the partnership agreement, was to value the net assets of the firm and to award to the retiring partners a share therein. In making the \"valuation of the firm\". his jurisdiction was restricted in the manner provided by the partnership agreement.\n25.  It was next urged that the depreciation or appreciation which had been entered in the assessment of the book value were \"other matters connected with\" the \"transactions\" mentioned in the deed of reference. But manifestly those other matters were apart from the valuation of the goodwill, property, outstandings and the dead-stock.\n26.  It was then urged that when the arbitrator stated that he had included depreciation and appreciation of certain assets in the value of the goodwill in the award, he merely meant that such depreciation and appreciation was included as was in the circumstances permissible. But that would be ignoring the express recital in the award. In fact under the scheme of valuation envisaged by the partnership agreement and therefore the deed of reference, there was no scope for including in the valuation, appreciation of the assets. Again to argue, as was sought to be done, that even though the arbitrator stated that he had included in the amount of Rs. 32 lakhs \"the depreciation and appreciation\" of the property, dead-stock and dues, there being no power to include appreciation, appreciation in the property and the dead-stock could not have been included amounts to reaching a conclusion from an assumed premise of which the conclusion was a component.\n27.  It was also urged that the expression depreciation and appreciation had no such meaning as decrease or increase in the market value of the property, ,dead-stock and outstandings, and the clause merely meant that in fixing the valuation such depreciation or appreciation as had gone into the assessment of the book value of the different items was taken into consideration. But the arbitrator has not said that he merely took into consideration the depreciation and appreciation which went into the book value assigned by the partners to the assets in the account: he has clearly stated that he had included the depreciation and appreciation in those assets in the valuation of the goodwill.\n28.  Finally it was urged that the recital about the inclusion of depreciation or appreciation was a mere surplusage and should be discarded. But it would be difficult to regard a statement made by the arbitrator relating to what he says he had included in the valuation of the goodwill, as a mere surplusage, especially having regard to the orders made by him insisting upon the production of documentary evidence and certain books of account from Chintamanrao. It may be pointed out that by cl. 7 of the deed of reference very wide powers were conferred upon the arbitrator to call upon the disputing parties to produce the accounts etc. which the arbitrator desired and to produce any other papers or documents which the arbitrator would like to inspect, and to reply to any enquiry verbal or written of any sort or in any connection and in any form the arbitrator wanted. The orders passed by the arbitrator in exercise of these powers tend to indicate that in his view he was competent to ascertain and include in the valuation of the firm the depreciation and appreciation on the various items which were taken into account in arriving at the valuation.\n29.  By order dated September 16, 1958, the arbitrator gave direction, amongst others, to Chintamanrao to file a statement of houses etc. of immoveable property, valuation of the same as shown in the books of account, i.e. figures regarding it, and \"also the approximate value statement as it existed\" at the date of demand according to the estimate of Chintamanrao. In the note to the order, it was stated that Chintamanrao had produced certain papers but they were incomplete, and therefore he was ordered to bring copies of the incomplete papers and also those papers which were not sent by him. On October 10, 1958, Chintamanrao produced a statement of the net profits of the five years preceding the date of dissolution-which he called the price of the goodwill-for Samvat years 2009 to 2013. The aggregate of the net profits was Rs. 21,70,650/10/which he called \"price of the goodwill\". He then submitted a statement of the outstandings of the different shops aggregating to Rs. 9,16,366/- and the value of the goods purchased, and other property, and submitted that the total value of the goodwill of the firm by taking into account the profits of the firm for the last five years \"as per the statement filed was Rs. 21,70,650/10/3 and deducting therefrom 15 % of the outstandings of the firm considered as irrecoverable, the balance was Rs. 20,33,295/12/9\" and that this was the amount from which the shares of the retiring partners were to be computed. On December 2, 1958, an application was filed by Chintamanrao inviting the attention of the arbitrator to the agreement of reference and to the terms of the deed of partnership, especially and submitting that the book values of items (2) to (5) in the agreement of reference were already in the books of account and could be easily found without any detailed or elaborate examination of the books of account, it was unnecessary to enter upon any detailed inspection of the various entries. On this application an order was passed on December 5, 1958, by the arbitrator that the inspection of the books of account do start on December 21, 1958, in his presence at Sagar in the office of Messrs Virajlal Mannilal and Company and that Chintamanrao do make arrangements for giving inspection of all the books of account. On December 22, 1958, another application was submitted by Chintamanrao stating that it was not necessary to produce certain registers and manufacturing accounts and that the orders in that behalf were beyond the jurisdiction of the arbitrator and that he was unable to produce the ,documents demanded. It was submitted by that application that the kind of inspection claimed and granted amounted to re-opening of the accounts for the last five years which were closed with the consent and to the knowledge of all the partners and which could not in law be re-opened. On December 23, 1958, an application was made by Amrat Lal son of Jivraj (one of the retiring partners) submitting that the arbitrator had to value the goodwill and this had to be done by ascertaining the value of the profits of the five years, and for that purpose the arbitrator was entitled to ascertain yearly profits by scrutinising the account books and finding out the yearly net profits.\n30.  On these applications on December 25, 1958 the arbitrator gave a direction that Chintamanrao do produce the papers mentioned in item No. 2 in the order dated September 16, 1958, namely, the gross and net profits of the last five years, and that he do produce the other papers which were ordered to be produced by the order dated September 16, 1958. Thereafter on January 9, 1959, the arbitrator made his award. The insistence of the arbitrator upon production of the gross and net profits of the last five years indicate that it was the opinion of the arbitrator that he was entitled to take into consideration not only the book value of the assets given in the partnership books of account but the depreciation and appreciation of those assets. The specific use of the expression by the arbitrator that he had included the depreciation and appreciation of various items of property and the procedure followed by him including the orders therefore clearly establish that the expression used by him was not a mere surplusage.\n31.  It is clear that the arbitrator has included in his valuation some amount which he was incompetent, by virtue of the limits placed upon his authority by the deed of reference, to include. This is not a case in which the arbitrator has committed a mere error of fact or law in reaching his conclusion on the disputed question submitted for his adjudication. It is a case of assumption of jurisdiction not possessed by him, and that renders the award, to the extent to which it is beyond the arbitrator's jurisdiction, invalid. It is, however, impossible to sever from the valuation made by the arbitrator the value of the depreciation and appreciation included by the arbitrator. The award must, therefore, fail in its entirety.\n32.  In this view of the case, we do not think it necessary to consider whether the plea raised by the remaining partners that the award is vitiated on the ground that the arbitrator accepted from the retiring partners documents prepared from the books of account without giving an opportunity to the remaining partners to explain those documents. It was the case of Chintamanrao that these documents were prepared and handed over to the arbitrator without giving any notice to him. It was the case of the retiring partners that the documents consisted merely of extracts of entries in the books of account, and that in any event Chintamanrao had assented to those documents being included in the record of the arbitrator. For the reasons set out by us in dealing with the first plea for setting aside the award, and that plea having succeeded, we do not think it necessary to enter upon the respective contentions of the parties on the second ground.\n33.  We accordingly hold that the award was properly set aside by the Courts below.\n34. Counsel for the retiring partners submitted that on the view taken by us, the award should be remitted to the arbitrator under s. 16 of the Arbitration Act, 1940. No such request was, however, made by them in the Trial Court or in the High Court, and we will not be justified in the circumstances of the case in acceding to that request. We may observe that we have not heard counsel on the question whether in the circumstances of the case and on the conclusion recorded, we have the power under s. 16 to remit the award to the arbitrator. The retiring partners have also not asked for an order for supersession of the arbitration agreement in exercise of the powers of the Court under s. 19. We have, therefore, refrained from considering that question also.\n35.  The appeal fails and is dismissed with costs in one set.\nHIDAYATULLAH, J.-\n36.  This appeal arises out of an arbitration award which was set aside by the Additional District Judge, Sagar on the objection of the respondents. The judgment of the Additional District Judge was confirmed on appeal by the High Court and the present appeal has been filed on a certificate granted by the High Court under Art. 133 (1)(c) of the Constitution. The arbitration was without the intervention of the Court. Previously it proceeded before three arbitrators but the authority of two of the arbitrators was revoked by the Additional District Judge, Sagar, at the agreed request of the parties to the reference. It then proceeded before one Chaturbhuj V. Jasani who gave his award on January 9, 1959. The arbitration proceedings were necessary because of the retirement of the appellants from a firm called Virajlal Mannilal & Co. which at that time consisted of eight partners in three groups. These groups were the three appellants (Jivraj and his two sons) owning -/4/3 share, respondents Nos. 1-3 (Chintamanrao and his two sons) owning -/7/6 share and the two remaining respondents, who are brothers, owning the balance. By agreement this retirement was to take place on April 15, 1958. In revoking the award the High Court, in concurrence with the court below, has upheld two objections-(a) that the arbitrator exceeded his jurisdiction and (b) that he was guilty of misconduct in receiving some evidence behind the back of Chintamanrao.\n37.  The firm of which the several parties here were partners had a written deed of partnership executed on February 16, 1956. This deed replaced earlier deeds to which reference is not necessary. The partnership kept its accounts from Diwali to Diwali and every year it drew up a balance sheet and a profit and loss account, copies of which documents were given to all the partners. The accounts so stated were subject to objection but if none was made, they were conclusive and binding on the partners. All this was provided in the deed of partnership which also provided for the retirement of partners and its laid down special terms as follows:\n\"In case of retirement of any partner the valuation of the Firm will be made on the following basis for the purpose of settling the account of the retiring partner:-\n(a) Goodwill of the Firm: That is, right to use the trade marks, trade labels and the name of the Firm.\nIn making the valuation of the above, the net profits of the last five years will be taken as the value of the Goodwill of the Firm.\n(b) Outstandings, Udhari (Recoveries): That is, loans and debts outstanding against persons other than partner will be calculated at 85 % of the book value of the Firm.\n(c) Stock of Raw Materials: That is, tobacco, bidis, bidi leaves, labels and other moveable property will be valued at the book value of these in the books of the Firm and all such stocks and moveables, thus valued shall be given to the following partners.\n(d) Immovable Property: Such as buildings, godowns, gardens, lands etc. will be valued at the purchase price or their book value in the books of the firm as the case may be, and all these shall be given to the remaining partners.\"\n38.  As a result of an arrangement reached aliunde by which the businesses of these partners, which were in different firm names and various places, were to be divided between the appellants on the one hand and the respondents on the other, the parties desired an arbitration to separate the shares of the appellants as partners retiring from the firm Virajlal Mannilal & Co. A deed of reference was executed by them on April 16, 1958. After the usual recitals, it provided that a final account of the partners should be taken with regard to eight matters as far as possible according to and taking into consideration the terms and conditions of the partnership agreement.\" The eight matters were:\nCredits (Udhari).\nDead Stock.\n39.  Stock-in-trade i.e., the raw material or the finished goods invested in the business.\n40.  The Receipt and Payments account of the amounts of the partners.\n41.  It was further provided that the firm Virajlal Mannilal was to continue with the respondents after the appellants had retired therefrom and the appellants were to be. paid an amount to be determined by the arbitrator and in such a manner and on such conditions as he might direct. The arbitrator having filed the award in Court, the respondents filed objections, only two of which noticed above succeeded and the award was set aside. I shall therefore proceed straight to those objections of which only the first was fully argued before us. In making his award the arbitrator gave the appellants a -14/3 share from a lump amount of RS. 32 lacs which he described as \"goodwill\" of the firm, adjusting, in the respective shares of the three appellants in that sum, all amounts standing to their credit or debit, as the case may be, in the account books of the firm. He also assessed the \"goodwill\" for the period from Diwali to the date of retirement and made suitable additions. His real decision is contained in three or four lines in the award which of course contains other matters and his exact words in Hindi have given rise to some difference because they have been translated in two different ways on the record of the case. The two translations are-\n(1) The value of the goodwill of the whole firm 1 assess at Rs. 32,000,00, (Rupees thirtytwo lacs). In this sum property, dead stock and depreciation and appreciation of Udhari are also included;\n(2) The value of the goodwill of the whole firm 1 assess at Rs. 32,000,00/- (Rupees thirtytwo lacs). In this sum the depreciation and appreciation of property, dead stock and Udhari is also included.\"\n42.  The second translation is probably more accurate than the first, but to my mind it is not a matter of mere words but of what the arbitrator has done. The award is in Hindi and the two words \"appreciation\" and \"depreciation\" are in English. They might well have been used to still all controversy about issues which the parties had raised before him relating to these matters. The arbitrator might, in other words, have used these words loosely without meaning anything except to show that he had looked into everything which the parties desired him to see. The dispute is thus whether the arbitrator exceeded his jurisdiction by adding back depreciation amounts to the book value and/or allowing for appreciation of property which was successfully claimed by the respondents in the High Court and the Court below to be not open to him?\n43.  In this appeal it was contended on behalf of the appellants that the deed of partnership as well as the order of reference left the arbitrator a free hand and even if the arbitrator wrongly interpreted the deed of partnership and did add back the depreciation and/or appreciation, no question of jurisdiction could arise. Reliance is placed upon the observations of the Judicial Committee in the well-known case of Chamsey Bhara & Co. v. Jivraj Balloo Spg. & Wvg. Co., I.L.R. 47 Bom. 578 where it was observed:\n\"An error in law on the face of the award means, in their Lordships' view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound. Here it is impossible to say, from what is shown on the face of the award, what mistake the arbitrators made. The only way that the learned judges have arrived at finding what the mistake was is by saying; \"inasmuch as the arbitrators awarded so-and- so, and inasmuch as the letter shows that the buyer rejected the cotton, the arbitrators can only have arrived at that result by totally misinterpreting Rule 52\". But they were entitled to give their own interpretation to Rule 52 or any other Article, and the award will stand unless, on the face of it, they have tied themselves .down to some special legal proposition which then, when examined, appears to be unsound.\"\n44.  Mr. Desai contends that the arbitrator might have interpreted the partnership deed wrongly but that was a matter within his jurisdiction and the error, if any, not being one of law on the face of the award, the Civil Court had no authority or jurisdiction to set aside the award. The other side contends, as has so far been held in the case, that the reference, read with the partnership deed, created an area of jurisdiction which the arbitrator has outstepped. The first point is therefore to decide what were the limits of the arbitrator's action as disclosed by the reference and the deed of partnership and then to see what the arbitrator has actually done and not what be may have stated loosely in his award. This is the only way in which the excess of jurisdiction can be found If the interpretation of the deed of partnership lies with the arbitrator, then there is no question of sitting in appeal over his interpretation, in view of the passage quoted above from Champsey's case but if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him, and the court can find that he has exceeded his jurisdiction on proof of such action.\n45.  The arbitrator derived his authority from the reference and we must turn to its terms in the first instance. The material portion has been quoted and it shows that in view of the retirement of Jivraj and his sons, parties considered it necessary \"to effect the final account of the retiring partners with regard to the matters mentioned below as.' far possible according to and taking into consideration the terms and conditions of the partnership agreement\" and then followed the eight items. The words underlined are in the recitals but they do show that the parties desired a division in accordance with the terms of the partnership agreement. The words \"as far possible\" show some latitude in one sense, but the force of those words is to be discovered with the aid of the other words \"according to and taking to consideration etc.\" which lay down that the terms of the partnership agreement must prevail over personal opinion. The partners appointed the arbitrators to decide the eight matters and to enable them to give their decision undertook by cl. 7 of the reference to furnish all accounts, documents and information which the arbitrators might require of them.\n46.  Now the deed of partnership which was to prevail as far as its terms were applicable provided that to settle the final account of the retiring partners four items of assets should be valued in a particular way. These directions were contained in cl.' 13 of the deed already set out earlier. Thus goodwill was equal to five years' net profits; debts due to the firm were to be taken not at their book value but at 85 % of that value; stocks of raw materials were to be valued at book value; and immovable properties at purchase price or their book value in the books of the firm as the case may be. The goodwill took no account of anything but the net profits. Admittedly, the net profits of the preceding five years were Rs. 21,70,650/ 10/-. This set at rest sub-cl. (a) of cl. 13 of the partnership agreement. Admittedly also the outstandings (Udhari) came to Rs. 9,16,366/- at their book value and 15% thereof came to Rs. 137,354/13/6. The net Udhari therefore was Rs. 7,79,011/2/6. Differences really arose in the matter of valuation of raw materials and immovable properties and in this connection. the appellants asked to see an account of gross profits for the past five years which the arbitrator ordered Chintamanrao to produce. According to the appellants the value of properties given by Chintamanrao was the written down value and the right figure according to the agreement was not Rs. 6,24,369/- as stated by Chintamanrao but Rs. 16,57,000/-. In reply Chintamanrao stated that it was not the practice of the firm to prepare an account of gross profits but he added that gross profits could be calculated from the account books by the other side or by the arbitrator and he offered the services of an accountant to prepare such an account. The documents which the arbitrator is said to have received behind the back of Chintamanrao (though not some of the other respondents) are the abstracts which show the gross profits and what was excluded to reach the net profits. The net profits in these accounts and the net profits given by Chintamanrao agree. I do not refer to the dispute about the production of the documents since that part of the case was not argued before us, but these accounts prime facie do show that in working out net profits for the five years, depreciation of immovable property and goods was taken into account. The same depreciation appears to have been taken into account in the balance sheet while valuing the assets against the liabilities. In other words depreciation of immovable properties and goods over the five years for which the goodwill was to be calculated appeared to have been taken twice over.\n47.  I would have persuaded myself to go into this matter more deeply but for the fact that such depreciation does not altogether account for the difference between 21 lacs and 32 lacs. The balance sheets show a very slender difference between the assets and liabilities over the five years and it may be taken that the value of Udhari, raw materials and immovable properties is offset by the liabilities. Nothing remains except a very petty sum as profit to be carried over for addition to the goodwill. The duplicated depreciation does not in fact account for the increase from Rs. 21 lacs to Rs. 32 lacs. The conclusion is therefore inescapable that the arbitrator meant what he said when he spoke of including appreciation and depreciation in the valuation of the properties etc. For this reason he must be held to have exceeded his jurisdiction and it is not a question of his having merely interpreted the partnership agreement for himself as to which the Civil Court on authority could have had no say, unless there was an error of law on the face of the award.\n48.  Reliance is placed upon the case of Cruickshank and others v. Suiherland and others, [1923] 92 L. J. Ch. 136 that if accounts in the past were not prepared to meet the contingency of retiring partners, the accounts must be recast for this special purpose and the arbitrator must necessarily have freedom to value property in his own way and not by accepting old accounts already made by the partners. The intention here was that the arbitrator should prepare the final accounts as the partners would themselves have done under the partnership agreement, and the arbitrator had to follow cl. 13 of the partnership agreement which was binding on the partners and therefore on him. The partnership agreement did not speak of market value or fair value. It stated that the purchase price or the book value as the case may be alone could be taken into account. This meant that the book value where available and the purchase price in other cases only were to enter in the calculations. There was thus no option to go to fair value or market price at all.\n49.  I do not think that we should supersede the arbitration agreement under s.19. No circumstance was made out for such a course. I would have directed a remit to the arbitrator under s. 16 of the Arbitration Act 1940 but my brethren take a different view of the matter and I leave the matter there.\n50.  The contention of the appellants on the question of jurisdiction decided against them must fail and I agree that the appeal should be dismissed with costs.\nAppeal dismissed.\n"}
+{"id": "JnOng0wVJY", "title": "", "text": "Kanpur Nagar Mahapalika v Messrs Narain Das Haribansh\nSupreme Court of India\n\n20 August 1969\nCivil Appeal No. 1749 of 1966. Appeal from the judgment and decree dated May 3, 1962 of the Allahabad High Court in F.A.F.O. No. 330 of 1960.\nThe Judgment was delivered by : A. N. Ray, J.\n1. This is an appeal from the judgment dated 3rd May, 1962 passed by the High Court at Allahabad reversing the order of the Civil Judge setting aside an award. The appellant was formerly known as Municipal Board, Kanpur and thereafter as Kanpur Nagar Mahapalika. The appellant in the former name of Municipal Board, Kanpur and the respondent entered into, a contract in writing for construction of zone pumping stations and reservoirs at Kanpur. One of the clauses in the said agreement in writing contained an arbitration agreement between the parties.\n2. The respondent filed original suit No. 45 of 1946 in the Court of Civil and Sessions Judge, Kanpur, against the Municipal Board, Kanpur and claimed a sum of Rs. 60, 802-4-9 representing the claims on account of balance sum due according to the final bills, interest on the amount due, refund of security deposit and interest thereon. The suit was instituted in the year 1946. The Municipal Board, Kanpur thereafter made an application under section 34 of the Arbitration Act, 1940 for stay of the suit contending that the suit related to a matter agreed to be referred to arbitration. On 9th August, 1952, the Court ordered stay of the proceedings. The plaintiff preferred an appeal against the order. By an order dated 4th November, 1957 the High Court at Allahabad directed that since the appeal was not pressed by the plaintiff the Court should proceed with the matter of reference. Thereafter on 17th May, 1958 the Court of Additional Civil Judge, Kanpur sent the matter to Shri A.K. Roy, Superintending Engineer, who was appointed an arbitrator on the reference.\n3. The arbitrator on 8th March, 1960 made an award in favour of the plaintiff respondent for the sum of Rs. 42,772-2-9 on account of final bill, a sum of Rs. 9,705/on account of refund of security deposit and interest on the security deposit.\n4. The appellant thereafter made an application for setting aside the award on the ground that the arbitrator misconducted himself in the proceedings by not properly considering and deciding that the claim of the plaintiff was barred by s. 326 of the U.P. Act 2 of 1916. The Additional Civil Judge, Kanpur by judgment dated 31st May, 1960 set aside the award by holding that the arbitrator wrongly decided the point of limitation and thereby misconducted himself.' The High Court referred to two lines of decisions of the Allahabad High Court on the question as to whether the claim by the contractor for money due on account of the work done by him for the Municipal Board was governed by s. 326 of the U.P. Act prescribing six months as the period of limitation or by the period of limitation for three years under the Limitation Act. The High Court came to the conclusion that if the arbitrator had decided it in favour of the plaintiff and did not accept the prescribed period of limitation under s. 326 of the Municipalities. Act, it would not be an error of law apparent on the face of the Award.\n5. Counsel for the appellant contended that the award in the present case was bad by reason of an error apparent on the face of the award. If an error of law appears on the face of the award it is a ground for remitting it or setting it aside. An exception arises where the parties choose specifically to refer a question of law to arbitration.\n6. This Court in the case of Messrs. Alopi Parshad and Sons Ltd. v. Union of India, [1962] S.C.R. 793 1960 Indlaw SC 428 pointed out the distinction between a general reference on the one hand and the specific reference on the other on any question of law. In the present case, the award does not lay down any proposition of law on the question of limitation. The award does not put any construction on s. 326 of the Municipalities Act. Lord Dunedin in Champsey Bhara & Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd, [1923] A.C.480 said \"an error of law on the face of the award means ...... that one can find in the award, or in a document actually incorporated thereto., as, for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which is the basis of the award and which one can then say is erroneous\". The award in the present case cannot be impeached either for stating the reasons for the judgment or for stating any legal proposition which is the basis of the award.\n7. This Court in the case of Dr. S. Dutt v. University of Delhi,A.I.R. 1958 S.C. 1050 1958 Indlaw SC 202 said \"in our view all that is necessary for an award to disclose an error on the face of it is that it must contain either in itself or in some paper intended to be incorporated in it, some legal proposition which on the face of it and without more, can be said to be erroneous\". In the present case, it cannot be predicated of the award that there is any proposition of law forming the basis of the award, and, therefore, it cannot be said that there is any error apparent on the face of the award. The arbitrator is under the agreement in the present case to decide the questions which were within the province of the arbitrator's jurisdiction. It cannot be said on the face of the award that the arbitrator has decided on any principle of construction which the law does not countenance.\n8. Counsel for the appellant contended that the arbitrator should have specifically dealt with the question of limitation. It is sufficient if the arbitrator gives an award on the whole case and he need not deal with each issue separately. It was open to the arbitrator to decide on the rival contentions of the parties as-to limitation. In doing so, if an arbitrator makes a mistake either in law or on fact and if such mistake does not appear on the face of the award, the award will not be bad notwithstanding any mistake. We must not in the present case be understood to express any opinion that there was however any mistake.\n9. The High Court was correct in refusing: to set aside the award. For the reasons mentioned above, the appeal fails and is dismissed with costs.\n"}
+{"id": "4HZKjht3X1", "title": "", "text": "Union of India v A.L. Rallia Ram\nSupreme Court of India\n\n19 April 1963\nCivil Appeal No. 414 of 1961, Appeal from the judgment and decree dated April 17, 1958 of the Punjab High Court in F.A.O. No. 75 of 1951.\nThe Judgment was delivered by: J. C. Shah, J.\n1. This is an appeal with certificate under Art. 133 (1) (c) of the Constitution against the order of the High Court of Punjab in First Appeal No. 75 of 1951 confirming the order of the Subordinate Judge, Delhi, refusing a motion to set aside an award directing payment by the Union of India of Rs. 3,26,251/6/3 with costs and future interest a per cent to the respondent. In August, 1946, the Chief Director of Purchases (Disposals), Food Department, Government of India, invited tenders for purchasing the stock of American cigarettes lying in Calcutta, Karachi, Delhi and Agra. The respondent submitted his tender offering to purchase the entire stock at uniform rate of Re. /8/3 per packet of 20 cigarettes. The total value of the stock offered at that rate amounted approximately to Rs. 39 lakhs. The Government of India accepted the tender. The acceptance letter (with which was enclosed Form F.D. (M)70 setting out the general conditions of contract) was signed by the Chief Director of Purchases. Condition No. 13 in Form F.D. (M) 70 contained an arbitration clause:\n2. In the event of any question or dispute arising under these conditions or any special Conditions of Contract or in connection with this contract (except as to any matters the decision of which is specially provided for by these conditions) the same shall be referred to the award of an arbitrator to be 'nominated by the Chief Director and an arbitrator to be nominated by the Contractor or in the case of the said arbitrators not agreeing, then to the award of an Umpire to be appointed by the arbitrators in writing before proceeding on the reference and the decision of the arbitrators, or in the event of their not agreeing of the Umpire appointed by them shall be final and conclusive\nx x x x\n3. The respondent took delivery of 29,93,597 packets of cigarettes and paid Rs. 17,78,573/6/4 but on inspection he found that some cigarettes were mildewed and unfit for use. A Board of Survey appointed by the Government of India to inspect the undelivered stock reported that cigarettes of the value of Rs. 6,58,453/ were wholly \"unfit for issue,\" for the remaining cigarettes the Board recommended reduction in price at certain rates. The respondent did not agree to accept the goods on the revised terms reported by the Board and requested the Government of India to agree to a uniform reduction of 50 per cent in price on the cigarettes delivered to him as well as those still lying with the Government. The Government of India thereafter decided to cancel the contract in respect of the undelivered cigarettes, and offered to take back from the respondent, out of the stock of cigarettes delivered such as \"were in their original packing and could be identified,\" subject to the condition that no claim will be made by the respondent in respect of freight, storage, rents, charges or any other expenses incurred by the respondent in connection with the cigarettes taken back by the Government. The respondent accepted the offer made by the Government, reserving his right \"to claim incidental expenses.\" 24,13,500 packets of cigarettes in the original packing were then returned by the respondent and between June 13, 1947 and February 8, 1948, Rs. 14,54,215/7/ were refunded to him by the Government of India. On June 26, 1948 the respondent addressed a letter to the Director General of Disposals intimating that he had appointed M. W. Lewis as arbitrator on his behalf in accordance with el. 13 of the general conditions of F.D. (M) 70 and called upon the Director General of Disposals to appoint his arbitrator. By his letter dated July 7, 1948 the Director General informed the respondent that the Government of India had appointed Bakshi Shiv Charan Singh as their arbitrator, reserving full liberty to take all pleas before the arbitrator including the plea that no dispute between the parties which could be referred to arbitration survived.\n4. The arbitrators entered upon the reference but could not agree upon a decision, and the dispute was referred to an umpire. The umpire by his award dated January 30, 1950 awarded to the respondent Rs. 1,32,417/10/ for loss suffered in respect of the 6,34,270 packets of cigarettes not returned by him; Rs. 1,25,000/ for incidental expenses; and Rs. 68,833/12/3 as interest. The umpire accordingly awarded against the Union of India Rs. 3,26,251/6/3 and future interest and costs of the arbitration. The respondent applied to the Subordinate Judge, Delhi for filing the award under s. 14 of the Arbitration Act, and the Union of India applied for an order setting aside the award. It was contended, by the Union of India that there was no legally binding contract between the Union and the respondent, for the acceptance note was not signed on behalf of the Governor General of India, and the entire proceeding including the appointment of the arbitrators and the umpire was vitiated for want of compliance with s. 175 (3)of the Government of India Act, and that in any event the award contained errors of law apparent on its face. The Subordinate Judge, refused the motion for setting aside the award and ordered that a decree be issued in terms of the award. In appeal against the order refusing to set aside the award, the High Court of Punjab confirmed the order.\n5. Two questions arise for determination in this appeal:\nWhether the award is liable to be set aside on the ground that there was in existence no valid arbitration agreement in conformity with s. 175 (3) of the Government of India Act, 1935 which authorised the umpire to make his award; and whether the award is liable to be set aside on the ground that it is erroneous on the face thereof. The letter accepting the tender dated September 9, 1946 issued under the signature of the Director of Purchases recited that the tender submitted by the respondent was accepted to the extent shown in the schedule attached to the letter and subject to the special terms and conditions in the letter from the Chief Director of Purchases, and the general conditions of contract in Form F.D. (M) 70 which accompanied that letter. The general conditions of contract by the first clause defined 'Government' as meaning \"the Governor General for India in Council and when the context so admits his successors and assigns and the Government of India and officers acting for him or them.\" By cl. 2 it was provided that the Governor General for India in Council was not bound to accept the highest or any tender or to assign reasons for non acceptance. The other clauses prescribed conditions for payment of price, state of goods, risk, delivery, liability, failure to pay price and failure to take delivery after payment, recovery of sums due, etc. By cl. 13, the arbitration clause was incorporated as a term of the contract. Acceptance of the tender was therefore subject to the special conditions in the letter of the Chief Director of Purchases and the general conditions in F.D. (M) 70, and in case of conflict special conditions were to prevail over the general conditions.\n6. Did the terms of the acceptance letter which formed the contract between the parties comply with the requirements of the Government of India Act, 1935? S. 175 (3) provided:\n\"All contracts made in the exercise of the executive authority of the Dominion or of a Province shall be expressed to be made by the Governor General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor General or Governor by such persons and in such manner as he may direct or authorise.\"\n7. The section was in terms mandatory. Before a liability binding the Dominion of India could arise, the contract had to be expressed to be made by the Governor General, if it was made in exercise of the executive authority of the Dominion, and it had to be executed on behalf of the Governor General, and by such persons and in such manner as he directed or authorised. This Court in Seth Bikhraj Jaipuria v. Union of India [1962] 2 S.C. R. 880 1961 Indlaw SC 454, , held in dealing with the validity of contract which did not conform to the requirements of s. 175 (3) of the Government of India Act that the provisions of s. 175 (3) were mandatory and not directory and if the contract did not conform to the requirements prescribed by s. 175 (3), no obligation enforceable at law flowed therefrom.\nThe authority of an arbitrator depends upon the authority conferred by the parties by agreement to refer their differences to arbitration. By s. 2 (a) of the Arbitration Act, 1940 \"arbitration agreement\" means \"a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.\" A writing incorporating a valid agreement to submit differences to arbitration is therefore requisite:it is however not a condition of an effective arbitration agreement that it must be incorporated in a formal agreement executed by both the parties thereto, nor is it required to be signed by the parties; There must be an agreement to submit present or future differences to arbitration, this agreement must be in writing, and must be accepted by the parties. Cl. 13 in Form F.D. (M) 70 fulfils all these requirements. But the Dominion of India being a party to the arbitration agreement, to be binding the agreement had also to conform to the requirements of s. 175 (3) of the Government of India Act, 1935, for an arbitration agreement is a contract within the meaning of the Government of India Act and it must, to bind the Dominion of India, be made in the form prescribed by that section. The question which then falls to be determined is whether the letter accepting the tender of the respondent conformed to the requirements of s. 175 (3)of the Government of India Act.\n8. S. 175 (3) does not in terms require that a formal document executed on behalf of the Dominion of India, and the other contracting party, alone is effective. In the absence of any direction by the Governor General under s. 175 (3) of the Government of India Act prescribing the manner a valid contract may result from correspondence if the requisite conditions are fulfilled. The contracts for sale of \"War disposal\" goods were not directed by the Governor General to be made by a formal document executed on behalf of the GovernorGeneral as well as by the purchasing party. It is true that s, 175 (3) uses the expression \"executed\" but that does not by itself contemplate execution of a formal contract by the contracting parties. A tender for purchase of goods in pursuance of an invitation issued by or on behalf of the Governor General of India and acceptance in writing which is expressed to be made in the name of the Governor General and is executed on his behalf by a person authorised in that behalf would conform to the requirements of s. 175 (3). The goods offered to be sold belonged to the Government of India. The tender notice was also issued by the Government of India, Department of Food. The title of the notice was \"Tender Notice issued by the Government of India, Department of Food (Division III), New Delhi.\" The name of the authority issuing the tender notice was \"Government of India, Department of Food (Division III), office of the Chief Director of Purchases, Jamnagar House, New Delhi.\n\"By el. 9 delivery was to be made, ex site the Government agreeing to afford assistance for movement to the extent feasible, and by cl. 11 import duty on the cigarettes was to be , paid by the Government. Cl. 6 provided that the stock of cigarettes to be delivered will be surveyed by the Survey Board appointed by the Government of India and the decision of the Board shall be binding on the tenderer. In the letter dated August 21, 1946, submitting his tender the respondent stated that he, was Willing to offer a rate of Re. /8/3 per packet only on the condition that the Government gave a guarantee not to undersell the cigarettes at any stage.\";\n9. It appears that the respondent had a discussion with the Chief Director on September 3, 1946, and certain terms were agreed upon, which were robe incorporated in the acceptance letter. In his letter dated September 4, 1946, the respondent set out these terms. These terms clearly show that the Government undertook certain obligations, such as appointment of a Survey Board, if the goods were rejected on the ground that they were unfit for consumption, issue of separate delivery letters for each Depot to facilitate delivery, and an assurance that the Government shall tender help in getting railway priority and other transport facilities in the dispatch of goods lying at the various depots, undertaking transportation from the Assam Depot to Calcutta at the risk and cost of the Government. These conditions were incorporated in the acceptance note issued by the Chief Director of Purchases. The acceptance note is also headed \"Government of India, Department of Food (Div.III) New Delhi\" and refers to the obligations of the Dominion in cls. 6, 9, 10 and by cl. 13 made the special conditions prevail over the general conditions which were incorporated in the contract. The correspondence between the parties ultimately resulting in the acceptance note, in our judgment, amounts to a contract expressed to be made by the Government and therefore by the Governor General, because it was the Governor General who .had invited the tender through the Director of Purchases, and it was the Governor General who through the Chief Director of Purchases accepted the tender of the respondent subject to the conditions prescribed therein. The authority of the Chief Director of Purchases to contract for sale of \"War disposal\" goods and sign the contract is not denied. The Chief Director of PurChases has subscribed his signature in his official designation and he has not stated in the description that the contract was executed on behalf of the Governor General, but on a fair reading of the contents of the letter, in the light of the obligations undertaken thereunder, it would be reasonable to hold that the contract was executed on behalf of the Governor General. No rules made by the Governor General have been placed before the Court showing that in executing a contract for the sale of \"Wardisposal \" goods, the officer authorised in that behalf must describe himself as signing on behalf of the Governor General of India.\n10. The High Court held that the Government of India having agreed to refer differences to arbitration and having taken part in the proceeding before the arbitrators and the umpire, had waived the objection as to the illegality of the contract and could not therefore raise any such objection in an application for setting aside the award. We are unable to agree with that view. The requirements of s. 175 (3) of the Government of India Act are mandatory, and the fact that the Government of India did not contend before the arbitrator that there was in law no arbitration agreement on which the arbitrator was competent to act would not invest the arbitration agreement with any validity. It is from the terms of the arbitration agreement that the arbitrator derives his authority to arbitrate: if in law there is no valid arbitration agreement, the proceedings of the arbitrator could be unauthorised. Every contract to bind the Government must comply with the requirements of s. 175 (3) of the Government of India Act, 1935, and waiver will not preclude the Government from pleading absence of a contract in consonance with the law. An award being a decision of an arbitrator whether a lawyer or a layman chosen by the parties, and entrusted with power to decide a dispute submitted to him is ordinarily not liable to be challenged on the ground that it is erroneous. In order to make arbitration effective and the awards enforceable, machinery is devised for lending the assistance of the ordinary courts. The Court is also entrusted with power to modify or correct the award on the ground of imperfect form or clerical errors, or decision on questions not referred, which are severable from those referred.\n11. The Court has also power to remit the award when it has left some matters referred undetermined, or when the award is indefinite, where the objection to the legality of the award is apparent on the face of the award. The Court may also set aside an award on the ground of corruption or misconduct of the arbitrator, or that a party has been guilty of fraudulent concealment or wilful deception. But the. Court cannot interfere with the award if otherwise proper on the ground that the decision appears to it to be erroneous. The award of the arbitrator is ordinarily final and conclusive, unless a contrary intention is disclosed by the agreement. The award is the decision of a domestic tribunal chosen by the parties, and the civil courts which are entrusted with the power to facilitate arbitration and to effectuate the awards, cannot exercise appellate powers over the decision. Wrong or right the decision is binding, if it be reached fairly after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement. But it is now firmly established that an award is bad on the ground of error of law on the face of it, when in the award itself or in a document actually incorporated in it, there is found some legal proposition which is the basis of the award and which is erroneous. An error in law on the face of the award means:\n\"you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party, that opens the door to setting first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound\"\n12. Champsey Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Ltd. (1932) L.R. 50 I. A, 324. But this rule does not apply where questions of law are specifically referred to the arbitrator for his decision; the award of the arbitrator on those questions is binding upon the parties, for by referring specific questions the parties desire to have a decision from the arbitrator on those questions rather than from the Court, and the Court will not, unless it is satisfied that the arbitrator had proceeded illegally interfere with the decision.\nThe argument advanced by the respondent that in the present case specific questions were referred to the umpire, and his decision on those questions must be regarded as binding and not liable to be re opened, even assuming that there is some error on the face of the award, must therefore be examined. The arbitrators on July 16, 1948 called upon the parties to file their respective statements of claim and written statement. The respondent filed on August 16, 1948, an argumentative claim petition setting out in paragraph 22 the three heads under which he made a total claim of Rs. 5,95,518/13/ . To this claim, the Dominion of India filed a written statement denying the claims made by the respondent. A replication was filed by the respondent to the written statement. The arbitrators recorded that the parties had complied with the order, that issues had been proposed by counsel for the respondent, and that the parties were agreed that the dispute between them be tried on those issues. Then they set out ten substantive issues, and evidence was led before the arbitrators.\n13. The arbitrators recorded that they were unable to agree upon the decision, and therefore they submitted the case to the umpire R.B. Nathoo Ram. The umpire entered upon the reference, the evidence which was recorded before the arbitrators was accepted as evidence before the Umpire, and the umpire proceeded to pronounce his award after recording reasons in support of his conclusions on the diverse issues which were raised before the arbitrators. But filing of pleadings pursuant to the directions of the arbitrators and agreeing to a trial of the dispute on the issues raised by the arbitrators cannot be regarded as reference of specific questions implying an agreement between the parties that they intended to give up their right to resort to the Courts even if the award was vitiated on account of an error apparent on the face thereof. The only permissible inference from the agreement recorded by the arbitrators was that the parties agreed to have the dispute8 adjudicated on the issues raised, and not to submit the issues raised for adjudication.\n14. The terms of el. 13 of the contract F.D. (M) 70 which incorporated the arbitration agreement are general. By his letter dated June 26, 1946 the respondent intimated the Director of Purchases that he had appointed an arbitrator on his behalf \"in accordance with clause No.13 of the general conditions of the contract\" and the appointment of an arbitrator by the Union by their letter dated July 7, 1948 (subject to the reservation of a right to contend that there was no dispute) for adjudication of the claim made by the respondent. In these two letters there is no reference to any specific questions to be referred to the arbitrators: nor can the filing of pleadings in support of their respective cases by the parties pursuant to the direction given by the arbitrators, and the framing of issues arising thereon with the object of focussing the attention of the parties on the question to be decided for adjudicating upon the dispute amount to a reference on specific questions, rendering the award binding upon the parties. In Seth Thawardas Pherumal v. The Union of India [1955] 2 S.C.R. 48 1955 Indlaw SC 11. , Bose, J, delivering the judgment of the Court observed in dealing with the contention that there was a reference of a specific question, and the award was nor liable to be questioned even on the ground that it disclosed an error on its face:\n\"Therefore, when a question of law is the point at issue, unless both sides specifically agree to refer it and agree to be bound by the arbitrator's decision, the jurisdiction of the Courts to set an arbitration right when the error is apparent on the face of the award is not ousted. The mere fact that both parties submit incidental arguments about point of law in the course of the proceedings is not enough.\"\n15. The learned Judge also observed after referring to F.R. Absalom Ltd. v. Great Western (London) Garden Village Society [1933] A.C. 592, 616:\n\"Simply because the matter was referred to incidentally in the pleadings and agruments in support of, or against, the general issue about liability for damages, that is not enough to clothe the arbitrator with exclusive jurisdiction on a point of law.\"\n16. In dealing with a similar question in M/s. Alopi Parshad & Sons Ltd. v. The Union of India [1960] 2 S. C. R. 793 1960 Indlaw SC 428. , the Court observed:\n\"Issues were undoubtedly raised by the arbitrators, but that was presumably to focus the attention of the parties on the points arising for adjudication. The Agents had made their claim before the arbitrators, and the claim and the jurisdiction of the arbitrators to adjudicate upon the claim, were denied. The arbitrators were by the terms of reference only authorized to adjudicate upon the disputes raised. There is no foundation for the view that a specific reference, submitting a question of law for the adjudication of the arbitrators, was made.\"\n17. In Durga Prosad Chamria v. Sewkishendas Bhattar A.I.R. (1949) P.C 334, the Judicial Committee held that questions of law were specifically referred to arbitration where in a pending suit after issues were raised with the consent of parties \"the outstanding matters\" in the suit were referred to three named arbitrators, conferring upon them special enumerated powers. But the decision was reached in the special circumstances of the case, and not on the view that where agreed issues are raised before the arbitrator on the pleadings filed before him, the reference must be regarded as a reference on the specific questions incorporated in the issues. Undoubtedly, under an arbitration agreement which is initially in terms general the parties may after disputes have actually arisen, refer specific questions to arbitration. But each case must depend upon its facts. Filing of pleadings before the arbitrators, or even an agreement that certain issues arise on the pleadings will not always yield the inference that the parties agreed to refer specifically the questions incorporated in the issues to the arbitrator, so as to preclude themselves from challenging the award on the ground of error of law on the face of the award.\n18. The test indicated by Lord Russell of Killowen in F.R. Absalom Ltd. v. Great Western (London) Garden Village Society Ltd. [1933] A.C. 592,616 adequately brings out the distinction between a specific reference of a question of law, and a question of law arising for determination by the arbitrator in the decision of the dispute. was observed :\n\" x x, it is, I think, essential to keep the case where disputes are referred to an arbitrator in the decision of which a question of law becomes material distinct from the case in which a specific question of law has been referred to him for decision.\nThe authorities make a clear distinction between these two cases, and, as they appear to me, they decide that in the former case the Court can interfere if and when any error of law appears on the face of the award, but that in the latter case no such interference is possible upon the ground that it so appears that the decision upon the question of law is an erroneous one.\"\nThen after referring to the authorities it was observed\n\" x x x\n19. The primary quarrel between the parties was whether, if the value of work executed and materials on site up to and including March 11, 1929, had been truly assessed, the net value available for certification on that date was in excess of(as the contractor alleged) or less than (as the employer contended) the amount which had actually been certified up,to and including that date x x x x. Those were the disputes in regard to the issue of certificates and the validity of the notice' which were in general terms submitted to the arbitrator. No specific question of construction or of law was submitted. The parties had, however been ordered to deliver pleadings, and by their statement of claim the contractor had claimed that the arbitrator should under his powers revise the last certificate issued so as to include therein the excess net value which they had alleged and which the arbitrator has found (though for a reduced amount) to have existed. on March 11, 1929. It is at this point that the question of the construction of condition 30 arose as a question of law, not specifically submitted, but material in the decision of the matters which had been submitted. This question of law the arbitrator has decided; but if upon the face of the award he has decided it wrongly his decision is in my opinion open to review by the Court.\"\nIn the present case the respondent had claimed from the Dominion of India, compensation m respect of the goods delivered to him under the contract, interest on the amounts raised by him for carrying out the contract and for incidental expenses incurred by him after delivery of the goods. That dispute was referred to arbitration pursuant to cl. 13 of Form F.D. (M) 70. Pleadings were filed. by the parties pursuant to the direction of the arbitrators, but thereby the parties did nothing more than state in writing their respective cases. the parties also agreed that certain issues arose on those pleadings but the function of the issues was to focus the attention of the parties to the points on the decision of which the adjudication of the dispute between the parties depended. The issues of law may be material for the determination of the dispute, but they are not issues of law specifically referred to the arbitrators.\n20. There is one more aspect which must be considered. Assuming that during the course of arbitration proceedings, the parties may enter into. a fresh agreement and modify the original terms of reference, and extend or restrict their scope. But such an agreement must, to be effective, amount to an arbitration agreement. The respondent has not relied and could not rely upon any subsequent agreement modifying the agreement of reference, for any subsequent contract between him and the Union of India had also to satisfy the requirements of s. 175 (3) of the Government of India Act, 1935 or Art. 299 of the Constitution if such an agreement took place after the Constitution came into force and such an agreement can only be in the form prescribed by these constitutional provisions. By merely assenting to the issues raised before the arbitrators the advocate appearing on behalf of the Government of India could not assume to himself authority to bind the Dominion or the Union to a specific reference on a question of law, because a reference on a specific question may be effective only if there be an agreement express or implied that the arbitrator will decide the question specifically referred to him and that his decision will be binding upon the parties. In the absence of any such contract in the form prescribed, a plea of an agreement subsequent to the reference would be futile. We are therefore unable to agree with the High Court that specific questions of law were referred to the arbitrators, the decision whereof is binding upon the parties.\nThe question then remaining to be decided is whether the award of the umpire was in law erroneous on the face of it. The umpire has awarded Rs.1,32,417/10/ under the head loss suffered by the respondent in respect of the packets of cigarettes delivered to him. He has awarded Rs. 1,25,000/ in respect of the incidental expenses and Rs. 68,833/12/3 as interests. The Loss suffered in respect of the packets of cigarettes is computed in this manner: the contract rate of cigarettes was Re. 1813 per packet, the respondent was able to sell the packets supplied to him at the rate of 'Re. /4/9 per packet. That a part of the stock of cigarettes supplied to the respondent was mildewed and unfit for consumption is not denied. The respondent was therefore entitled to claim compensation for breach of contract on the ground that the Government of India had committed a breach of warranty.\n21. It appears that the Government disposed of some stock of cigarettes at the rate of Re. /1/9 per packet. The respondent had claimed that the goods supplied to him were only worth Re. /1/9 per packet because that was the price. which the Government recovered by sale of similar goods and he was entitled to get from the Government as compensation the difference at the rate of Re, /6/6 per each packet. The umpire held that the respondent was not entitled to compensation at the rate claimed by him but to get the difference between the price paid and price received by him on sale. In our view no error apparent on the face on this part of the award is disclosed and the award in so far as it awards Rs. 1,32,417/10/ to the respondent under this head is not open to challenge. But on the second head the claim for Rs. 1,25,000/ for incidental expenses cannot be sustained. The umpire in paragraph (xi) of his award observed:\n\"While the Government sold the stocks of cigarettes taken back by it at Re. /1/9 the purchaser was able to get a very substantial higher price. This undoubtedly resulted from the efforts which he put in, advertisement, publicity, storge, transport, payment of agency commission and other overhead expenses. It appears to me that to all such expenses the purchaser is clearly entitled, in addition to the expenses incurred by him with respect to the cigarettes taken by the Government. The law of compensation compels me to hold that all expenses incurred by the purchaser with respect to the cigarettes taken back by the Government must be paid to him.\"\n22. This observation proceeds upon a clear fallacy. The respondent had purchased and taken delivery of 29,74, 270 packets, out of which he sold 6,34,270 packets and returned 23,40,000 packets under an arrangement whereby the Government of India was to take back the goods found with the respondent in their original packing. The respondent had purchased the goods under the acceptance of tender dated September 9, 1946 which provided by cl. 11 that\n\"All sales will be conducted on the distinct understanding that the goods sold are on a 'said to contain' basis. No responsibility for quality will be accepted whatsoever after the delivery is made at the depot\".\nWhen he took delivery of the goods, he became owner of the goods by the express intendment of the contract. The expenditure incurred for advertisement, publicity, storage, agency commission and other overhead expenses since the respondent took delivery was therefore in respect of his own goods and he cannot claim these expenses as part of compensation payable for breach of warrant in respect of goods retained by him. The respondent was undoubtedly entitled to the difference between the contract price and the market price of the goods which he retained, and that compensation has been awarded to him.\n23. Transport and storage charges after the Government agreed to take back the goods, properly attributable to the goods, may also be awarded to the respondent as expense incurred on behalf of the Government of India. But no such claim was made. For the goods returned the respondent could not maintain a claim for damages, because the contract was by mutual arrangement cancelled. For his claim for incidental expenses in respect of goods appropriated by him the respondent's claim could not be, apart from the damages, awarded. The amount of Rs. 1,25,000/awarded by the umpire to the respondent, on the head of incidental expenses could not therefore be awarded as compensation, on any view of the case. The amount has been awarded on an erroneous assumption of law, which is on the face of it erroneous.\nWe. are, therefore, of the view that the award on that part cannot be sustained.\nThe claim for interest was discussed by the umpire in paragraph (ix) of his award:\n24. \"Applying the principles on which compensation is assessed, I have come to the conclusion that the purchaser was entitled to be paid interest on all the moneys paid by him to the Government, with respect to stores taken back by the Government, fight from the date of pay ment up to the date on which moneys were returned. The rate of such interest has to be the same as the rate at which the purchaser paid interest to his bankers. This I find on the evidence to be 0 per cent per annum. Irrespective of the rate at which the Government usually borrows money, the law of compensation compels me to award interest at the rate of 6 per cent per annum.\"\nIt is again difficult to appreciate on what ground, interest could be awarded to the respondent. The contract did not provide for payment of interest in respect of amounts paid by the respondent if the contract fell through. Nor could interest be awarded under s. 61 of the Sale of Goods Act. The right of the seller or the buyer to recover interest or special damages in any case where by law interest or special damages may be recoverable, or to recover the money paid where the consideration for the payment of it has failed, is undoubtedly not affected by the Sale of Goods Act, and by sub s. (2) of s. 61 in the absence of a contract to the contrary, the Court may award interest at such rate as it thinks fit on the amount of the price to the buyer in a suit for refund of the price in case of a breach of the contract on the part of the seller. But the claim made by the respondent was not for refund.of price.\n25. In respect of that part of the contract which was cancelled, by mutual agreement, price paid was refunded. In respect of the goods sold by the respondent his claim was for damages, and damages have been awarded. The respondent claimed before the umpire (and that claim was upheld) that he had to borrow from his bankers a large amount of money for meeting his obligation under the contract with the Government and he was entitled to recover from the Dominion of India interest paid by him to his bankers, for the period during which his moneys remained with the Dominion of India. Mr. Pathak for the respondent submits that the umpire was in this state of affairs competent to award interest on the amount which was detained by the Dominion by way of damages.\nBut as held by the Judicial Committee in Bengal Nagpur Railway Company Ltd. v. Ruttanji Ramji (1937) L.R. 65 I.A. 66. , in the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest, interest cannot be allowed by way of damages caused to the respondents for wrongful detention of their money. In that case in an action against the Railway Company for remuneration for work done by the contractor not covered by the contract Rs. 67,000/ were found due by the Railway Company to the contractor on the basis of fair and reasonable rates. The contractor claimed interest on that amount for the period prior to the date of the suit. The Judicial Committee held that interest on the amount awarded as compensation could not be awarded by way of damages, and there being no contract, nor statute, nor usage in support of such a claim, the claim for interest had to be disallowed.\n26. In dealing with the claim for interest on the principle incorporated in illustration (n) of s. 73 of the Indian Contract Act which is as follows:\n(n) \"A, contracts to pay a sum of money to B, on a day specified. A, does not pay the money on that day; B, in consequence of not receiving the money on that day, is unable to pay his debts, and is totally mined. A. is not liable to make good to B, anything except the principal sum he contracted to pay, together with interest up to the day of payment.\"\nThe Judicial Committee observed:\n\"The illustration, however, does not deal with the right of a creditor to recover interest from his debtor on a loan advanced to the latter by the former. It only shows that if any person breaks his contract to pay to another person a sum of money on a specific date, and in consequence of that breach the latter is unable to pay his debts and is ruined, the former is not liable to make good to the latter anything except the principal sum which he promised to pay, together with interest up to the date of payment. The illustration does not confer upon a creditor a right to recover interest upon a debt which is due to him, when he is not entitled to such interest under any provision of the law. Nor can an illustration have the effect of modifying the language of the section which alone forms the enactment.\"\n27. Illustration (n) therefore does not aid the respondent. Mr. Pathak submitted that interest may be awarded on grounds of equity, and placed reliance upon the Interest Act, 3\" of 1839. Under that Act the Court may allow interest to the plaintiff if the amount claimed h a sum certain which is payable at a certain time by virtue of a written instrument. The Act, however, contains a proviso that interest shall be payable in all cases in which it is now payable by law. This proviso applies to cases in which the Court of Equity exercises jurisdiction to allow interest. As observed by the the Judicial Committee in Bengal Nagpur Railway Company's case (1937) L.R. 65 I.A. 66 after referring to the observation made by Lord Tomlin in Maine and New Brunswick Electrical Power Company v. Hart [1929] A.C. 631,540. , observed:\n\"In order to invoke a rule of equity it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as, for example, the non performance of a contract which equity can give specific performance. The present case does not, however, attract the equitable jurisdiction of the court and cannot come within the purview of the proviso. The judgment of Their Lordships of the Privy Council in Bengal Nagpur Railway Company's case (1937) L.R. 65 I.A. 66 was relied upon in Seth Thawerdas Pherumal's case [1955] 2 S.C.R. 48. in negativing a claim for interest. In that case a contractor had entered into a contract with the Dominion of India for supply of bricks. Under a clause which required that all disputes between the parties to the contract should be referred to arbitration, dispute having arisen, the matter was referred to arbitration and the arbitrator gave award in the contractor's favour.\n28. The Union of India which had succeeded to the rights and obligations of the Dominion contested the award on numerous grounds one of which was the liability to pay interest on the amount awarded. Bose, J, in delivering judgment of the Court observed that the interest awarded to the contractor could not in law be awarded. He pointed out that an arbitrator is not a court within the meaning of the Interest Act of 1839: in any event interest could only be awarded if there was a debt or a sum certain, payable at a certain time or otherwise, by virtue of some written contract at a certain time and there must have been a demand in writing stating that interest will be claimed from the date of the damand. In the view of Bose, J, none of the elements was present and the arbitrator erred in law in thinking that he had the power to allow interest simply because he thought the demand was reasonable.\"\n29. The umpire has awarded interest to the respondent on the footing that for the purpose of carrying out his contract with the Government of India, the respondent was required to make arrangements by borrowing moneys from his bankers and he had to pay interest in that behalf, and when the contract was abandoned after it was partially performed, the Government of India became liable to make good the loss of interest which the respondent suffered. We know of no principle on which the Government of India could be rendered liable for payment of interest in the circumstances relied upon. In respect of that part of the contract which was abandoned,. If any liability to pay interest had arisen it was for the respondent to claim it in settling the terms on which cancellation of the contract was to be made. In respect of the goods which had been returned by him, he could claim compensation for breach of warranty, but such compensation could not include interest as damages for detention of money. Interest was therefore allowed on a view of the law which appeared on the face of the award to be erroneous.\nThis appeal must be partially allowed and the award of the umpire set aside in so far as it awards interest amounting to Rs. 68,833/12/3 and incidental expenses amounting to Rs. 1,25,000/ . The award in so far as it awards Rs. 1.32,417/10/ for loss suffered by the respondent in the matter of 6,34,270 packets of cigarettes is not liable to be set aside. In view of the partial success, there will be no order as to costs throughout.\nAppeal partly allowed.\n"}
+{"id": "phlhHVlnES", "title": "", "text": "Coimbatore District Podu Thozillar Samgamrepresented By Its v Bala Subramania Foundry and Others\nSupreme Court of India\n\n11 August 1987\nC.M.P. No. 46931 of 1985. IN W.P. Nos. 11361-62 of 1983\nThe Judgment was delivered by : Sabyasachi Mukharji, J.\n1.  There were disputes between the partners of the firm Balasubramania Foundry (hereinafter called 'the firm') and several legal proceedings were taken in the courts of Coimbatore, these ultimately came to this Court. This Court by an order dated 2nd of November, 1982 referred the disputes to the Arbitrator. The order stated that the disputes were referred to the sole Arbitrator, Justice K.S. Palaniaswamy failing him Justice C.J.R. Paul and the respective parties including the firm were directed to file their joint memos in all the courts where the suits/proceedings were pending before the Arbitrator. The Arbitrator was directed1 to proceed in accordance with the Arbitration Act. In order to complete the narration, there was an application for appointment of Receiver which was directed to be proceeded with in the trial court. This Court, however, by the said order directed the trial court to dispose of that application.\n2.  By the said order as mentioned hereinbefore in the absence of Justice K.S. Palaniaswamy, Justice C.J.R. Paul duly heard and considered the matter and published the award on 3rd April, 1985.\n3.  It is claimed by Mr. Ghosh, appearing on behalf of respondent no. 1 as well as Mr. Venugopal, appearing on behalf of other respondents supporting that the said award be made a rule of the court and the judgment in terms of the said award be passed. It may be mentioned that the Coimbatore District Podu Thozillar Munnetra Samgam represented by its Secretary being a union of the workers filed writ petitions in this Court being writ petitions Nos. 11361-62 of 1983. Later on another special leave petition being special leave petition No. 2271 of 1983 was filed by the firm against the order of the High Court confirming the order of appointment of Receiver'of the firm. In those proceedings the Court was pleased to pass an order on 17th of February, 1984 that all the claims of the workers for their past dues would be referred for arbitration to the Arbitrator and considered by him. On 27th of July, 1984 this Court was pleased to refer the money claims of one Velmurugan Factory and the money claims of the workers who were members of the Coimbatore District Engineering and General Workers Union to the Arbitrator for adjudicating by arbitration.\n4.  The Arbitrator has duly filed the award dated 3rd April, 1985 in this Court under section 14(1) of the Arbitration Act.A. Rangaswamy, the petitioner herein for whom Mr. Ganguly is appearing has filed an affidavit alleging that the arbitrator was guilty of legal misconduct and there were errors which were amenable to corrections by this Court. It was contended on behalf of the workers also that their claims had not been fully protected. Mr. Sampath, appearing on their behalf has contended that the claims of the workers would amount to about rupees seven lakhs while provision had been made only for rupees three lakhs and even, then there was not sufficient provision. The workers, gratuity, it was contended would come to about rupees seven lakhs while the Arbitrator had really estimated erroneously rupees four lakhs and provisions had been made only for Rs.3,10,000 which according to Mr. Sampath have been further diminished by payments made by the Receiver in the meantime. There is also an application on behalf of the workers' union on these grounds.\n5.  It appears, however, that this objection on behalf of the workers on ground of imperfect protection of workers was under a misconception on behalf of the respondents. It was stated and brought before us that in the last two years there had been sufficient profit to cover the claims of the workers. Indeed it appears that of the 27 workers whose claims had to be settled on account of gratuity, 14 had received the same and a document indicating the payments to them was sought to be filed before us. We are satisfied that sufficient provisions have been made for the existing liabilities of the workers and for any further contingencies in respect of the workers' claims. It cannot be said, therefore, that the award of the Arbitrator is incomplete and left undetermined this dispute. The right to gratuity has been recognised and provision for the same has been made. The respondents Nos. 2, 3, and 5 pleaded before us through counsel that they had no objection to the award being made the rule of the court. The respondent no. I as mentioned hereinbefore is arguing that the award be made the rule of the court. Respondent no. 4 is also supporting that claim.\n6. It is only the petitioner A. Rangaswamy who is the only party opposing the award. It was submitted by Mr. Ganguly in support of his objection that the Arbitrator while holding that the lease in favour of the firm was bad had awarded substantial sum on the basis of the lease. It was further submitted that the Arbitrator while noting the reasons and recording the formal award had applied a reasoning altogether unconnected with the merits of the controversy which amounted to legal misconduct. It was further alleged that the award was inconsistent. In those circumstances, it was submitted that the award so far as it was against the applicant. A. Rangaswami should be set aside. It was submitted that in spite of the alleged lapses in the illegal leases it was Palaniappan who was continuing to manage the business, sometimes as the Managing Partner of the firm and at other times as the proprietor or partner of the lessee company and recognition and rewarding him on that basis was perverse.\n7. It was further submitted that reliance placed on Exhibit A-46 for the purpose of allotting the articles was perverse and a grave error apparent on the face of the record. It was submitted that the Arbitrator committed a grave error in rejecting the claim of the applicant for a sum of Rs.39,27,940.11 which was due from Palaniappan and Doraiswamy as suppressed profits. It was submitted by Mr. Ganguly that at least rupees nine lakhs should have been left out in item No, 9. This was not duly noted. On the other hand, it was urged that the alleged errors were not amenable to be corrected in this application by this Court. Mr. Ganguly submitted that on the whole the award was wholly inequitable.\n8.  The law on this aspect is, however, settled. In Union of India v. A.L. Rallia Ram, [1964] 3 S.C.R. 164 1963 Indlaw SC 277, this Court reiterated that in order to make arbitration effective and the awards enforceable, machinery was devised by the Arbitration Act for lending the assistance of the ordinary courts. The Court was also entrusted with .the power to modify or correct the award on the ground of imperfect form or clerical errors, or decision on questions not referred, which were severable from those referred. The Court had also power to remit the award when it had left some matters referred undetermined, or when the award was indefinite, where the objection to the legality of the award was apparent on the face of the award. The Court might also set aside an award on the ground of corruption or misconduct of the ' arbitrator, or that a party had been guilty of fraudulent concealment or wilful deception. But the Court could not interfere with the award if otherwise proper on the ground that the decision appeared to it to be erroneous.\n9. The award of the arbitrator was ordinarily final and conclusive, unless a contrary intention was disclosed by the agreement. The award was the decision of a domestic tribunal chosen by the parties, and the civil courts which were entrusted with the power to facilitate arbitration and to effectuate the awards, could not exercise appellate powers over the decision. Wrong or right the decision was binding, if it be reached fairly after giving adequate opportunity to the parties to place their grievances in the manner provided by the arbitration agreement. This Court reiterated in the said decision that it was now firmly established that an award was bad on the ground of error of law on the face of it, when in the award itself or in a document actually incorporated in it, there was found some legal proposition which was the basis of the award and which was erroneous.\n10. This view had been enunciated' by the Judicial Committee in Champsey Bhara and Company v. Jivraj Balloo Spinning and Weaving Company Ltd., [1932] L.R. 50 I.A. 324. This view was again reiterated and emphasised by this Court in Kanpur Nagar Mahapalika v. M/s. Narain Das Hari [1970] 2 S.C.R. 28 1969 Indlaw SC 115, where Ray, J. as the learned Chief Justice then was observed at page 30 of the report relying on Champsey Bhara's case 1923 Indlaw PC 14 (supra) \"an error of law on the face of the award meant that one could find in the award, or in a document actually incorporated thereto, as, for instance a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which was the basis of the award and which one can say is erroneous.\"\n11. In the instant case there is no legal proposition either in the award or in any document annexed with the award which was erroneous. In Allen Berry and Co. (P) Ltd. v. Union of India, New Delhi, [1971] 3 S.C.R. 282 1971 Indlaw SC 485, this Court reiterated that the principle was that an award could only be set aside where there is an error on its face. In the instant case, the alleged mistakes or alleged errors, if there be any of which Mr. Ganguly made grievances are mistakes of fact if at all. Mr. Ganguly's grievances have a ring of similarity with the grievances which were agitated before this Court in Hindustan Tea Co. v. K. Sashikant Co. and another, [1986] Suppl. S.C.C. 506 1986 Indlaw SC 801, and this Court reiterated that it was an error of law and not mistake of fact committed by the arbitrator which was justiciable in the application before the court. It was an error of law and not mistake of fact committed by the arbitrator which was amenable to corrections by this Court. The grievances of Mr. Ganguly's client even if true, which as at present advised we are not inclined to accept, do not amount to error apparent on the face of the record.\n12.  In the aforesaid view of the matter we are unable to sustain, the objections to the award. There will, therefore, be judgment in terms of the award, there will no interim interest. There will, however, be interest on judgment at 9%. The objections are dismissed and the workers' objections are disposed of by stating that there are sufficient provisions in the award to meet the claim of the gratuity of the workers and they should have the right to be met out of the award. In that view of the matter the award is made the rule of the Court and the judgment be in terms of the award. No order as to costs.\nAppeal disposed of\n"}
+{"id": "HtYDZw69Cr", "title": "", "text": "K.I. Shephard And Ors. Etc. Etc. v Union Of India And Ors.\nSupreme Court of India\n\n18 September 1987\nORIGINAL JURISDICTION: Writ Petition No. 177 of 1987 etc. etc.\nThe Judgment was delivered by: Rangnath Misra, J.\n1.  The writ petitions u/art. 32 of theConstitution and appeals by special leave are against the judgment of the Division Bench of the Kerala High Court in writ appeals have a common set of facts as also law for consideration. These matters have been heard together and are disposed of by this common judgment.\n2.  Hindustan Commercial Bank ('Hindustan' for short). The Bank of Cochin Ltd. (hereafter referred to as 'Cochin Bank') and Lakshmi Commercial Bank ('Lakshmi' for short) were private banks. the Act on was initiated u/s. 45 of the Banking Regulation Act, 1949 ('the Act' for short) for amalgamation of these three banks with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under that provision of the Act. Amalgamation has been made. Pursuant to the schemes, 28 employees of Hindustan, 21 employees of Cochin Bank and 76 employees of Lakshmi were excluded from employment and their services were not taken over by the respective transferee banks. Some of these excluded employees of the Cochin Bank went before the Kerala High Court for relief u/art. 226 of theConstitution. A learned Single Judge gave them partial relief but on an appeal to the Division Bench by the transferee bank concerned the writ petitions have been dismissed. The civil appeals are against the decision of the Division Bench. The writ petitions directly filed before this Court are by some of the excluded employees of Hindustan and Lakshmi respectively.\n3.  Though employees of the other two banks had not challenged the vires of s. 45 of the Act, on behalf of Lakshmi such a challenge has been made. Since the grounds of attack on this score did not Impress us at all, we do not propose to refer to that aspect of the submissions involving interpretation of Article 31-A, Art. 16 and Art. 21. It has often been said by this Court that Courts should not enter into constitutional issues and attempt interpretation of its provisions unless it is really necessary for disposal of the dispute. In our opinion, this group of cases can be disposed of without reference to question of vires of some part of s. 45 of the Act being examined. Counsel on behalf of the excluded employees have broadly contended that the draft schemes did not include any name of employees intended to be excluded; no opportunity of being heard was afforded to them before exclusion was ordered under the schemes and the authorities concerned have not acted fairly; they deny the allegation that any of them was responsible for ficticious, improper or non-business like advances of loan to parties thereby bringing conditions near about bankruptcy for the appropriate banking companies; many other employees against whom there were definite charges already pending enquiry or even orders of dismissal had been proposed have been taken over and retained in service of the transferee banks while these excluded employees without justification have been called upon to face this unfortunate situation.\n4.  The transferee banks, the Reserve Bank of India (hereafter referred to as RBI for short) and the Union of India have appeared and filed affidavits in opposition. The Union of India has contended that the scheme in respect of each of the banks that has got amalgamated had been approved by it as required under the Act and since finality was attached to such schemes challenge was not open against the schemes particularly in view of the provisions contained in Art. 3 I-A of theConstitution. On behalf of the Reserve Bank of India, several contentions were raised by way of opposition and shortly stated these submissions are:-\n(1) Law does not require that the draft scheme should contain the names of the employees to be excluded;\n(2) The incorporation of the names finalised on the basis of scrutiny of the records before the schemes were placed before the RBI was sufficient compliance of the requirements of the law;\n(3) The provisions of the Act did not confer any right on the employees of being heard;\n(4) The scheme-making process was legislative in character and therefore did not come within the ambit of natural justice. Alternately the action not being judicial or quasi-judicial and at the most being administrative or executive was also not open to challenge on allegations of violation of rules of natural justice;\n(5) moratorium under the statutory provisions could not be beyond six months and in view of the fact that the entire operation had to be finalised within a brief time frame, the requirement of an enquiry by notice to all the officers intended to be excluded could not have been intended to be implanted into the provisions of section 45; and\n(6) Provision of compensation has been made for those who were excluded from the respective scheme. Each of the transferee banks generally adopted the stand taken by RBI.\n5.  Before we proceed to examine the tenability of the several contentions and counter contentions advanced at the hearing, it is appropriate that we refer to the relevant provisions of the Act. The entire law applicable to the facts of these cases is to be found in Part Ill of the Act and in particular in s. 45. As far as relevant, that section provides:\n\"Notwithstanding anything contained in the foregoing provisions of this Part or in any other law or any agreement or other instrument, for the time being in force. where it appears to the Reserve Bank that there is good reason so to do, the Reserve Bank may apply to the Central Government for an order of moratorium in respect of a banking company.\n(2) The Central Government, after considering the application made by the Reserve Bank under sub-section (1), may make an order of moratorium staying the commencement or continuance of all actions and proceedings against the company for a fixed period of time on such terms and conditions as it thinks fit and proper and may from time to time extend the period so however that the total period of moratorium shall not exceed six months;\n(3) ..................... ...................\n(4) During the period of moratorium, if the Reserve Bank is satisfied that-\n(a) in the public interest; or\n(b) in the interests of the depositors; or\n(c) in order to secure the proper management of the banking company; or\n(d) in the interests of the banking system of the country as a whole,-it is necessary so to do, the Reserve Bank may prepare a scheme-\n(i) for the reconstruction of the banking company, or\n(ii) for the amalgamation of the banking company with any other banking institution (in this section referred to as \"the transferee bank\").\n(5) The scheme aforesaid may contain provisions for all or any of the following matters, namely:-\n(a)...............................................\n(b)...............................................\n(c)...............................................\n(d)...............................................\n(e)...............................................\n(f)...............................................\n(g)...............................................\n(h)...............................................\n(i) the continuance of the services of all the employees of the banking company (excepting such of them as not being workmen within the meaning of the Industrial Disputes Act, 1947 are specifically mentioned in the scheme) in the banking company itself on its reconstruction or, as the case may be, in the transferee bank at the same remuneration and on the same terms and conditions of service, which they were getting or, as the case may be, by which they were being governed, immediately before the date of the order of moratorium:\nProvided.........................................\n(j) notwithstanding anything contained in cl. (i) where any of the employees of the banking company not being workmen within the meaning of the Industrial Disputes Act, 1947 are specifically mentioned in the scheme under clause (i), or where any employees of the banking company have by notice in writing given to the banking company or, as the case may be, the transferee bank at any time before the expiry of one month next following the date on which the scheme is sanctioned by the Central Government, intimated their intention of not becoming employees of the banking company on its reconstruction or, as the case may be, of the transferee bank, the payment to such employees of compensation, if any, to which they are entitled under the Industrial Disputes Act, 1947, and such pension, gratuity, provident fund and other retirement benefits ordinarily admissible to them under the rules or authorisations of the banking company immediately before the date of the order of moratorium:\n(k)...............................................\n(I) ..............................................\n(6) (a) A copy of the scheme prepared by the Reserve Bank shall be sent in draft to the banking company and also to the transferee bank and any other banking company concerned in the amalgamation, for suggestions and objections, if any, within such period as the Reserve Bank may specify for this purpose;\n(b) the Reserve Bank may make such modifications, if any, in the draft scheme as it may consider necessary in the light of the suggestions and objections received from the banking company and also from the transferee bank, and any other banking company concerned in the amalgamation and from any members, depositors or other creditors of each of those companies and the transferee bank.\n(7) The scheme shall thereafter be placed before the Central Government for its sanction and the Centraly Government may sanction the scheme without any modifications or with such modifications as it may consider necessary; and the scheme as sanctioned by the Central Government may specify in this behalf:\nProvided .........................................\n(7A) The sanction accorded by the Central Government under sub-section (7), whether before or after the commencement of s. 21 of the Banking Laws (Miscellaneous Provisions) Act, 1963, shall be conclusive evidence that all the requirements of this section relating to reconstruction, or, as the case may be, amalgamation have been com plied with and a copy of the sanctioned scheme certified in writing by an officer of the Central Government to be a true copy thereof, shall, in all legal proceedings (whether in appeal or otherwise and whether instituted before or after the commencement of the said section 21), be admitted as evidence to the same extent as the original scheme.\n(8) on and from the date of the coming into operation of the scheme or any provision thereof, the scheme or such provision shall be binding on the banking company or, as the case may be, on the transferee bank and any other banking company concerned in the amalgamation and also on all the members, depositors and other creditors and employees of each of those companies and of the transferee bank, and on any other person having any right or liability in relation to any of those companies or the transferee bank.............\n(9)...............................................\n(10) If any difficulty arises in giving effect to the provisions of the scheme, the Central Government may by order do anything not inconsistent with such provisions which appear to it necessary or expedient for the purpose of removing the difficulty.\n(11) Copies of the scheme or of any order made under sub-section ( 10) shall be laid before both Houses of Parliament, as soon as may be, after the scheme has been sanctioned by the Central Government or, as the case may be, the order has been made.\n(12)..............................................\n(13)..............................................\n(14)..............................................\n(15)..............................................\"\n6.  Allegations advanced on behalf of the excluded employees is that the draft scheme contemplated under sub-s. 6(a) did not specifically mention names of the excluded employees and at a later stage when the scheme was sent up by the RBI to the Central Government a schedule containing the names of the excluded employees was attached to each of the schemes. S. 45 of  the Act provides a legislative scheme and the different steps required to be taken under this section have been put one after the other. A reading of this section indicates a sequence oriented pattern. What would ordinarily be incorporated in the draft scheme is indicated in sub- s. (5). After the requirements of sub-s. (5) are complied with and the scheme comes to a presentable shape, sub-s. (6)(a) requires a copy thereof as prepared by RBI to be sent to the banking company (transferer) as also to the transferer bank. Cl. (b) of sub-s. (6) authorises RBI to make modifications in the draft scheme as it may consider necessary in the light of suggestions and objections received from the banking company and the transferee bank. On a simple construction of sub-ss. (5) and (6) and on the basis of the sequence pattern adopted in s. 45 it would be legitimate to hold that the Act contemplates the employees to be excluded to be specifically named in the draft scheme.\n7. Since it is a draft scheme prepared by RBI and the right to object or to make suggestions is extended to both the banking company as also the transferee bank, and in view of the fact that cl. (i) of sub-s. (5) specifies this item to be a matter which may be included in the scheme, it must follow that the legislative intention is that the scheme would incorporate the names of such employees as are intended to be excluded in accordance with the scheme. Once it is incorporated in the scheme the banking company as also the transferee bank would be entitled to suggest/object to the inclusion of names of employees. It may be that the names of some of the employees may have been wrongly included and the banking company-the hither-to employer would be in a position to suggest/object to the inclusion of the names or it may even be that names of some undesirable employees which should have been left out have been omitted and the banking company as the extant employer of such employees would be most competent to deal with such a situation to bring about rectifications by exercising the power to suggest/object to the draft scheme. The contention advanced on behalf of RBI that since it is open to it under sub-s. (6)(b) of s. 45 to make modifications of the draft scheme, even if the names were not included earlier, at the stage of finalising the scheme for placing it before the Central Government as required under sub-section (7), the earlier non-inclusion is not a contravention is not acceptable. We are of the view that in case some employees of the banking company are intended to be excluded, their names have to be specifically mentioned in the scheme at the draft stage. The requirement of specific mention is significant and the legislature must be taken to have intended compliance of the requirement at that stage. Mr. Salve for the RBI adopted the stand that the provisions of s. 45 did not specifically concede a right of objection or making of suggestions to employees and in sub-s. (6)(b) mention was made only of members, depositors or other creditors. For the reasons we have indicated above, this aspect of the contention does not impress us.\n8.  It is the common case of RBI as also the transferee banks that the records of service of each of the employees had been scrutinised and the names for inclusion in the scheme were picked up on the basis of materials like irresponsible action in regard to sanction of loans and accommodations to customers which affected the financial stability of the banking company concerned. Such an allegation made in the counter-affidavit in this Court has been seriously disputed by the litigating excluded employees. It is their positive case that there was no foundation in such allegation and dubious loans, if any, had been sanctioned under instructions of the superior in the banking company and, therefore, did not involve any delinquency on the part of such employees. Since it is the case of the respondents that exclusion had been ordered on the basis of an objective assessment and the very A foundation of the allegation upon which such assessment has been made is disputed, a situation arose where facts had to be ascertained, and it involved assessment. That has admittedly not been done.\n9. These employees were in employment under contract in the banking companies which were private banks. They have been excluded from service under the transferee banks and the contracts have now been terminated as a result of inclusion of their names in the schemes. It cannot be disputed-nay has not been-that exclusion has adversely affected this category of employees and has brought about prejudice and adverse civil consequences to them. Two contentions have been raised with reference to this aspect of the matter:-\n(1) There has been infraction of natural justice and\n(2) The transferee banks which are 'State' and RBI which has monitored the operation being admittedly 'State' their action in excluding some of the employees of the banking company and taking over the services of others who are similarly situated is hit by Art. 14 of theConstitution. It may be pointed out that according to the excluded employees, many facing similar allegations and/or in worse situation have been taken over.\n10.  Whether there is infraction of Art. 14 of theConstitution on the allegation advanced would depend upon facts relating to the excluded employees as also the allegedly derelict employees whose services have been taken over. In the absence of an enquiry in which the excluded employees should have been given an opportunity of participation it has become difficult for us to probe into the matter further.\n11.  Admittedly the excluded employees have neither been put to notice that their services were not being continued under the transferee banks nor had they been given an opportunity of being heard with reference to the allegations now levelled against them. Learned counsel for RBI and the transferee banks have taken the stand that the scheme-making process u/s. 45 is legislative in character and, therefore, outside the purview of the ambit of natural justice under the protective umbrella whereof the need to put the excluded employees to notice or enquiry arose. It is well-settled that natural justice will not be employed in the exercise of legislative power and Mr. Salve has rightly relied upon a recent decision of this Court being Union of India and Anr. v. Cynamide India Ltd. & Anr., [ 1987] 2 SCC 720 1987 Indlaw SC 28421 in support of such a position. But is the scheme-making process legislative? Power has been conferred on the RBI in certain situations to take steps for applying to the Central Government for an order of moratorium and during the period of moratorium to propose either reconstruction or amalgamation of the banking company. A scheme for the purposes contemplated has to be framed by RBI and placed before the Central Government for sanction. Power has been vested in the Central Government in terms of what is ordinarily known as a Henery-8 clause for making orders for removal of difficulties. S. 45(11) requires that copies of the schemes as also such orders made by the Central Government are to be placed before both Houses of Parliament. We do not think this requirement makes the exercise in regard to schemes a legislative process.\n12.  It is not necessary to go to any other authority as the very decision relied upon by Mr. Salve in the case of Cynamide India Ltd. 1987 Indlaw SC 28421 (supra) lays down the test. In paragraph 7 of the judgment it has been indicated:-\n\"Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal rights and consequences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases'. It has also been said: \"Rule-making is normally directed towards the formulation of requirements having a general application to all members of a broadly identifiable class\" while, \"an adjudication, on the other hand, applies to specific individuals or situations. But this is only a broad distinction, not necessarily always true.\"\n13. Applying these tests it is difficult to accept Mr. Salve's contention that the framing of the scheme u/s. 45 involves a legislative process. There are similar statutory provisions which require placing of material before the two Houses of Parliament yet not involving any legislative activity. The fact that orders made by the Central Government for removing difficulties as contemplated under sub-cl. (10) are also to be placed before the two Houses of Parliament makes it abundantly clear that the placing of the scheme before the two Houses is not a relevant test for making the scheme framing process legislative. We accordingly hold that there is no force in the contention of Mr. Salve that the process being legislative, rules of natural justice were not applicable.\n14.  The alternate contention on this score is that the scheme-making process being an executive activity or alternately an administrative matter, rules of natural justice have no application. This contention has again to be rejected. Neither in \"Privy Council, Natural Justice and Certiorari\" has indicated:-\n\"Formerly the presumption had been that there was obligation to give a hearing unless the statute itself indicated such an obligation; now the presumption is that there is such an obligation unless the statute clearly excludes it, notwithstanding the vesting of a power, in subjective terms, in a minister responsible to Parliament.\"\n15.  As has beer. pointed out by Wells J. in Perre Brothers v. Citrus organisation Committee, [1975] 10 SASR 555:-\n\"It is now well established-and there is no need for me to canvass the innumerable authorities bearing on this point-that duties, responsibilities and functions of an administrative authority may be purely ministerial, or they may embody some quasi or semi-judicial characteristic. At one time a good deal of ingenuity-and with all respect it seems to me a great deal of energy- was wasted in attempting to discern whether a particular function was administrative or quasi- judicial. In my view the House of Lords, and now the High Court, have, to a very large extent set all such controversies at rest. In my opinion, the test now is not so much as to whether one can fairly call something \"ministerial\" or \"administrative\", or \"quasi-judicial\" but whether the duties of a non-judicial authority must, having regard to the wording of the the Act, be carried out in a spirit of judicial fairness. \"\n16.  In Re (H) K (an infant), [1967] 1 AER 226 Lord Parker, CJ, found that the immigration officer was not acting in a judicial or quasi-judicial capacity. Yet, the learned Chief Justice held that he still had to act fairly. In that case it meant giving K an opportunity of satisfying the officer as to his age, and for that purpose he had to let K know what his immediate impression was so that K could disabuse him of it. Lord Parker observed:-\n\"I appreciate that in saying that, it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially\".\n17.  The obligation to act fairly even in administrative decision making has since been widely followed.\nMulla in 'Fairness: The New Natural Justice' has stated:-\n\"Natural justice co-exists with, or reflected, a wider principle of fairness in decision-making and that all judicial and administrative decision-making and that all judicial and administrative decision-makers had a duty to act fairly.\"\n18.  In the case of State of Horsily v. Dr. (Miss) Binapani Dei & ors., [ 1967] 2 SCR 625 1967 Indlaw SC 144 this Court observed:-\n\"It is true that the order is administrative in character but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State.\"\n19.  ln A.K Kraipak & ors. v. Union of India & ors., [ 1970] 1 SCR 457 1969 Indlaw SC 271 a Constitution Bench quoted with approval the observations of Lord Parker in Re: (H) K (an infant) (supra). Hegde, J. speaking for the Court stated:\n\"Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonablly. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.\"\n20.  These observations in A.K. Kopak's 1969 Indlaw SC 271 (supra) case were followed by another Constitution Bench of this Court in Chandra Bhavan Boarding and Lodging, Bangalore v. The State of Mysore & Anr., l 19701 2 SCR 600 1969 Indlaw SC 32. In Swadeshi Cotton Mills v. Union of India, [1981] 2 SCR 533 1981 Indlaw SC 349 a three-Judge Bench of this Court examined this aspect of natural justice. Sarkaria, J. who spoke for the Court, stated:-\n\"During the last two decades, the concept of natural justice has made great strides in the realm of administrative law. Before the epoch- making decision of the House of Lords in Ridge v. Baldwin, it was generally thought that the rules of natural justice apply only to judicial or quasi-judicial proceedings; and for the purpose, whenever a breach of the rule of natural justice was alleged, Courts in England used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi-judicial power. In India also, this was the position before the decision of this Court in Dr. Bina Pani Dei's case 1967 Indlaw SC 144 (supra); wherein it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice. This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Bina Pani Dei's case 1967 Indlaw SC 144 (supra) was further rubbed out to a vanishing point in A.K. Kraipak's case 1969 Indlaw SC 271 (supra) ......................... \".\n21.  On the basis of these authorities it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representations on their own behalf; (b) or to appear at a hearing or-enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet.\n22.  Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a maneuvering officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type is the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirements of natural justice was bad.\n23.  It has been contended on behalf of respondents that moratorium could be for a total period of six months and that was the time allowed for the entire operation to be conducted. In view of the time frame, by necessary implication it must follow that application of natural justice compliance of which would involve a time-consuming process was ruled out. We do not think that there is any merit in this contention either. As a fact, in respect of the three banks the total number of excluded employees is around 125. It is the common case of parties that proceedings were pending against some of them. It may be that in view of the time frame a detailed enquiry involving communication of allegations, show cause, opportunity to lead evidence in support of the allegations and in defence of the stand of the employees may not be possible. Keeping the legislative scheme in view perhaps a simpler enquiry, for instance, communication of the allegation and even receiving an explanation and in cases where the allegation was serious or there was a total denial though there was firm basis for the allegation a single personal hearing could be afforded. In this case we are not really concerned with the manner or extent of hearing as there has been no hearing at all. It must, therefore, be held that the action of excluding these employees in the manner done cannot be supported.\n24.  Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment.\n\"We may now point out that the learned Single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional heading. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.\n'Amalgamation' as such saved under Article 31A(1)(c) of theConstitution is not under challenge here. Strong reliance, however, had been placed on the provisions of sub- section (7A) of s. 45 of the Act. The relevant part of it is as requoted here for convenience:-\"\n25.  The sanction accorded by the Central Government under sub-s. (7) .. shall be conclusive evidence that all the requirements of this section relating to ............ amalgamation have been complied-with\n26.  This provision is indeed one for purposes of evidence. In Smt. Somavanti & ors. v. State of Punjab & Ors., [19631 2 SCR 774 1962 Indlaw SC 405 this Court pointed out that there was no real difference between 'conclusive proof' provided for in s. 4 of the Evidence Act and 'conclusive evidence' as appearing in sub-section (7A). This provision does not bar the raising of a dispute of the nature received here. As we have already pointed out, amalgamation is not under challenge. Parties are disputing as to what exactly are the requirements of the procedure laid down underthe Act and the position that no opportunity was afforded to the excluded employees is not in dispute. To a situation as here protection of the umbrella of conclusive evidence is not attached so as to bar the question from being examined. There is, therefore, nothing in sub-section (7A) to preclude examination of the question canvassed here\n27.  The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to moratorium. The employee would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to Court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. Ordinarily the successful parties should have been entitled to costs but in view of the fact that they are going back to employment, we do not propose to make orders of costs against their employers.\n28. We hope and trust that the transferee banks would look at the matter with an open mind and would keep themselves alive to the human problem involved in it.\nPetitions and Appeals allowed.\nAppeals allowed.\n"}
+{"id": "8JHUdKF0j7", "title": "", "text": "International Contractors Limited v Prasanta Kumar Sur\nSupreme Court of India\n\n25 January 1961\nC.A. No. 205 of 1956\nThe Judgment was delivered by : J. L. Kapur, J.\n1. This is an appeal against the judgment and decree of the High Court of Judicature at Calcutta. The appellant was the defendant in the suit out of which this appeal has arisen and respondent No. 1 was the plaintiff, and the second respondent was a proforma defendant. The facts of this case are these:\n2. On February 4, 1941, the respondent sold the property in dispute to the appellant for a sum of Rs. 10,000. On February 10, 1941, there was an agreement for reconveyance within a period up to February 10, 1943, for a sum of Rs. 10,001. The relevant clause of this agreement was the third clause which was as follows : -\n\"Clause 3.-The purchase shall be completed by the purchasers within two years, i.e., to say on or before the 10th day of February, 1943, time being the essence of the contract. If the purchasers shall on or before the 10th day of February, 1943, pay to the vendor a sum of Rs. 10,001 the vendor shall at the cost of the purchasers execute such conveyance as may be necessary for conveying and transferring its right, title and interest in the said property free from encumbrances, if any, created by it. \"\n3. On November 26, 1942, the solicitor for respondent No. 1 wrote a letter to the appellant stating that that respondent was ready and willing to have the purchase completed as early as possible on payment of Rs. 10,001. Along with that letter a draft conveyance was sent for approval but all this was subject to the result of a search as to the encumbrances, if any, created by the appellant. On November 30, 1942, the solicitors for the appellant company wrote back saying that immediate arrangements should be made for giving inspection of the agreement of sale on which the respondents were relying as the appellant was unable to trace the copy of the said agreement from its record.\n4. Again on December 11, 1942, the respondent's solicitor sent a letter stating :\n\"My client is very eager to complete the purchase and the full consideration money therefore is lying idle in his hands awaiting, the return of the relative draft conveyance as approved by you on your clients' behalf.\"\n5. To this the reply of the appellant's solicitors dated December 18, 1942, was:-\n\"Our clients deny that there was any concluded or valid agreement for sale with your client or with any other person in respect of the above premises.\"\n6. On June 10, 1943, respondent No. 1 filed a suit for specific performance and in the alternative for redemption on the footing that the transaction was in reality a mortgage. The trial court dismissed the suit oil May 16, 1950, holding that the transaction on the basis of which the suit was brought was not a mortgage but was out and out sale with an agreement for repurchase and as the vendor had not paid the money \" punctually according to the terms of the contract, the right to repurchase was lost and could not be specifically enforced \", and the court had no power 'to afford any relief against forfeiture of this breach. The plaintiff-respondent took an appeal to the High Court and it was there held that the failure on the part of the respondents to actually tender the amount of the consideration does riot bar a suit for specific performance because after the repudiation of the contract by the appellant, the tender would have been a useless formality. The appeal was therefore allowed and the suit for specific performance decreed. It is against this judgment and decree that the appellant has come in appeal to this Court.\n7. The correspondence which has been proved in this case shows that when the respondent's solicitor called upon the appellant to reconvey the property in dispute to the respondent and also sent a draft conveyance, the appellant denied that there was any concluded or valid agreement for sale in respect of the property in dispute. This was a complete repudiation of the contract to reconvey which the appellant had agreed to by cl. 3 of the agreement which has been set out above. As the appellant had repudiated the contract and had thus failed to carry out his part of the contract it was open to the respondent to sue for its enforcement. But it was argued on behalf of the appellant that the respondent did not tender the price, i.e., Rs. 10,001 nor was he in a position to do so and in that view of the matter the respondent is not entitled to get a decree for specific performance. In cases of this kind no question of formal tender of the amount to be paid arises and the question to be decided is not whether any money was within the power of the respondent but whether the appellant definitely and unequivocally, refused to carry out his part of the contract and intimated that money will be refused if tendered. The principle laid down in Hunter v. Daniel (1845) 4 Hare 420; 67 E.R. 712 is applicable to cases of this kind. In that case Wigram, V. C., stated the position as follows:-\n\"The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money. \"\n8. Lord Buckmaster in Chalikani Venkatarayanim v. Zamindar of Tuni (1922) 50 I.A. 41 1922 Indlaw PC 39 accepted this statement of the law and observed:-\n\"Their Lordships think that that is a true and accurate expression of the law, and the question therefore is whether the answer that was sent on behalf of the mortgagee amounted to a clear refusal to accept the money. \"\n9. This principle applies to the facts of the present case also and the question is whether the answer sent on behalf of the appellant amounted to an unequivocal refusal to carry out its part of the contract which in our opinion it was. It was next contended that the offer made by a solicitor is not a proper offer in law and therefore when the solicitor for the respondent called upon the appellant to execute the documents they were not bound to do so. We are unable to accord our assent to this proposition. The case upon which the Counsel for the appellant relied, i.e., Ismail Bhai Rahim v. Adam Osman 1938 Indlaw CAL 268 , in our opinion has no application to the facts and circumstances of this case. It was held in that case that the offer made by a promiser through a solicitor to pay a debt with interest thereon at the date of the offer does not of itself afford a reasonable opportunity to the promisee of ascertaining that the promisor is able and willing to perform his promise. Unless there is something peculiar in the circumstances of that case that case does not lay down good law. It is difficult to see why a tender made through a solicitor who is for that purpose an agent, is not a proper tender.\n10. In our opinion the High Court rightly held that the respondents were entitled to a decree for specific performance and we therefore dismiss this appeal with costs.\nAppeal dismissed.\n"}
+{"id": "Rtva1JyiNb", "title": "", "text": "K. P. Poulose v State Of Kerala & Anr\nSupreme Court of India\n\n21 April 1975\nCIVIL A PPELLATE JURISDICTION CIVIL APPEAL No. 1485 OF 1974 Appeal by special leave from the judgment and decree Dt. 29-1-73 of the Kerala High Court in A.S. No. 357 of 1972.\nThe Judgment was delivered by : P. K. Goswami, J.\n1. This is an appeal by special leave against the judgment of the Kerala High Court setting aside the judgment of the Subordinate Judge, Ernakulum and restoring the award of the Arbitrator who had earlier refused the claim of the appellant.\n2. The appellant (briefly the contractor) was a successful tenderer for construction of three zonal R.C.C. Overhead Reservoirs, two in Matencherry and one in Cochin, in connection with the Ernakulum Mattencherry Water Supply Scheme. In the schedule annexed to the notification inviting tenders under the heading 'Site', it was stated that \"the soil at the site for Reservoir No. 1 and Reservoir No. 2 is loose clay and for Reservoir No. 3, sandy\". The tenderer was to execute an agreement on a stamped paper before commencing work. It appears later on the Kerala Engineering Research Institute, Poochi. Soil Mechanics and Foundation Division (briefly the Research Institute) submit- ted a report (Ext. P. 10 dated September 14, 1965) that the sub-soil at the three places chosen as sites for the reservoirs up to 16 in showed that the top soil was sand, the middle layer clay, and the bottom layer, silty sand or sand. It was stated that the clay found at the three places was of a highly compressible nature and hence pile foundation was preferable and that as the top strata was sandy, jetting had to be resorted to for driving the piles through this strata. After receipt of the opinion of the Research Institute, respondent No. 2 (hereinafter to be described as the Department) gave instructions to the contractor to adopt the process of jetting for driving piles for the tank at Thoppumpady which is alone in dispute in this case. On October 7, 1965, the Chief Engineer after scrutinising the pile design of the contractor wrote to him, inter alia, as follows:\n\"The piles as per design submitted with raft like cap may be adapted for tank at Thoppumpady where the length of pile suggested by the research division is in the region of 30 ft................ Jetting has to be resorted to in the top strata where sandy layer is met with.... Your statement that piles of more than 30 ft. length is very difficult to be driven in Ernakulum is not quite convincing to the Department.\nAny how a decision will be taken on this only after ascertaining the details regarding the practical difficulties if any from agencies actually engaged in such type of works in the locality.\nMeanwhile you may please execute the agreement and start the work on the Reservoir at Thoppumpady receiving further instructions from Executive Engineer, Public Health, Alwaye\" (Ext. P. 1).\n3. On February 21, 1966, the contractor wrote to the Executive Engineer informing him that as per instructions of the Research Institute and 10 SC/75-15.\n4. Site conditions he provided jetting arrangements for driving the piles although the process of jetting was not included in his tender. He enclosed the details of expenditure on that account and mentioned that for the pile casting he used extra reinforcement for additionally strengthening the head of piles due to the site, condition. He pointed out that this was not included in his original design. The sum and substance of the contractor's grievance was that he assumed the site condition to be as represented in the schedule to the notification inviting tenders and submitted his original design on that basis and since, however, the site condition was found to be different and on the advice of the Research Institute jetting had to be resorted to involving extra expenditure he was entitled to claim additional amount for the work of jetting. The Department, however, refused the claim which led to the arbitration under; clause 34 of the tender notification. The Arbitrator was the Chief Engineer.\n5. It appears the award was based on examination of documents and after hearing arguments of the parties.\n6. The award with which we are concerned is a speaking one and gives the reasons for the decision against the contractor. Mr. Gupte, the learned counsel for the appellant submits that the Arbitrator was guilty of legal misconduct in conducting the proceedings. He submitted that two very material documents, Exts., P. 11 and P. 16, were absolutely ignored by the Arbitrator resulting in miscarriage of justice. On the other hand Mr. Krishnamurthy Iyer submitted that these documents were not even marked before the Arbitrator; they were marked only before the Subordinate Judge. According to him, therefore, there is no foundation for the grievance.\n7. We have been taken through all the relevant documents by the learned counsel for both sides and we are satisfied that Ext. P. 11 and Ext. P. 16 are material documents to arrive at a just and fair decision to resolve the controversy between the Department and the contractor. In the background of the controversy in this case even if the Department did not produce these documents before the Arbitrator it was incumbent upon him to get hold of all the relevant documents including Exts. P. 11 and P. 16 for the purpose of a just decision. Ext. P. 1 1 dated September 8, 1966, is a communication from the Superintending Engineer to the Chief Engineer with regard to the objections raised by Audit in connection with the construction of the reservoirs. The following extract will explain the position then taken by the Department:-\n\"The contention of the Accountant General that jetting was resorted to by the contractor to facilitate the driving of the piles is not correct. Had it not been for jetting, it would not have been possible for the piles to reach the required depth of 30', passing through sandy strata and we would have been constrained to stop with a smaller depth viz., up to the point of refusal for penetration of the pile by hammering. It was, therefore, in the interest of the work that jetting was insisted upon by the Department for pile driving. The contractor had to resort to jetting under instructions from the Department.\nThe Accountant General has stated that the department is not bound to pay extra for adopting the method of jetting for pile driving. This does not appear correct since the method of jetting was adopted in the interest of the department in view of the sandy stratum obtaining at the site as against the indication given by the department that the soil is clayey up to a depth of nearly 200 ft. No doubt, the contractor was asked to ascertain the nature of the soil; but this does not imply that he was to conduct exploratory borings to confirm the classification given by the department in the tender within the short span of time available for submitting tenders\".\n8. Earlier also on July 25, 1966, as per Ext. P. 16 the Executive Engineer had written to the Chief Engineer wherefrom paragraph 4 is revealing\n\"Even though while inviting tenders for the work there was a condition that the tenderer should examine the soil condition it was not expected, of them to do soil testing in detail within the period available to them to tender for the work. A clear indication regarding the nature of the strata that is likely to be met with was also furnished at the time of inviting tenders. After complete, oil investigation the strata was found to be different from that furnished by the department and so in my opinion technical specification has changed. In the circumstances jetting clone by the contractor can be considered as an extra item\".\n9. We now come to the Award. Although the Arbitrator has held that \"jetting, however, is not an authorised extra covered by the agreement\", he has made the following significant observation which is inconsistent with his conclusion that the contractor has no right for extra payment for the jetting:\n\"The Chief Engineer has rejected the claims of the 'contractor on grounds of non-inclusion of this (jetting) in the agreement which was executed subsequent to the direction issued by the department to adopt jetting. The Chief Engineer's decision totally ignores the next sentence in that letter 'Meanwhile you may execute the agreement'. By this sentence the issue of extra payment for jetting is left open even after the execution of the agreement\".\n10. If the above is the conclusion of the Arbitrator, rejection of the claim on the ground that \"jetting, however, is not an authorised extra covered by the agreement\" cannot be anything but rationally inconsistent. The award, therefore, suffers from a manifest error apparent ex facie. U/s. 30(a) of the Arbitration Act an award can be set aside when an Arbitrator has misconducted himself or the proceedings. Misconduct u/s. 30(a) has not a connotation of moral lapse. It comprises legal misconduct which is complete if the Arbitrator on the face of the award arrives at an inconsistent conclusion even on. his own finding or arrives at a decision by ignoring very material documents which throw abundant light on the controversy to help a just and fair decision. It is in this sense that the Arbitrator has misconducted the proceedings in this case. We have, therefore, no hesitation in setting aside such an award. In the result the judgment of the High Court is set aside and that of the Subordinate Judge is restored. The award of the Arbitrator thus stands quashed. The Arbitrator will complete the proceedings after considering all the relevant documents including Ext. P. 11 and Ext. P. 16 after giving opportunity to the parties.\nThe appeal is allowed with costs.\n"}
+{"id": "r9HE60Dlgk", "title": "", "text": "Rajinder Arora v Union of India and Others\nSupreme Court of India\n\n10 March 2006\nAppeal (Crl.) 311 of 2006\nThe Judgment was delivered by : S. B. Sinha, J.\nLeave granted.\n1.  The Appellant is an industrialist. He manufactures acrylic yarn, blankets and shawls. The said goods are exportable items. The units of the Appellant are recognized export houses. They were awarded the highest export performance Awards by Wool and Woolen Export Promotion Council for manufacture of the aforementioned goods. The Appellant imported some raw materials on the premise that the imported items would be utilized for manufacture of the goods which were meant for export. A raid was conducted in his residence on 26.05.2004 by the Directorate of Revenue Intelligence (DRI) and he was taken in custody. He allegedly was continuously tortured for two days. During his detention statements under Section 108 of the Customs Act were recorded allegedly under coercion, duress and threat. He was shown arrested on 28.05.2004 and produced before a Magistrate.\n2. He was medically examined whereupon marks of multiple injuries on his person were found. After he was remanded to judicial custody by the Magistrate by an order dated 28.5.2004, he retracted his alleged confession stating that the same had been obtained under coercion, duress and torture. He remained under treatment for 45 days out of the total period of 60 days of his judicial remand (the requisite statutory period for filing a complaint). Upon failure on the part of the DRI Department to file a complaint against the Appellant within the statutory period of 60 days, he was enlarged on bail on 28.7.2004. In the meanwhile, his family members were forced to deposit a sum of Rs.60 lakhs as customs duty. Such deposit, however, was made without prejudice to the rights and contentions of the Appellant. Several representations were made by the Appellant stating the aforesaid facts.\n3.  He filed a criminal complaint on 18.02.2005. The Medical Officer concerned was examined in the said proceeding wherein he stated:\n\"On 28.05.2004 at 8.40 PM I examined physically Sh. Rajinder Arora vide my emergency OPD No. 6607/04. Patient was brought to me by Mr. R.K. Saini, Intelligence Officer, DRI, Ludhiana Regional Unit. I found following injuries on the person of Rajinder Arora who is present today:\n1. Multiple abrasions, superficial, in an area of 4 inch x 2 inch over mid of left upper arm, antero laterally. Patient also complaint of heaviness in chest. His B.P. was 150/106 mm Hg.\nIn my opinion, duration of injury was about 24 hours. I have seen the certified copy of injury report which is correct according to original report and is Ex. CW2/1, which is signed by me. When Rajinder Arora was brought to me he was under the custody of DRA authorities.\"\n4.  In the meanwhile, a proposal was forwarded to the DRI, Delhi Zonal Unit, Delhi for his detention under COFEPOSA. A proposal was also sent to COFEPOSA Unit by the said authority. Allegedly, on 15.2.2005, the DRI Ludhiana opined that no case has been made out for his detention under COFEPOSA. A proposal, however, was made by the said authorities for determination of detention of Shital Vij, who was said to be the brain behind utilization of the unlawful import.\nOnly on 31.3.2005, the order of detention was issued.\n5. A writ petition was filed by the Appellant herein before the High Court of Punjab and Haryana praying for quashing of the said order of detention. By reason of the impugned order, the writ petition has been dismissed. The Appellant is, thus, in appeal before us.\nThe High Court in his impugned judgment opined:\n(i) In the grounds of detention, the detaining authority had adverted to all the evidences collected against the Appellant including his statement under Section 108 of the Customs Act as also the subsequent retraction.\n(ii) The activities of the Appellant come within the purview of the expression \"smuggling\" as defined in Section 2(39) of the Customs Act read with Section 2(e) of the COFEPOSA Act.\n(iii) Delay in issuing the order of detention is not fatal. Delay, per se, cannot be a circumstance to set aside an order of detention.\n(iv) The subjective satisfaction of the authority is based upon sufficient material and is sufficient to warrant an order of preventive detention.\n(v) No discrimination has been committed as against the Appellant in not recommending Shital Vij's detention as its recommendation was rejected by the Screening Committee.\n(vi) Only because a redemption certificate was issued by the concerned authority, it cannot be presumed that the Appellant had discharged his export obligations, without violation of the terms and conditions of his licences.\n(vii) The complaint petition filed by the Appellant herein, contending illegal detention and torture, by itself is not a ground for detracting from the orders passed by the detaining authority as mere filing of a criminal complaint would not lead to a conclusion that the order of detention was mala fide.\n6.  Mr. Uday U. Lalit, learned senior counsel appearing on behalf of the Appellant, would raise the following contentions:\n(i) Licences granted to the Appellant were allowed to be surrendered by the competent authorities only after an objective assessment was made in that behalf.\n(ii) The status report called for by the Customs Authorities from DGFT having not been considered, the detaining authority must be held to have failed to take into consideration a relevant fact, as therein it was opined that no case had been made out for detention.\n(iii) As the Appellant filed a complaint against the officer alleging illegal detention and torture meted out by him, the impugned order of detention has been passed malafide.\n(iv) The Appellant having deposited Rs.60 lakhs without prejudice to his rights and contentions, and, thus, the impugned order of detention having been made for unauthorized purpose, was mala fide. Had there been any material before the appropriate authority, they would have lodged a complaint against the Appellant.\n(v) There was absolutely no reason as to why such a long time was taken for passing the order of detention.\n7.  Mr. K. Radhakrishnan, learned senior counsel appearing on behalf of the Respondent, on the other hand, relying on or on the basis of the findings of the High Court, as noticed supra, would support the order of detention.\n8.  It is not in dispute that the authorities in terms of Sections 9(4), 10 and 11 of the Foreign Trade Development and Regulation Act, 1994 exercise a wide jurisdiction. Although the raid was made on 26.05.2004, admittedly, till date, no prosecution has been lodged as against the Appellant by DGFT. It is also not in dispute that the statutory authorities has not yet issued any show cause notice on the Appellant on the ground that the export commitments were not fulfilled. It is furthermore not in dispute that the authorities had granted redemption certificates.\n9.  A pre-detention order can be quashed only on a limited ground. This Court in Additional Secretary to the Government of India and Others v. Smt. Alka Subhash Gadia and Another [1992 Supp (1) SCC 496] 1990 Indlaw SC 636 laid down the criterias therefor upon a detailed consideration of the provisions of the Preventive Detention Laws and the right of individual to assail an order of detention without surrendering in the following terms:\n\"Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.\"\n10.  Recently a 3-Judge Bench of this Court in Naresh Kumar Goyal v. Union of India and Others [(2005) 8 SCC 276] 2005 Indlaw SC 620 (in which one of us P.K. Balasubramanyan, J. was a member), opined:\n\"It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.\nIt, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenue and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped. (See : P.U. Iqbal v. Union of India and Ors 1991 Indlaw SC 438,; Ashok Kumar v. Delhi Administration 1986 Indlaw DEL 222, and Bhawarlal Ganeshmalji v. State of Tamilnadu 1978 Indlaw SC 203)\"\n11.  In that case, however, the order of detention had not been implemented for a long time and having considered Alka Subhash Gadia 1990 Indlaw SC 636 (supra) and several other decisions, it was held:\n\"Coming to the facts of this case, at the highest the case of the appellant is that the order of detention was belatedly passed and the State of Bihar thereafter took no steps whatsoever to implement the order of detention. Counsel for the appellant sought to bring this case under the third exception enumerated in Alka Subhash Gadia 1990 Indlaw SC 636 (supra), namely, that the order was passed for a wrong purpose. In the facts and circumstances of this case, it is not possible to accept the submission that the order was passed for a wrong purpose. Apparently the order has been passed with a view to prevent the appellant from smuggling goods or abetting the smuggling thereof etc. The facts of the present case are no different from the facts in Muneesh Suneja 2001 Indlaw SC 20320 (supra). We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia 1990 Indlaw SC 636 (supra). The High Court was, therefore, justified in refusing to exercise jurisdiction under Article 226 of the Constitution of India to quash the order of detention at the pre- arrest stage. This appeal is, therefore, devoid of merit and is dismissed.\"\n12.  Mr. Lalit, however, is not correct in his submissions that only because a redemption certificate had been granted by DGFT, the same would itself be sufficient for quashing an order of detention as the activities of smuggling on the part of the importer may come to their notice at a later part of time.\n13. We may, however, notice that the Appellant has categorically stated that a status report was submitted by the Respondent No. 3 to the DRI, Delhi on their request but the same had not been placed before the detaining authority.\n14.  In Ground 'U' of the SLP filed by the Appellant, herein, it is stated:\n\"Because the High Court has failed to appreciate that, as per the knowledge of the petitioner, the respondent No. 3 submitted the status report of the present case vide its letter dated 15.02.2005 to the DRI Delhi on their request which was not placed before the detaining authority the respondent No. 2 herein. As per the knowledge of the petitioner, the status report had negated the passing of the order of detention. This status report/ letter has been deliberately withheld with a malafide intention. It is a settled law that the non-production of relevant and vital documents before the detaining authority renders the detention order invalid.\"\n15.  The said pleas raised by the Appellant has been traversed by the Respondent in the following terms:\n\"In reply to the contents of Para U, it is submitted that the status report dated 15.2.2005 is an internal correspondence of the department and has not been relied upon in the detention orders dated 31.03.2005 and hence are not required to be served upon the petitioner.\"\n16.  It is, however, not in dispute that although the raid was conducted on 26.05.2004, no material had been brought on record for even launching a prosecution as against the Appellant as yet. When the aforementioned question was raised by the Appellant, herein before the High Court, the Respondent contended that the prosecution would be launched soon. But, when the same point was raised before us, the Respondents in their counter affidavit merely stated:\n\" In reply to the contents of para OO, it is submitted that the Show Cause Notice in the matter has been drafted and is being issued shortly. Complaint in the matter will be filed only after adjudication. However, detention under the COFEPOSA Act 1974 is not a punitive action and is preventive in nature. Prevention detention under COFEPOSA Act is independent of adjudication and prosecution proceedings.\"\n17.  The said counter affidavit has been affirmed in November, 2005. It is beyond anybody's comprehension as to why despite a long passage of time, the Respondents have not been able to gather any material to lodge a complaint against the Appellant. It has furthermore not in dispute that even the DGFT authorities have not issued any show cause notice in exercise of their power under Foreign Trade Development and Regulation Act, 1994. Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the authorities before issuing the order of detention.\n18.  The question as regard delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.D. Abdul Rahman v. State of Kerala and others [AIR 1990 SC 225] 1989 Indlaw SC 205 stating:\n\"The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention.\nHowever, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.\"\n19.  The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been assigned at all. Admittedly, furthermore, the status report called for from the Customs Department has not been taken into consideration by the competent authorities.\n20. A Division Bench of this Court in K.S. Nagamuthu v. State of Tamil Nadu & Ors. [2005 (9) SCALE 534] 2005 Indlaw SC 748 struck down an order of detention on the ground that the relevant material had been withheld from the detaining authority; which in that case was a letter of the detenu retracting from confession made by him. Having regard to the findings aforementioned, we are of the opinion that grounds (iii) and (iv) of the decision of this Court in Alka Subhash Gadia 1990 Indlaw SC 636 (supra) are attracted in the instant case. For the reasons aforementioned, the impugned order of detention cannot be sustained, which is set aside accordingly. The appeal is allowed.\nAppeal allowed.\n"}
+{"id": "OjkeaBKsoR", "title": "", "text": "Ahamed Nassar v State of Tamil Nadu and Others\nSupreme Court of India\n\n14 October 1999\nW.P. (Cr.) 166 of 1999\nThe Judgment was delivered by : A. P. Misra, J.\n1.  The petitioner has challenged the detention order dated 28th April, 1999 u/s. 3(l)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA').\n2.  The detention order was passed by Shri M.F. Farooqui, Secretary to the Government of Tamil Nadu Public (SC) Department, Chennai which reads as under:\nORDER:\n3. Whereas the Government of Tamil Nadu are satisfied with respect to the person known as Thiru Ahamed Nassar son of Thiru Ahamed, No. 10, Mariamman Koil Street, Pudsupattinam, Ramanathapuram District now a remand pryoner in the Central Prison, Chennai that with a view of preventing him from smuggling goods in further, it is necessary to make the following order :\n\"Now, therefore, in exercise of the powers conferred by S. 3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), the Governor of Tamil Nadu hereby directs that the said Thiru Ahamed Nassar, son of Thiru Ahamed, be detained and kept in custody in the Central Prison, Chennai.\"\n4.  The detenu (Petitioner) arrived at Anna International Airport, Chennai on 12th March, 1999 by Indian Airlines flight from Singapore along with three pieces of baggage, viz., one card board carton marked by Sony VCD MHC-V 818, one card board carton marked Sony VCD SS-V 818 and one green colour 'VENO' zipper shoulder bag and one transparent plastic duty free shop bag as hand luggage. He after completing his immigration formality collected his checked-in-baggage consisting of three pieces from conveyer belt No.2 and proceeded to Table No. 11, where he declared to the Superintendent in charge that he was in possession of one Video CD System, five cellular phone, 10 carton cigarettes and that the value of goods imported by him was Rs. 60,000. On suspicion the Custom officer intercepted the detenu as he suspected the detenu might be carrying contraband or electronic goods in huge quantities.\n5.  On questioning, whether he was carrying any such contraband or electronic goods, he replied in negative. The custom officer not being satisfied took him to the air intelligence unit room along with the said baggage for detailed examination. Even in the presence of witnesses on being questioned he confirmed his name and that he owns three check-in-baggage and one hand bag. On examination of Sony Video CD MHC-V 818 carton, the officer found that it contained one Sony Video CD player model, the second carton Soni Video CD SS-V 818 contained one pair of speakers. The third green colour zipper shoulder bag \"VENO\" contained 1C) cartons of State Express 555 cigarette, each containing 400 sticks and on examining one carton it was found within, it contained two cartons of State Express 555 cigarettes each containing 200 cigarettes.\n6. He further opened and examined both the State Express 555 cigarette cartons and recovered six cellular phone all with transparent polythene cover wrapped in black carbon paper and secured with black cellophone tape from one carton and ten packets of State Express 555 cigarettes each containing 20 cigarettes from the other carton. Similarly he opened and examined the remaining nine State Express 555 cigarette cartons 400/20 capacity and recovered 10 packets of State Express 555 cigarette with 20 sticks in each and six cellular phones from each of the four above said nine State Express 555 cigarette cartons.\n7. The said officer then examined the balance of State Express 555 cigarette cartons of 400/20 capacity and recovered ten packets of State Express 555 cigarette with 20 sticks in each and seven cellular phones from each of the said five cartons. Thereafter the said officer cut open all the cellular phone wrapper and found 23 numbers Samsung SGH cellular phones, 31 numbers Bosch GSM 908 cellular phones and 11 numbers Nokia 6110 cellular phones. Then his hand bag was also opened which contained transparent polythene duty free shop bag containing 14 numbers AIWA HSGS 183 walkmen and his personal effects. So in all total goods in baggage found were 65 cellular phones, 14 AIWA walkmen, 10 cartons of State Express 555 cigarette and one Soni Video CD player.\n8.  The case of the respondent is that the goods brought in were in trade and they were not bona fide baggage goods and the petitioner grossly misdeclared the type and quantity of goods brought by him. In fact he ingeniously concealed the cellular phones in cigarette cartons to evade detection by custom authorities and attempted to clear the goods without payment of appropriate custom duty. The aforesaid 65 assorted cellular phones, 14 AIWA walkmen, 10 cartons of State Express cigarette and one Soni video MHC-V CD system were seized under a mahazar for action under the Customs Act, 1962. The total value of goods seized is Rs. 7,16,200 (GIF) and Rs. 10,74,300 (market value) on the day of seixure.\n9. The further case is on the same day, on 12th March, 1999 he made voluntary statement before custom officers at Anna International Airport, Chennai that since his income was not sufficient so to earn, he took a passport with the help of his friend to import goods to Chennai and to sell them in Burma Bazar. On 7th March, 1999 he went to Singapore and from the income earned there bought some walkmen and one VCD and when he was about to leave Singapore one Seeni Mohamed met and introduced himself and gave some cigarette cartons and five cellular phones at Kualampur to be carried to India and for which in turn he was paid his air ticket. These goods were contained in a green colour VENO zipper bag\n10.  The said friend informed the detenu that on his arrival at Chennai he should carry the said green colour VENO zipper bag outside the air port where it should be handed over to the person identifying him who shall pay him Rs. 15,000. The case of the respondent as disclosed in the counter affidavit is, u/s. 11(2)(u) of the Customs Act, 1962 read with S. 3(3) of the Foreign Trade (Development and Regulation) Act, 1992, import of cellular phones and electronic goods by way of concealment and misdeclaration of its value with an attempt to evade duty, renders such goods liable for confiscation u/s. 111(d), (1) and (m) of the Customs Act. The petitioner was arrested on 13th March, 1999 and produced before the Additional Chief Metropolitan Magistrate, E.O.-II, Chennai, who remanded him to judicial custody till 26th March, 1999. The aforesaid detention order was served on the detenu while he was in the Central Prison, Chennai on 28th April, 1999. On the other hand, case of the detenu is that the Customs officers illegally seized the above goods by obtaining involuntary and false statement from the petitioner by the use of threat, force and intimidation.\n11.  The learned counsel for the petitioner Shri K.K. Mani, submits that the material documents which have bearing effect on the subjective satisfaction of the detaining authority were neither placed nor considered before passing of the impugned detention order. He refers to the following documents :\n(a) Detenu's letter dated 23rd April, 1999 addressed to the detaining authority which was given to the Jail authorities on the same day at 1745 hrs.\n(b) The letter dated 19th April, 1999 sent by his advocate to the customs authority was also not placed before the detaining authority.\n12. Next he submits, on account of delay in considering detenu's representation dated 21st May, 1999 both by the State Government and the Central Government, the detention order is liable to be set aside. For this he submits the following dates:\n(a) Representation of the detenu to the State Government is dated 21st may 1999 which was received by the Slate Government on 22nd May, 1999. After receiving it, remarks were called for on 24th May, 1999 from the sponsoring authority which was received only on 27th May, 1999, The delay pointed out is two days for the dales 25th and 26th May, 1999.\n(b) Representation dated 21st May, 1999 to the Central Government was received on 25th May, 1999 and Central Government called for comments from detaining authority only on the 1st June, 1999. Submission is, this delay could have been eliminated if the same were called through 'FAX' or by 'E- Mail'.\n13. The next submission is, the subjective satisfaction recorded by the detaining authority, that there was likelihood of detenu being released on bail is not based on any factual basis, which shows non-applying of mind by the detaining authority. He submits, the bail application of the petitioner dated 1st April, 1999 was dismissed by the Addl. Chief Metropolitan Magistrate on 12th April, 1999, and no other bail petition was either pending or brought to the notice of the detaining authority when it passed the detention order on 28th April, 1999.\n14.  Finally, he submits that the detaining authority failed to take note that the petitioner was arrested u/s. 104 of the Customs Act for an offence u/s. 135 of the same Act and the conviction for which is only seven years' imprisonment. Hence, there was no compelling reason to detain the detenu under the COFEPOSA. The first submission for the detenu is that there was delay in considering the representation of the detenu by the State Government. It arises out of the following facts. Detenu's representation dated 21st May, 1999 was received by the State on 22nd May, 1999, remarks was called from the sponsoring authority on 24th May. 1999 which was received back on 27th May, 1999. The delay is said to be for these two days, namely 25th and 26th May, 1999. The alleged delay of two days, viz.. 25th and 26th May, 1999 which is the time taken by the sponsoring authority to send its comment.\n15. Though both the authorities were in the same city it cannot be held that this delay is attributable for the delay in disposal of detenu's representation. In a given case, even few days delay may be fatal while in another set of circumstances a longer delay may still be held to be for valid reasons. Expeditious disposal of any representation only means which could be expeditiously disposed of by the concerned authority but should not be with any unexplained delay or delay through carelessness. This would depend on the facts and circumstances of each case.\n16.  In Mst. L.M.S. Ummu Saleema v. Shri B.B. Gujarat and another, [1981] 3 SCC 317 1981 Indlaw SC 407, the Court held that the explanation of each day delay is not a magical formula. It only means it should be done with utmost expedition :\n\"The time imperative can never be absolute or obsessive. The occasional observation made by the Supreme Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu.\"\n17.  In K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Others & State of Karnataka and others, [1991] 1 SCC 476, 1991 Indlaw SC 473 the court held :\n\"The words 'as soon as may be occurring in Cl. (5) of Art. 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circustances of each case. There is no period prescribed cither under the Constitution or under the concerned detention law within which the representation should he dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation.\"\n18. Within this sphere of legal premise we do not find that there was any callousness or undue delay caused by the State Government in disposing of detenu's representation. So far consideration of the detenu representation by the Central Government the relevant facts are, that the detenu sent his representation on 21sl May, 1999 from Chennai which was received in Delhi on 25th May, 1999 and on the same day comments were called from the sponsoring authority at Chennai. Reply was sent by the sponsoring authority on 28th May, 1999 which was received in Delhi on 31st May, 1999. The same was placed before the Deputy Secretary, Central Government on 1st June, 1999 who called for the comment of the detaining authority. This comment was sent by the detaining authority on the 10th June, 1999 which was received by the Central government on 14th June, 1999. On 15th June, 1999 it was submitted to the Special Secretary and on the same day it was rejected and information was sent to the detenu also on the same day. The detenu on these facts presses that there is delay in considering his representation.\n19.  The first is between 25th May, 1999 and 28th May, 1999 and then two days delay in receipt of the same by the Central Government which is on 31st May, 1999. Next the delay is of nine days between 1st June and 10th June. On the 1st June, 1999, the Central Government (Deputy Secretary. COFEPOSA) called for the comment from the detaining authority and on 10th June, 1999 reply was sent by the State Government. Similarly three days delay is said to be when the same was received by the Central Government on 14th June, 1999. In considering this delay it has to be kept in mind this is the communication period as the two authorities are placed at long distance in two different cities, one is in New Delhi and the other is in Chennai.\n20.  The delay is defended to be on account of delay by the postal authorities in communicating the letters. The submission is, when liberty of an individual is affected, faster mode of communication should have been adopted, if necessary, il should have been sent by Air or through a special messenger by flight. This in our considered opinion is too far fetched to be accepted. The liberty of an individual under Constitution is very sacrosanct and there is constitutional obligation cast on the concerned authorities but this liberty should not be so stretched to such unreasonable extent to force communications to be sent through special messenger by air. We have to keep In mind that mode of communication for the statutory authorities has to be in the mode prescribed which has to be reasonable. It has been stated and we have also found from the file placed before us that the mode of these communications were through speed post.\n21. This could not be construed as callous, slack or casual disposition of his representation. For the respondent it was stated from the records that the communication between the Central Government at New Delhi and sponsoring authority and detaining authority at Chennai was through speed post. The stated delay was on account of vagaries of the postal department. It is not attributable to the States. Hence on the facts and circumstances of this case, it is not possible to hold, there was any delay in the disposal of detenue's representation by the Central Government. In our considered opinion there was no delay in consideration of detenu's representation both by the State and the Central Government.\n22.  Reliance has been placed on behalf of the detenu in Venmathi Selvam (Mrs.) v. State of T.N. and Anr., [1998] 5 SCC 510 1998 Indlaw SC 1294. In this case the Court held :\n\"Though the delay is not long, it has remained unexplained. Though the delay by itself is not fatal, the delay which remains unexplained becomes unreasonable. In spite of this well settled legal position the State Government has failed to explain satisfactorily that it had dealt with the representation of the detenu as promptly as possible.\"\n23. In this case even after an opportunity was given by the Court, the State did not file any counter affidavit.\n24.  In Rajammal v. State of T.N. and Anr, [1999] 1 SCC 417 1998 Indlaw SC 1964, the Court held :\n\"The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.\"\n25. In this ease, the Court held that though there is explanation for delay till 9th February, 1998 but no explanation had been given for the delay which occurred thereafter that is to say till 14th February, 1998. These decisions render no help to the detenu. The present case is not such a case. The delay attributed was caused in postal communications. So such a short. delay may not have much bearing. What is relevant is, there should be reasonable explanation for such delay. How the authorities has dealt with the matter? If it was casual, neglect, keeping relevant papers immobile without any reasonable cause are attributable to assess delay. But delay on account of vagaries of or on account of inefficiency of postal or communicating agencies cannot in normal circumstances be taken as inexcusable delay either by the sponsoring or detaining authority or the concerned State authorities in disposal of detenu's representation.\n26.  Mr. R. Mohan learned counsel for the detenu submitted that material and vital documents which have bearing on this subjective satisfaction of the detaining authority were not placed before him. Reference was made to the detenu's letter dated 23rd April, 1999, addressed to the detaining authority, delivered to the jail authorities on the same day at 1745 hrs., and letter dated 19th April, 1999 of his advocate, addressed to the sponsoring authority. Both these letters were not placed before the detaining authority. These letters refer, apart from detenu's retraction from his earlier confession dated 12.3.1999, the information which detenu gave to the custom officers that he was in possession of non-prohibited and dutiable goods for which he is ready to pay its duty. Respondent's reply with reference to letter dated 23rd April, 1999 is that this letter was given to the jail authority late in the evening on the 23rd April, which was dispatched the very next day by speed post, to the Secretary Public, which is prescribed and acknowledged mode for sending letters from jail. 25th April, 1999 being Sunday, the letter reached the Secretariat on 26th April, 1999 which after its segregation and processing reached the concerned Secretary at about 3.00 P.M. on the same day.\n27. This receipt was after the concerned Secretary signed his proposal for the detention on the 24th April, after it was sent to the Minister concerned, who being the detaining authority signed the same on the 26th April, 1999. Thereafter the grounds of detention were sent for translation to the Department of Culture which returned them back on 28th April, 1999 on which date the formal order of detention was signed. Hence, the said representation letter could not be placed before the detaining authority. It is also submitted that after its receipt the Secretary found it containing retraction of the confession but it was only repetition of which was contained in detenu's bail application dated 1st April, 1999, which was placed before the detaining authority and was considered by him.\n28. With reference to the letter of the advocate dated 19th April, 1999, two reasons are stated for it not being placed before the detaining authority. Firstly, it refers to the retraction of confession made by the detenu which is referred to in the detenu's bail application dated 1st April, 1999 and secondly since this was sent to a quasi-judicial authority, it should have accompanied with either a vakalatnama or an authorisation signed by from the detenu. Further it is said that the retraction could not be considered as it was not sent by the detenu himself. As a legal submission it is submitted, Art. 22(5) of the Constitution of India guarantees earliest opportunity to make a representation and its disposal but a detenu has no pre-existing right for expeditious consideration of his representation by the detaining authority prior even to his detention order.\n29.  Submissions so far made are misconceived and hence we have no hesitation to reject the same. The question here is not any consideration of any representation of the detenu expeditiously by the detaining authority prior to his detention order but non-placement of the aforesaid two relevant letters before the detaining authority. What is relevant must be placed before the detaining authority for its consideration.\n30. About sending the letter to the detaining authority it was submitted that the Secretariat to which the letter was sent, was situated at a short distance and hence it should have been sent through a special messenger. Reply is that the same was dispatched through speed post which is the prescribed and acknowledged mode for sending such letters. It is true in a given circumstance, where urgency is spelt out an officer may opt for such a recourse, but where dispatch is through a prescribed mode, which is more expeditious than normal mode, it cannot be attributed that the authorities were cither callous or careless or causal in its dealing.\n31.  So far stand of the respondent with reference to the advocate's letter dated 19th April, 1999 it cannot be held to be a justifiable stand. These technical objections must be shun where a detenu is being dealt under the preventive detention law. A man is to be detained in the prison based on subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have bearing on the issue should be placed before the detaining authority. Sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. Decision is not to be made by the sponsoring authority. The law on this subject is well settled, a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision.\n32.  In Ashadevi wife of Copal Ghermal Mehta (Detenu) v. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat and Anr., [1979] 1 SCC 222 1978 Indlaw SC 61, the Court held :\n\"If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal.\"\n33. This is a case of preventive detention u/s. 3(1) of the  COFEPOSA, where confessional statement retracted by the detenu was not placed before the detaining authority.\n34.  In Ayya alias Ayub v. State of U.P. and Anr., [1989] 1 SCC 374 1988 Indlaw SC 42, the Court held :\n\"There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material; but in the facts of the case the omission to consider the material assumes materiality.\"\nIn Sita Ram Somani v. State of Rajasthan & Ors., [1986] 2 SCC 86 1986 Indlaw SC 58, the court held :\n\"It appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the screening Committee in the first instance, but that is immaterial. It was the detaining authority that had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA. That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material.\"\n35. The aforesaid two letters, viz., dated 23rd April, and 19th April, contains factual assertions not only retraction of his earlier alleged confession but other matters. So far the retraction of confession by the detenu, we accept the stand of the respondent that the same was also recorded in the bail application dated 1st April, 1999 of the detenu which was placed and considered by the detaining authority. But in these letters the stand of the detenu, was that the seized goods are not prohibited goods which passed through the red channel, for which the detenu offered to pay the duty but instead, the officer concerned without listening proceeded to arrest him. It is true, the respondent case is that the detenu brought these goods in trade which were not bona fide baggage and were misdeclared both the type and quantity of goods were found concealed (65 cellular phones in 10 cigarette cartons of State Express 555) to evade detection and payment of custom duty. But this stand is on merits. It is not necessary in these proceedings to go into its merits and demerits.\n36.  The question is not whether the second part of the contents of those letters was relevant or not but whether they were placed before the detaining authority for his consideration. There could be no two opinions on it. It contains the very stand of the detenu of whatever worth. What else would be relevant if not this? It may be that the detaining authority might have come to the same conclusion as the sponsoring authority but its contents are relevant which could not be withheld by the sponsoring authority. The letter dated 19th April, 1999 it reached the sponsoring authority and reached well within time for it being placed before the detaining authority. There is obligation cast on the sponsoring authority to place it before the detaining authority, which has not been done. Even the letter dated 23rd April, 1999 which reached the Secretary concerned at 3.00 P.M. on 26th April, 1999 which was much before the formal detention order dated 28th April, 1999. The Secretary concerned was obliged to place the same before the detaining authority. Respondent authority was not right in not placing it as it contains not only what is already referred to in the hail application dated 1st April, 1999 hut something more.\n37. This shows there was really non-application of mind. It is not in dispute that the relevant date of the issue of formal detention order was 28th April, 1999 though it was signed on the 26th April, 1999. Thus, there should be consideration of all relevant material in case such materials were within the reach of detaining authority till formal detention order was issued. In the case of Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Ors., [1983] 2 SCC 392 1983 Indlaw SC 81, also detention was challenged as relevant material came into existence after signing of the detention order but before issuance of formal order. The advisory board opined in the case of another detenu Shamsi that there was no sufficient cause for Shamsi's detention but this material was not placed before the detaining authority. The defence taken by the State was that the detention order is dated 8th October, 1981 while advisory board's opinion is dated 19th October, 1981.\n38.  The constitution bench of this Court rejected this contention and held :\n\"The explanation offered by Shri Capoor as to why the opinion of the Advisory Board in Shamsi's case was not placed before him is that the report of the Advisory Board in Shamsi's case which is dated October 19, 1981, was not in existence when he 'formulated and ordered to issue the detention order against the petitioner' in this case. We see quite some difficulty in accepting this explanation. In the first place, the fact that it was on October 8, 1981 that Shri Capoor had directed the detention of the petitioner is a matter of no consequence. The order of detention was issued, that is to say passed, on November 7, 1981 and we must have regard to the state of circumstances which were in existence on that date. Shri Capoor seems to suggest that the Advisory Board's opinion dated October 19, 1981 came into existence after he had made up his mind to pass an order of detention against the petitioner on October 8, 1981 and, therefore, he could not take, or need not have taken, that opinion into account. The infirmity of this explanation is that the order of detention was passed against the petitioner on November 7, 1981 and the Advisory Board's opinion in Shamsi's case was available to the State Government nearly three weeks before that date.\"\nThe above was a case where detention order was signed on 8th October hut formal order was only signed on 7th November, 1981. The relevant material, viz., opinion of the Advisory Board came into existence on 19lh October, 1991. i.e., between the aforesaid two dates. Non-placement of the opinion, which came into existence after signing of detention order before the detaining authority was held to vitiate the detention. Thus issuance of the formal order is held to be relevant date upto which, if any, relevant material comes in possession of the concerned authority has to be placed before the detaining authority. In the present case, we find the letter of detenu dated 23rd April, 1999 was received on 26lh April, 1999, i.e., before issuance of formal detention order dated 28th April, 1999. It was incumbent for the Secretary concerned to have placed it before the detaining authority. So we conclude, non-placement of those two letters which were relevant, vitiates the impugned detention order.\n39.  Next submission is, the detaining authority while recording his subjective satisfaction recorded that there was likelihood of detenu being released on bail was based on no factual basis. Such recording in the absence of any material shows non-application of mind by the detaining authority. The facts are the detenu moved the bail application on the 1st April, 1999, which was dismissed by the Additional Chief Metropolitan Magistrate (E.O. II), Madras on 12th April, 1999. No other bail application was brought to the notice of the detaining authority till the date he passed the detention order or 28th April, 1999. Repelling this contention. submission for respondent-State is that this rejection of the bail application was placed before the detaining authority, who was aware that detenu was entitled to go in appeal for bail up to the higher forum, namely, Sessions Court, High Court etc. It is in anticipation of such expected action from the detenu the said subjective satisfaction was arrived at. Submission is in fact later a bail application was moved in the Session Court which was dismissed on the 23rd April, 1999 and another hail application was filed in the High Court on the same day which was also dismissed on 30th April, 1999 which is after passing of the detention order.\n40.  In interpreting any provision of Preventive detention law, its prcamble and its objectives have to be kept in mind. The Preamble of COFEPOSA is :\n\"An act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith.\"\nThe object and reasons of this Act is also incorporated therein;\n\"Whereas violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State;\nAnd whereas having regard to the persons by whom and the manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude and clandestinely organised and carried on, it is necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith;\"\nSo this 'Act' is brought in for the conservation and augmentation of foreign exchange and for the prevention of smuggling. This became necessary as there were large scale violations of foreign exchange regulations and increasing smuggling activities affecting the National economy. In other words, it was brought in to prevent such clandestine activities by detaining such person.\n41.  In order to achieve this objective, in the national interest an obligation is cast on the State even to curtail the most sacred of the human rights, viz., his personal liberty. The source of power to curtail this, flows from Art. 22 of the Constitution of India within the limitation as provided therein. Every right in our Constitution within its widest amplitude is clipped with reasonable restrictions. Right u/art. 15 not to be discriminated on grounds of religion, race, caste, sex, etc., is clipped through its sub-cls. (3) and (4) while making provisions for women, children, socially and educationally backward classes, Scheduled castes and Schedule Tribes respectively. Art. 16 creates right for equality of opportunity in the matter of public employment which is curtailed through its sub-clauses (3), (4), (4A) and (5) by enabling the Parliament to make law confining to a class or classes for employment to an office even prior to such employment, permitting reservation in favour of backward class, Scheduled castes and Scheduled tribes or in the cases of religious denominational institution.\n42. Each of the most solemn rights of any citizens is cloaked with reasonable restrictions under various sub-clauses of Art. 19. The protection of life and personal liberty enshrined in Art. 21 itself contains the restriction which can be curtailed through the procedure established by law, which of course has to be reasonable fair and just. Art. 22 confers power to deprive of the very sacrosanct individual right of liberty under very restricted conditions. Sub-cls. (1) and (2) confers right to arrest within the limitations prescribed therein. Sub-cl. (3) even erases this residual protective right under sub-cls. (2) and (3) by conferring right on the authority to detain a man without trial under the preventive detention law. This drastic clipping of right is for a national purpose and for the security of the State.\n43.  Similarly, Article 301, Chapter XII of the Constitution confers right to trade, commerce and intercourse freely through out the territory of India but succeeding Articles, viz., Articles 302, 303 and 304 slice that absolute freedom in various grades and degrees. Each of such checks and clippings in the absolute right of an individual is made within the sphere of certain reasonableness to give preference, when in conflict with the collective right of and for the gain of the society. Man is a social animal who dedicates his works to enrich the social coffer for enriching social development. On one hand individual rights are well recognised but when it makes dent on society, affecting public right it gives way. This is the pattern of our Constitution. So far as individual rights are concerned they are recognised and fully protected but such right is curtailed when it tramples on community right or right of public at large. It is severely curtailed when it tramples with considerable magnitude for self gain, deleteriously effecting the national interest by dealing such person sternly through preventive detention without trial, for a specified period within the limitation provided therein. So in any organised society there can be no right in absolute term. Thus courts must first find, the extent of individual right deciphering with the degree of trespass he makes on the public right, on which there is embargo. Where an individual acts clandestinely for his personal gain against national interest deleteriously affecting national economy or security the drastic curtailment of his right should be kept in mind to see that no such person escapes from the clutches of law. On the one hand, as it takes away ones liberty it should be strictly construed, on the other hand to subserve the objective of this Act, in the national interest it should be seen that no such person escapes.\n44.  In this backdrop of the Constitutional scheme, the preamble as also the objects and reasons of COFEPOSA we have to scrutinize and test the justiciability of the acts of every statutory functionary performing statutory obligations under the Act. It is well settled that whenever there are two possible interpretations of a statute, the one that subserves the objective of an enactment is to be accepted.\n45. The same principle shall with equal force apply in testing the credibility of the acts of a statutory functionary performing their statutory obligations. Such authorities, while performing their obligations under the preventive detention law must perform it on one hand with promptness, as not to further lengthen detenus detention through their causal conduct, neglect, lethargy, etc., on the other hand all what is required to be done by it is if it has been done then in construing its conduct, conclusions etc., if there be two possible interpretations then the one that subserve the objective of the statute should be accepted.\n46.  Next, returning to the issue under consideration, as to what should be the measure to test the legality of the subjective satisfaction of the detaining authority when he records, \"there is likelihood of detenu being released on bail\". Even for judging this we have to keep in mind the aforesaid conspectus of the Constitution, preamble, objects and reasons of the Act. When one's liberty is to be curtailed, on the subjective satisfaction of the detaining authority, with area of interference by the court being limited, then within this limitation, Court must see, in this authority privileged area that the detaining authority does not stretch itself illegitimately in the exercise of its jurisdiction.\n47. Learned counsel for the detenu relies on Dharmendra Suganchand Chelawat through his sister Km. Archana Chelawat & Suganchand Kan-naiyyalal Chelawat through his daughter Km. Archana Chelawat v. Union of India & Ors., [1990] 1 SCC 746,1990 Indlaw SC 73 in this case the Court held :\n\"In the present case there was no material in the grounds of detention showing that the detaining authority apprehended that the further remand would not be granted by the Magistrate on October 13, 1988, and the appellants would be released from custody on that day. On the other hand the bail applications moved by the appellants had been rejected by the Sessions Judge a few days prior to the passing of the order of detention. The grounds of detention disclose that the appellants were engaged in activities which are offences punishable with imprisonment under the Narcotic Drugs and Psychotropic Substances Act, 1985. It cannot, therefore, be said that there was a reasonable prospect of the appellants not being further remanded to custody on October 13, 1988 and their being released from custody at the time when the order for preventive detention was passed on October 11, 1988\"\n48.  In the above, it was a case under Narcotic Drugs and Psychotropic Substances Act, 1985, therefore, it cannot be said that there was a reasonable prospect of the appellant being released on bail.\n49. In Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors., [ 1986] 4 SCC 416 1986 Indlaw SC 784, the detenu was in detention when order of detention u/s. 3(2) National Security Act, 1980 was served on him. There were criminal cases against him and in one of them the offence was S. 303 of the IPC. When the order of detention was passed the petitioner had not surrendered but when it was served petitioner had already surrendered. In this background subjective satisfaction of the order of detention was challenged as there was no likelihood of the detenu being released on bail.\nThis Court held :\n\"If a man is in custody and there is nc imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order,\"\n50. In this case there existed prima facie no scope to release him on bail as the offence was under S. 303 IPC.\n51. In Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Ors., [1994] 1 Supp. SCC 597 1993 Indlaw SC 1262, reliance is placed on the following passage which approved the case of Kamarunnissa v. Union of India, [1991] 1 SCC 128 1990 Indlaw SC 85 held :-\n\"The decisions of this Court to which our attention was drawn by the learned counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity, if set at liberty.\"\nThe above decision is strongly relied by learned counsel for the detenu as detention therein was also u/s. 3 of the COFEPOSA pertaining to an offence u/s. 135 of the Customs Act. It was held that the State could not bring to the notice any material indicating that release of the petitioner was imminent or there was a likelihood of his being released. In that case the bail application was finally dismissed on June 9, 1992 and hence there was no scope for presuming a likelihood of his being released on bail. Further significantly proposal for the detention was sent on May 22, 1992 but the authority concerned passed the order only on August 18, 1992, after several months without appraising of the facts prevailing in the middle of the August 1992. The above decision is, therefore, distinguishable on facts.\nThe Court in the above case records :\n\"The bail petition filed by him were dismissed finally on June 9, 1992. He did not move any bail application thereafter... It is pointed out that according to counter, proposal for the detention of petitioner was sent to the Administrator on May 22, 1992 but the authority passed the order only on August 18, 1992 without apprising himself of the fact situation prevailing in the middle of August 1992.\"\n52. We have already observed in the matter of testing satisfaction of any detaining authority, it has to be tested on the facts and circumstances of each case. Examining the facts in the present case, we find in para 7 of the counter affidavit filed on behalf of respondent No.l (State) by Mr. S. Retnaswamy, Deputy Secretary to Government, Public Department, Government of Tamil Nadu, Chennai-9 it is stated :\n\"It is further submitted that the detaining authority has considered the bail application of the detenu dated 1.4.1999 and arrived at the subjective satisfaction that there is likelihood of the release of the detenu on bail and hence it cannot be staled that there is non-application of mind on the part of the detaining authority.\"\nSo before the detaining authority, there existed not only order dated 12.4.1999 rejecting his bail application but the contents of the bail application dated 1.4.1999. The averment made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail.\n53.  The words \"likely to be released\" connote chances of being bailed out, in case there be pending bail application or in case, if it is moved in future, is decided. The word \"likely\" shows it can be either way. So without taking any such risk if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion.\n54. The contents of bail application would vary from one case to the other, coupled with the different set of circumstances in each case, it may be legitimately possible in a given case for a detaining authority to draw an inference that there is likelihood of detenu being released on bail. The detention order records :-\n\"The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court(s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released.\"\nThus we hold the conclusion of the detaining authority on the facts of the present case, \"there is likehood of his being released on bail\" cannot be said to be based on no relevant material. However, in view of our findings, viz., non-placement of two material documents, one letter dated 19th April, 1999 by the advocate of the detenu to the sponsoring authority and the other, letter dated 23rd April, 1999 by the detenu, before the detaining authority which were relevant and were likely to affect the satisfaction, hence we have no hesitation to hold that the detention of the petitioner u/s. 3(1) of the COFEPOSA vitiates and the detention order is unsustainable in law.\n55.  Accordingly, we quash the impugned detention order dated 28th April, 1999 passed by the detaining authority u/s. 3(I)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The writ petition is accordingly allowed. The petitioner be released from jail forthwith unless required in connection with some other case.\nPetition allowed.\n"}
+{"id": "zKG5mSoyPs", "title": "", "text": "Rajendrakumar Natvarlal Shah v State of Gujarat and Others\nSupreme Court of India\n\n10  May  1988\nCriminal Appeal No. 319 of 1988\nThe Judgment was delivered by : A. P. Sen, J.\n1.  This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November, 1987 and the connected petition under Art. 32 of the Constitution are directed against an order passed by the District Magistrate, Panchmahals, Godhra dated 28th May, 1987 for the detention of the appellant under sub-s. (2) of s. 3 of the  Gujarat Prevention ofAnti-Social Activities Act, 1985 on being satisfied that it was necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.\n2.  It is not an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc. from wine merchants of Vanswada in the State of Rajasthan. But then by engaging himself in such activities he falls within the description of a 'bootlegger' as defined in s. 2(b) and therefore comes within the ambit of sub-s. (1) of s. 3 of the Act by reason of the legal fiction contained in sub-s. (4) thereof.\n3.  Put very briefly, the essential facts are these. On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop. After a long chase, the police jeep was able to intercept the truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty. However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc. and it was evident from the statements of the driver and the cleaner who were arrested, that the appellant was the person who had purchased the liquor from wine merchants of Vanswada. On 4th January, 1987 the statements of the witnesses were recorded. Apparently, the appellant absconded and he could not be traced till 2nd February, 1987 when he was arrested but later released on bail. In the meanwhile, he moved the Sessions Judge, Panchmahals for anticipatory bail on 21st January, 1987 but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest. The appellant is being prosecuted for various offences under the Bombay Prohibition Act, 1949 as applicable to the State of Gujarat, in Criminal Case No. 154/86. On 28th May, 1987 i.e. after a lapse of five months the District Magistrate, Panchmahals, Godhra passed the order of detention along with the grounds therefore which was served on the appellant on the 30th when he was taken into custody. The immediate and proximate cause for the detention was that on 20/30th December, 1986 he transported in bulk foreign liquor from liquor merchants of Vanswada in the State of Rajasthan intended and meant for delivery to persons indulged in anti-social activities by doing illict business of foreign liquor in the State of Gujarat. Incidentally, the grounds furnish particulars of two other criminal cases, namely,\n(i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor recovered and seized from his residential house on 21st July, 1982, but the case ended in an acquittal as the prosecution case witnesses turned hostile, and\n(ii) Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house on 30th May, 1986 which case was still pending. It was said that persons like the appellant bringing foreign liquor from other States illegally without a permit on a brokerage and storing the same in their permises are not easily detected and there was no other method of preventing such persons from engaging in such anti-social activities except by detention under s. 3(2) of the Act.\n4.  In the writ petition before the High Court the appellant assailed the impugned order of detention mainly on two grounds, namely:\n(i) The failure of the detaining authority to record his subjective satisfaction as required under sub-s. (2) of s. 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to public order, renders the order of detention bad and invalid.\n(ii) There was no sufficient material on record on which such subjective satisfaction of the detaining authority could be reached. Neither of the two contentions prevailed with the High Court and it accordingly declined to interfere.\n5.  At the time when the judgment was to be delivered by the High Court, learned counsel appearing for the appellant sought permission to raise an additional point and he was permitted to do so. It was as to whether the detention of the detenu at Sabarmati Central Prison, which was a place other than Godhra where he ordinarily resides, was tantamount to a breach of the mandate of Art. 21 of the Constitution as his detention at a far-off place was not consistent with human dignity and civilized normes of behaviour. The additional point so raised also did not find favour with the High Court. The appeal by special leave is directed against this judgment. Learned counsel for the appellant has however not preferred to rais these questions over again.\n6.  In the connected petition under Art. 32 learned counsel for the appellant has, in substance, put forth the following contentions, namely:\n(1) There is no explanation forthcoming for the admitted delay of five months in making the impugned order of detention and such inordinate unexplained delay by itself was sufficient to vitiate the order.\n(2) The impugned order of detention was bad in law inasmuch as there was non- application of mind on the part of the detaining authority. There was nothing to show that there was awareness of the fact that the appellant had applied for grant of anticipatory bail nor was there anything to show that the detaining authority was satisfied about the compelling necessity to make an order for detention which, it is said, was punitive in character. It is said that there was no occasion to commit the appellant to prison while he was on bail in a criminal case facing charges under the Bombay Prohibition Act, 1949 merely on the suspicion of being a bootlegger.\n(3) The impugned order of detention was ultra vires the District Magistrate and void ab initio as it displayed lack of certainty and precision on the part of the detaining authority as to the purpose of detention. There was clubbing of purposes as it mentioned that such detention was necessary\n(i) in the interests of the nation with a view to stop the anti-national activities,\n(ii) for ensuring of public peace,\n(iii) for maintenance of public health, and\n(iv) in the interest of the State, all rolled up into one.\n(4) There was delay in the disposal of the representation made by the appellant to the State Government which renders his continued detention invalid and constitutionally impermissible. We shall deal with the contentions in seriatim.\n7.  Point No. (1): It has always been the view of this Court that detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens. When the life and liberty of citizen was involved, it is expected that the Government will ensure that the Constitutional safeguards embodied in Art. 22(5) are strictly observed. When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by Art. 22(5) as construed by this Court. Thus, this Court in Khudiram Das v. State of West Bengal, [1975] 2 SCC 81 1974 Indlaw SC 467 speaking through Bhagwati, J. observed:\n\"the Constitutional imperatives enacted in this article are two-fold:\n(1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made, and\n(2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security.\"\n8.  As observed by this Court in Narendra Purshotam Umrao v. B.B. Gujral, [1979] 2 SCR 315 1978 Indlaw SC 272 when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention.\n\"...it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.\"\n9.  Nevertheless, the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or with persons engaged in anti-national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in anti-social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of Art. 22(5) of the Constitution.\n10.  There is an inexorable connection between the obligation on the part of the detaining authority to furnish the 'grounds' and the right given to the detenu to have an 'earliest opportunity' to make the representation. Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention. The requirements of Art. 22(5) are satisfied once 'basic facts and materials' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu. The test to be applied in respect of the contents of the grounds for the two purposes are quite different. For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be a real and effective opportunity. The Court may examine the 'grounds' specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc. and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order.\n11.  In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activity complained of under s. 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under s. 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Art. 22(5) would not be satisfied unless the 'basic facts and materials' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would neces sarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.\n12.  Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warrented unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin v. Union of India & Ors., 1987 Indlaw DEL 10199Crl. W. No. 410/86 dated 2.2.1987, Bhupinder Singh v. Union of India & Ors., [1985] DLT 493, Anwar Esmail Aibani v. Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986, Surinder pal Singh v. M.L. Wadhawan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984 and other cases taking the same view do not lay down good law and are accordingly overruled.\n13.  In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986. The District Magistrate in the counter- affidavit has averred that it was revealed from the statements of the witnesses recorded on 4th January, 1987 that the appellant was the person actually involved. Apprehending his arrest the appellant applied for anticipatory bail on 21st January, 1987. It appears that on the same day the appellant apears to have made a statement that there was no proposal at that stage to arrest the appellant. However, later it was discovered that there was no trace of the appellant. He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts. Meanwhile, the proposal to detain the appellant was placed before the District magistrate. It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under s. 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention. The appellant was taken into custody on 30th May, 1987. He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st.\n14.  Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action. These are admirably dealt with in Durga Das Basu's Shorter Constitution of India, 8th edn. at p. 154. We will only notice to a few salient decisions. In Olia Mallick v. State of West Bengal, [1974] 1 SCC 594 1974 Indlaw SC 434 it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order. Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity. In Golam Hussain @ Gama v. The Commissioner of Police, Calcutta & Ors., [1974] 3 SCR 613 1974 Indlaw SC 411, it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. But no 'mechanical test by counting the months of the interval' was sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The Court has to investigate whether the casual connection has been broken in the circumstances of each case. In Odut Ali Miah v. State of West Bengal, [1974] 4 SCC 127 1974 Indlaw SC 491 where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw' and it was held that the 'time-lag' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. In Vijay Narain Singh v. State of Bihar, [1964] 3 SCC 14 1984 Indlaw SC 230, one of us, Sen, J. observed:\n\"On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non-existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order.\"\n15. See also: Gora v. State of West Bengal, [1975] 2 SCR 996 1974 Indlaw SC 466; Raj Kumar Singh v. State of Bihar & Ors., [1986] 4 SCC 407 1986 Indlaw SC 512 and Hemlata kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647 1981 Indlaw SC 322.\n16.  Point No. (2): Quite recently, we had occasion to deal with this aspect in Bal Chand Bansal v. Union of India & Ors., JT (1988) 2 SC 65 1988 Indlaw SC 73. In repelling a contention raised on the dictum in Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232 1985 Indlaw SC 63, one of us (Sharma, J.) drew attention to the observations of Mukharji, J. in Suraj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378 1986 Indlaw SC 785 that the prejudicial activities of the person detained were 'so interlinked and continuous in character and are of such nature' that they fully justified the detention order. Here the grounds of detention clearly advert to two earlier incidents, one of 21st July, 1982 for which the detenu was being prosecuted in Criminal Case No. 303/82 relating to the recovery and seizure of 142 bottles of foreign liquor from his residential house which ended in an acquittal because the prosecution witnesses turned hostile, and the other of 30th May, 1986 for which Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house was then still pending, and go on to recite that the launching of the prosecution had no effect inasmuch as he had not stopped his activities and was continuing the importation of foreign liquor from across the border. The earlier two incidents are not really the grounds for detention but they along with the transaction in question of importation of foreign liquor in bulk show that his activities in this transaction afforded sufficient ground for the prognosis that he would indulge in such anti-social activities again, if not detained. The District Magistrate in his counter- affidavit has stated that he was aware of the fact that the detenu had on 21st January, 1987 applied for anticipatory bail but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest. It however appears that he was arrested on 2nd February, 1987 and on his own made a statement admitting the facts.\n17. Thereafter, he seems to have disappeared from Godhra. In the circumstances, it cannot be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did. There is a mention in the grounds of the two criminal cases pending against the detenu and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and therefore there was compelling necessity to detain him.\n18.  Point No. (3): The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one' at first blush appears to be attractive but on deeper reflection seems to be of little or no consequence. The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order. It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a 'bootlegger' as defined in s. 2(b) and therefore he comes within the purview of sub-s. (1) of s. 3 of the Act, by reason of sub-s. (4) thereof. Sub-s. (4) of s. 3 with the Explanation appended thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order' and reads:\n\"(4) For the purpose of this section, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order' when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.\nExplanation: For the purpose of this sub-section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or widespread danger to life, property or public health.\"\n19.  The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained. In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction. They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him under s. 3(2) of the Act, and recite:\n\"In order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti-national activities ..... for the purpose of public order and public peace and in the interest of the State .....\"\n20.  In our opinion, these words added by way of superscription were wholly unnecessary. They were set out by the District Magistrate Presumably because of total prohibition in the State. In future, it would be better for the detaining authority acting under ss. 3(1) and 3(2) of the Act, to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar.\n21.  Point No. (4): The contention that there was unexplained delay in disposal of the representation made by the appellant to the State Government appears to be wholly misconceived. Admittedly, the appellant made his representations to the State Government as well as to the Advisory Board on 8th June, 1987. The State Government acted with promptitude and after due consideration rejected the same on 12th June, 1987. There was no delay much less inordinate delay in consideration of the representation.\n22.  The result therefore is that the appeal as well as the writ petition fail and are dismissed.\nAppeal dismissed\n"}
+{"id": "S87XwXaHCP", "title": "", "text": "T.A. Abdul Rahman v State Of Kerala And Ors.\nSupreme Court of India\n\n23 August 1989\nCriminal Appeal No. 3 18 of 1989.\nThe Judgment was delivered by : S. R. Pandian, J.\n1. This appeal under Article 136 of the Constitution of India is preferred by the appellant, Abdul Rahman questioning the validity and correctness of the order of detention passed by the first Respondent on 7.10.1987, in exercise of the powers conferred by section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex- change and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter referred to as the 'Act') whereby detaining the appellant's brother Sri T.A. Sirajudeen @ Siraj (the detenu herein) with a view to pre- venting the detenu from engaging in transporting or conceal- ing or keeping smuggled gold or dealing in smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled gold.\n2. Though the impugned order was passed on 7.10.1987, the detenu was arrested on 18.1.1988 and detained in the Central prison, Trivandrum from 19.1.1988 onwards. The detenu was fur- nished with copies of the grounds of detention and other connected material documents on 21.1.1988. The detenu made a representation to the third Respondent praying for revocation of the detention order on 25.1.1988 which was rejected on 11.4.1988. Meanwhile on 11.2.1988 a declaration by the third Respondent under Section 9(1) of the Act was made, whereby the detenu was ordered to be detained for a continued detention for a further period of 6 months over one year. The first Respondent made a reference under section 8 of the Act on 5.5. 1988 to the Advisory Board which has reported that there is in its opinion sufficient cause for the detention of the detenu. The material facts which neces- sitated the passing of the detention order can be briefly stated thus:\n3. On 30.11.1986, Superintendent of Central Excise, Manjeri Range and party searched the permanent residence of the detenu in his presence which did not result in the seizure of any contraband goods or the recovery of any incriminating documents. But on questioning by the officer, the detenu confessed that he had buried eleven gold biscuits in the backyard of his house. He dug up the spot and produced the relavent gold biscuits which were kept concealed under the ground. Each of the gold biscuits was found wrapped in black carbon paper bearing foreign markings and weighing 10 tolas each with the purity of 24 carats. The total weight of the eleven gold biscuits was 1282.600 gms., the market value of which as on that date was Rs.3,14,237. The contraband goods were seized under a Mahazar. On 30.11.1986 a statement was recorded from the detenu by the Superintendent of the Central Excise under section 108 of the Customs Act in which the detenu had given a detailed note of his involvement in the smuggling activities. On 9.12.1986 also the Superintendent of Central Excise searched the residence of the detenu in the reasonable belief that there was concealment of more smuggled gold in the said house.\n4. During this search, the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of his house. The Superintendent took out the packet and it was found containing four gold ingots bearing foreign markings weighing 466.400 gms. with 24 carat purity, all to the value of Rs. 1,14,268. The detaining authority taking into consideration of the seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached its subjective satisfaction of the necessity of passing the impugned order and passed the same on 7.10.1987. The appellant filed a Writ Petition under Article 226 of the Constitution of India for quashing the impugned order of detention, but was not successful. Hence this appeal.\n5. Of the several grounds urged in the Special Leave Petition, the learned counsel appearing on behalf of the appellant stressed only the following two contentions seeking to set aside the order of detention.\n(1) As there is no proximity in time to provide a rational nexus between the alleged prejudicial activity, that is the seizure of the gold biscuits on 30.11.1986 and the passing of the impugned order of detention after 11 months i.e. on 7.10.1987 and as there is no reasonable and satisfactory explanation given by the first Respondent for this undue and unreasonable delay, the order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention is snapped. Further the unreasonable and unexplained delay between the date of the order of detention on 7.10.87 and the date of arrest of the detenu after a lapse of 3 months on 18.1.1988 throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to an inference that there was no real and genuine subjective satisfaction as regards the necessity to detain the detenu with a view to preventing him from acting in prejudicial manner.\n(2) The representation submitted by the detenu to the third Respondent on 25.1.1988 challenging the impugned order clamped upon him had been disposed of by a delay of 72 days i.e. on 11.4.1988 and this long and avoid- able delay vitiates the order of detention as being violative of Article 22(5) of the Constitution of India. We shall now deal with the first contention which is referred underground Nos. II & III of the Grounds in the Special Leave Petition which read thus:\n\"For that the High Court ought to have seen that the petitioner was detained on the basis of a alleged solitary incident occurred on 30.11.1986 and the detention order was passed after lapse of 11 months, i.e. on 7.10.1987, and the petitioner was arrested and detained on 19.1.1988.\"\n\"For that the High Court ought to have seen that there was no proximity between the alleged incident and subsequent detention. The time factor has not been considered by the detaining authority and he has mechanically passed the detention order without paying any attention to the loose grounds and quick sands in the reports of the sponsoring officer.\"\n6. The above two contentions are sought to be answered by the first Respondent in his counter stating that the investigating officer had to question a number of persons and to conduct extensive search of various premises in different places in connection with the information gathered during interrogation and the Superintendent issued summons to the brothers of the detenu, namely, Haneefa and Abdul Rahman for appearance on 10.3.87 and 3.3.87 respectively, but Abdul Rahman was absconding and that on 10.2.87, the statement of C.K. Madhavan referred to in the statement of the detenu was recorded and that on 18.5.1987 show cause notices were issued to persons connected with this case and immediately after completion of the investigation the Customs authorities sponsored the proposal for detention of the detenu by their letter dated 26.8.1987 and that the proposal was screened by the Screening Committee on 11.9.1987 and there- after the detention order was passed on 7.10.1987.\n7. Coming to the delay in securing the detenu by arrest the explanation is given as follows:\n\"The detention order was forwarded to the Malappuram Superintendent of Police for its execution by letter dated 9.10. 1987. The Police executed the order on 18.1. 1988. From the above facts it is clear that there is no delay in passing or executing the order of detention as alleged in the petition for Special Leave to Appeal.\"\n8. There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of sei- zure of the eleven gold biscuits from the back courtyard of the house of the detenu. As repeatedly pointed out by this court that there is no hard and fast rule that merely be- cause there is a time lag between the offending acts and the date of order of detention, the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that had occurred in passing the order.\n9. There is a catena of decisions on this point, but we feel that it is not necessary to recapitulate all those decisions except a salient few. This court in Golam Hussain alias Garna v. Commnr. of Police of Calcutta & Ors., [1974] 4 SCC 530 1974 Indlaw SC 411 wherein there was a time lag of 6 months between the incident and the date of order of detention while answering a similar contention, laid down the ratio of proximity as follows:\n\"No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule other- wise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case. Gora v. State of West Bengal, [1975] 2 SCR 996 1974 Indlaw SC 466 has held thus:\nThere is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of deten- tion. It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it. The prejudicial act of the detenu may in a given case be of such a character as to sug- gest that it is a part of an organised opera- tion of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.\"\n10. In Hemlata Kantilal Shah v. State of Maharashtra 1981 4 SCC 647 1981 Indlaw SC 322, this Court held:\n\"Delay ipso facto in passing an order of detention is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactori- ly examined by the detaining authority.\"\nSee also SK Serajul v. State of West Bengal, [1975] 2 SCC 78 1974 Indlaw SC 475; Rekhaben Virendra Karadia v. State of Gujarat & Ors., [1979] 2 SCR 257 1978 Indlaw SC 71; Harnek Singh v. State of Punjab, [1982] 1 SCC 116 1981 Indlaw SC 601: Shiv Ratan Makin v. Union of India and Others, [1986] 1 SCC 40l 1985 Indlaw SC 301; Smt. K. Aruna Kumari v. Government of Andhra Pradesh and Ors., [1988] 1 SCC 296 1987 Indlaw SC 28061 and Rajendra Kumar Natvarlal Shah v. State of Gujarat and Others, [1988] 3 SCC 153 1988 Indlaw SC 71.\n11. In a recent decision in Yogendra Murari v. State of U.P. and Others 1988 (4) SCC 559 1988 Indlaw SC 802, this Court has reiterated the earlier view consistently taken by this Court observing:\n\"......... it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay ............ It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not.\"\n12. The conspectus of the above decisions can be summarized thus:\nThe question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.\n13. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.\n14. In the light of the above proposition of law, we shall now examine the first contention which has been raised for the first time before this Court. From the reading of the counter affidavit filed on behalf of the first Respondent, it is seen that the detaining authority has attempted to explain the laxity that has occasioned in passing the im- pugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score. The learned counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order of detention made on 7.10.1987, he has frankly admitted that he could not do so--rightly so in our view--in the absence of any expla- nation in the counter affidavit.\n15. The Superintendent of Police, Malapurram to whom the detention order was forwarded for execution has not filed any supporting affidavit explaining the delay in securing the arrest of the detenu. Under these circumstances, we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non-explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention.\n16. The next contention stressed by the learned counsel for the appellant is with regard to the delay of 72 days in the disposal of the representation made by the appellant to the third respondent on 25.1. 1988. This contention is raised in ground Nos. VIII and IX of the Grounds in the Special Leave Petition. This is resisted by the third respondent in para- graph 8 of his counter stating that a representation dated 2.2.1988 was received in the COFEPOSA Section of Ministry of Finance on 16.2.1988 with a letter dated 5.2.1988 from the Government of Kerala; that as certain information was not available with the Central Government, the Collector of Customs, was asked to get a copy of the representation from the State Government and to send his comments; that Collector of Customs, informed the Central Government by a telex message dated 1.3.1988 which was received in the COFEPOSA Section on 8.3.1988 informing that the representation was not available with the Home Department; that thereafter a copy of the representation was forwarded to the Collector of Customs by post on 8.3.1988; that the comments of the Col- lector were received back on 28.3.1988; that then the representation along with the comments were placed before the Joint Secretary, COFEPOSA Section on 30.3.88, who forwarded the same to the Minister of State for Revenue on the same day and on 4.4.88 the Minister of State forwarded his comments to the Finance Minister who considered and rejected the representation on 8.4.88. According to the third Respondent, the representation was considered expeditiously and as such there is no violation of Article 22(5) of the Constitution of India.\n17. The learned counsel for the appellant has explained that the representation was submitted originally on 25.1.1988, but was got back and resubmitted on 2.2.1988. According to him, it is surprising that the said representation was received by the third respondent only on 16.2.1988 after a considerable delay of two weeks and thenceforth there was a considerable delay from 16.2.88 to 28.3.88 in receiving the comments of the Collector of Customs, and again there was a delay of 7 days in forwarding the representation to the Minister of State for Revenue with the comments of the Joint Secretary, COFEPOSA Section. The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin indicate the casual and indifferent attitude displayed by the authorities concerned dealing with the representation.\n18. In our opinion, the manner in which the representation has been dealt with reveals a sorry state of affair in the matter of consideration of the representation made by the detenu. Further we fail to understand why such a long delay from 16.2.88 to 28.3.88 had occasioned in getting the comments from the Collector of Customs. The only futile explanation now offered by the third respondent is that this delay had occasioned because the Collector of Customs was not able to get a copy of the representation from the Home Department, Kerala and thereafter the Collector got a copy of the representation on being forwarded by the third respondent on 8.3. 1988. Even then there is a delay of 20 days in getting the comments of the Collector and that delay is not at all explained.\n19. This Court in Rama Dhondu Borade v. Shri V.K. Saraf Commissioner of Police & Ors., [1989] I Scale Vol. 4 22 1989 Indlaw SC 618 after referring to various decisions, has observed thus:\n\"The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation with reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the Constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty-the highly cherished right-which is enshrined in Article 21 of the Constitution.\"\n\" ....... What is reasonable dispatch de- pends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.\"\n20. Bearing in mind the above principle when we approach the facts of the present case, we are of the firm view that the representation of the detenu has not been given prompt and expeditious consid- eration, and was allowed to lie without being properly attended to. The explanation now offered by the third re- spondent that the delay has occurred in seeking the comments of the Collector of Customs etc. is not a convincing and acceptable explanation. In our view the delay in 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority. Hence we hold that the unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India, rendering the order of detention invalid.\n21. For all the above mentioned reasons, we allow this criminal appeal by setting aside the judgment of the High Court, quash the impugned order of detention and direct the detenu to set at liberty forthwith.\nAppeal allowed\n"}
+{"id": "kWCRNYdWCs", "title": "", "text": "Abdu Salam @ Thiyyan S/O Thiyyan Mohammad,Detenu No. 962, Ge v Union Of India And Others\nSupreme Court of India\n\n17 April 1990\nCriminal Appeal No. 271 of 1990.\nThe Judgment was delivered by : K. Jayachandra Reddy, J.\nLeave granted.\n1.  This is an appeal seeking a writ of habeas corpus. The appellant who has been detained under Section 3(1)(i) and 3(1)(iii) of the COFEPOSA Act, 1974, has challenged the detention order. The appellant is a native of Panakkad, Malapuram District in Kerala and had been to Jeddah after his Haj pilgrimage and from Jeddah he landed in Bombay on 15.9.87. Then he started by a bus to go to his native place. On 17.9.87 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses, a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign marking were found and they were duly recovered. Further some incriminating documents were also recovered. The gold was valued at Rs.4,64,951 and it was found to be smuggled gold. The appellant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded. He confessed that he was introduced to a person who promised to give him remuneration provided he carries the gold to India and appellant agreed and carried these gold biscuits. Criminal proceedings were initiated.\n2. However, the detaining authority, the Home Secretary to Government of Kerala being satisfied passed the detention order dated 21.9.88 against the appellant with a view to preventing him from smuggling activities. The grounds also were served within time and in the grounds all the above mentioned details are mentioned. In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board, he may address it to the Chairman, Advisory Board and that he can also make a representation to the detaining authority or the Central Government. Questioning the same the present appeal is filed.\n3.  It is submitted that the representation was made on 27.9.88 to the Central Government and it was disposed of on 2.11.88. Therefore there was enormous delay by the Central Government in rejecting the representation and the delay amounts to violation of Article 22(5) of the Constitution of India. The next submission is that though the alleged smug- gling of gold is said to have been taken place on 17.9.87, the detention order was passed on 21.5.88 i.e. after a lapse of eight months and that too it was a solitary instance and because of the delay, the same has become stale and there is no other material to establish any nexus or live connection between the alleged date of smuggling and the date of detention. The next submission is that there was delay in the execution of the detention order which was executed only on 6.8.88 though passed on 21.5.88 and that there is no allegation that the appellant was absconding. It is also submitted that the appellant was not given an effective opportunity to represent his case before the Advisory Board inasmuch as the appellant was not permitted to be represented by an advocate or by his next friend.\n4.  In the counter-affidavit it is stated that the Collector of Customs furnished proposals for the detention of the appellant on 24.3.1988 and the detention order was passed on 21.5.1988 and the appellant was detained on 6.8.1988. The appellant made a representation to the detaining authority on 27.9.1988 and it was rejected by the State Government on 1.10.1988 and the Central Government rejected the same on 2.11.1988. Therefore in the counter-affidavit it is admitted that there is a delay of one month and five days in considering and rejecting the representation by the Central Government.\n5.  It can be seen that so far as the State Government namely the detaining authority is concerned, there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal. Article 22(5) of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.\n6.  It is well-settled that this Clause confers a valuable fight upon the detenu to make a representation and also mandates that the detaining authority should dispose of the same without delay. Therefore the right under this Clause is two-fold, namely that the authority making the order must communicate to the detenu the grounds on which the order has been made, as soon as the order is made and secondly that the detenu must also be afforded the earliest opportunity of making a representation against the order.\n7.  Article 22(5) itself does not say to whom the representation is made or who will consider the representation. By virtue of provisions of the statute under which he has been detained, the appropriate Government is legally obliged to comply with these requirements. It is obligatory on the appropriate Government to consider the detenu's representa- tion separate from the consideration of the detenu's case by the Advisory Board. But what the learned counsel submits is that the Central Government which has the power to revoke the detention order passed by the State authority, is also under legal obligation to dispose of the representation without delay. Learned counsel relied on some of the decisions of this Court. In Khudiram Das v. The State of West Bengal and Others, [1975] 2 SCC 81 1974 Indlaw SC 467 this Court held that one of the basic requirement of clause (5) of Article 22 is that the authority making the order must afford the detenu the earliest opportunity of making a representation against the order and this requirement will be ineffective unless there is a corresponding obligation to consider the representation of the detenu as early as possible. It may not be necessary for us to refer to all those decisions which deal with the delay caused by the appropriate Government in considering the representation inasmuch as in the instant case there is no delay in considering the representation by the State Government which is the detaining authority.\n8.  Section 11 of the COFEPOSA Act, 1974 deals with the revocation of detention orders and under Section 11(b) the Central Government may, at any time, revoke or modify an order made by the State Government. Though strictly speaking the Central Government is not the detaining authority within the meaning of Article 22(5) yet they are under legal obligation to dispose of the representation as early as possible but the question is whether such delay by the Central Government also should be subjected to such a rigorous scrutiny as is done in the case of a delay caused by the appropriate Government. namely the detaining authority.\n9.  In Tara Chand v. The State of Rajasthan, [1980] 2 SCC 321 1980 Indlaw SC 247, this Court held that:\n\"Once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it.if there is inordinate delay in considering the representation that would clearly amount to violation of Article 22(5) so as to render the detention unconstitutional and void.\"\n10.  In Shyam Ambalal Siroya v. Union of India and Ors., [1980] 2 SCR 1078 1980 Indlaw SC 248 it is held that:\n\"The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition ..... It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation.\"\n11.  In Sabir Ahmed v. Union of India and Ors., [1980] 3 SCR 738 1980 Indlaw SC 313 dealing with the power of the revocation of the Central Government it is observed that such power is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government and that the Central Government should consider the same with reasonable expedition and that what is reasonable expedition depends upon the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. It is also observed that it certainly does not cover the delay due to negligence, callous inaction, avoidable red tapism and unduly protracted procrastination.\n12.  In Sabir Ahmed's case as well as in Shyam Ambalal Si- roya's case the representation made by the detenu to the Central Government has been ignored and left unattended for a period of about four months and under those circumstances it was held that there was violation of Article 22(5).\n13.  In Rama Dhondu Borade v.V.K. Saraf, Commissioner of Police and Others, [1989] 3 SCC 173 1989 Indlaw SC 618 the detenu made a representation to the Central Government on 26.9.1988 and the decision of the Central Government rejecting the representation was communicated to the appellant on 31.10.1988. The explanation submitted by the Central Government was not accepted on the ground that it is not satisfactory. In T.A. Abdul Rahman v. State of Kerala and Others, [1989] 4 SCC 741 1989 Indlaw SC 205 there was a delay of 72 days and it was observed that the representation of the detenu has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to.\n14.  Bearing these principles in mind we shall examine whether the Central Government has expeditiously considered the representation or not. We have already noted that the representation was made on 27.9.88 and disposed of by the Central Government on 2.11.88, i.e. within a month and five days. In the counter-affidavit filed on behalf of the Central Government it is stated that the representation dated 27.9.88 was received in the COFEPOSA Section of the Ministry of Finance on 10.10.88 and the representation was in Malayalam. It is also stated that there were some allegations regarding the non- placement of certain documents and non-supply of certain, documents to him. Therefore a copy of the representation was sent to the sponsoring authority i.e. Collector of Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin dated 25.10.88 were received in the COFEPOSA Section on 27.10.88 and that the Additional Secretary examined them and with his comments, they were forwarded to the Minister of State for Revenue on 31.10.88, since 29th and 30th October, 1988 were holidays. The Minister of State for Revenue with this comments forwarded the representation on the same day i.e. 31.10.88 to the Finance Minis- ter. The Finance Minister considered and rejected the representation on 1.11.88 and the file was received in the Office on 2.11.88 and on the same day, a memorandum rejecting the representation was sent to the detenu. From the explanation it can be seen that the representation was considered most expeditiously and there is no \"negligence or callous inaction or avoidable redtapism\". For these reasons we are unable to accept this contention of the learned counsel.\n15.  The next submission of the learned counsel is that the date of search was 17.9.87 and the detention order was passed on 21.5.88 after a long time and therefore there is no nexus between the alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority. The learned counsel submits that there was no live existing connection between the incident and the detention. In Lakshman Khatik v. The State of West Bengal, [1974] 4 SCC 1 1974 Indlaw SC 487 it is observed that mere delay in passing a detention order is not conclusive but the type of grounds given have to be seen and then consider whether such grounds could really weigh with an officer after such delay in coming to the conclusion that it was necessary to detain the detenu. In Rajendrakumar Natvarlal Shah v. State of Gujarat and Others, [1988] 3 SCC 153 1988 Indlaw SC 71. it is held that the mere delay in passing the detention order is not fatal unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the detention. In Abdul Rahman's case seizure of the gold biscuits was on 30.11.86 and the detention order was passed 11 months thereafter. On the ground that there was no satisfactory explanation for this undue, unreasonable and unexplained delay, it was held that the delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.\n16.  In the counter-affidavit, in the instant case, filed on behalf of the detaining authority it is stated that the case records relating to the petitioner were received at the office of the sponsoring authority on 1.2.88 and they were processed in the Office and the show-cause notice under the Customs Act was issued on 9.2.88 and the proposals were sent for COFEPOSA action on 24.3.88 and they were received by the State Government on 2.4.88. The matter was considered by the Screening Committee which met on 28.4.88 and thereafter submitted the proposals to the detaining authority. On 2.5.88 the detaining authority ordered to ascertain the reasons for the delay in sponsoring the case and accordingly the sponsoring authority at Cochin was addressed on 2.5.88. He was reminded on 7.5.88 and 12.5.88. His reply was received on 16.5.88 and thereafter the order was passed on 21.5.88. In our view, the delay has been reasonably explained. The courts have not laid down that on mere such delay the detention has to be struck down. In Yogendra Murari v. State of U.P., [1988] 4 SCC 558 1988 Indlaw SC 802, it is held that:\n\"It is not right to assume that an order of detention has to be mechanically struck down if passed after some delay ..... It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not.\"\n17.  That apart, we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention. the Court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground. In Hemlata Kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647 1981 Indlaw SC 322 it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.\n18.  Yet another ground urged by the learned counsel is that there was delay in arresting the detenu after the detention order was passed and therefore there is no genuineness in the detention order. In the counter-affidavit it is stated that after the detention order was passed, it was sent to the Superintendent of Police, Malappuram on 23.5.88 for immediate execution and they were passed on to Circle Inspector, Malappuram. On 29.6.88, it was reported that the Circle Inspector had made due enquiries but the detenu could not be apprehended. Thereupon a special squad was deputed as per-the directions of the Superintendent of Police and thereafter he was detained on 6.8.88. It is further submit- ted in the counter-affidavit that the delay in execution of the order is caused due to detenu's deliberate attempt to make himself scarce. That apart there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid. In the instant case, the delay, if at all, is only about 2/1/2 months and the explanation offered for the delay is reasonable. The learned counsel, however, relied on Abdul Rahman's case. In that case the detention order was passed on 7.10.87 and the detenu was arrested on 18.1.88. The court found that there was no reasonable explanation for the delay in the counter affidavit at all. This ground was taken into consideration alongwith the other important grounds in quashing the detention. In SK. Serajul v. State of West Bengal, [1975] 2 SCC 78 1974 Indlaw SC 475 it is observed that:\n\"There was delay, both at the stage of passing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction...\nBut this must not be misunderstood to mean that whenever there is delay in making an order of detention or in arresting the detenu pursuant to the order of detention, the sub-. jective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the and that might be sufficient to dispel the inference that its satisfaction was not genuine.\"\n19.  It can therefore be seen that on the mere delay in arresting me detenu; pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case. depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably. As mentioned above, in the instant case, we are satisfied with the explanation for the delay in arresting the detenu. Therefore this contention is also liable to be rejected. For all the above-mentioned reasons, the appeal is dismissed.\nAppeal Dismissed\n"}
+{"id": "u8zF9OHzlw", "title": "", "text": "Ashok Kumar v State of Punjab\nSupreme Court of India\n\n21 September 1976\nCr.A. No. 306 of 1971 [Arising as an appeal by Special Leave from the Judgment and Order Dt. 26 May 1971 of the Punjab and Haryana High Court in Cr.A. 871 of 1970].\nThe Judgment was delivered by: BHAGWATI, J.\n1.  The appellant and his two brothers Kewal Krishan and Dharam Pal were charged before the Sessions Judge, Amritsar for the offence of intentionally causing the death of one Dharam Pal (hereinafter referred to as the deceased). Briefly the prosecution case was, the here we are cutting out the background and the frills of the incident, that on October 20, 1969 at about 1.15 p.m. the deceased and his brother Sain Das were proceeding towards Gali Jatan Chowk when appellant, Kewal Krishan and Dharam Pal came from the direction of their house, each armed with a knife. Dharam Pal raised a lalkara that the deceased should not be allowed to escape and opened the attack by giving a knife blow on the head of the deceased. Kewal Krishan then inflicted a knife blow on the chest of the deceased and the appellant plunged his knife in the left flank of the deceased.\nOn receipt of these injuries the deceased fell down and Dharam Pal gave another knife blow on the chest of the deceased after he had fallen down. This incident was seen by Sain Das who was accompanying the deceased and two other persons, namely, Satpal and Manohar Lal also witnessed the incident. These three persons raised an alarm on which the appellant, Kewal Krishan and Dharam Pal ran away with their knives. The deceased died within a few minutes thereafter. A first information report in regard to the offence was lodged by Sain Das at the police station. The police investigated the offence and ultimately chargesheeted the appellant, Kewal Krishan and Dharam Pal for various offences arising out of the incident.\n2.  There were three eyewitnesses to the incident, namely, Sain Das, Satpal and Manohar Lal, but out of them only two were examined by the prosecution, namely, Sain Das and Satpal and Manohar Lal was given up as he was won over by the other side. Sain Das Satpal deposed to the incident as narrated above and the learned Sessions Judge, accepting their evidence in its entirety, held that the prosecution case was sufficiently established against the appellant, Kewal Krishan and Dharam Pal and convicted the appellant u/s. 302 of the Indian Penal Code, 1860 and sentenced him to life imprisonment and so far as Kewal Krishan and Dharam Pal were concerned, he convicted u/s. 323 read with S. 34 and sentenced each of them to suffer 10 years' rigorous imprisonment and to pay a fine of Rs. 1000. Kewal Krishan and Dharam Pal were also convicted u/s. 324 and sentenced to two years' rigorous imprisonment and the appellant was convicted u/s. 324 read with S. 34 and sentenced to one year's rigorous imprisonment. The sentences of imprisonment were directed to run concurrently.\n3.  The appellant, Kewal Krishan and Dharam Pal preferred an appeal to the High Court against the conviction and sentence recorded against them. The High Court felt that there was inconsistency between the medical evidence in regard to the injuries caused to the deceased and the oral evidence in regard to the role played by Dharam Pal in inflicting the injuries and taking the view that there was scope for reasonable doubt, the High Court gave the benefit of doubt to Dharam Pal and acquitted him.\nHowever, so far as the appellant and Kewal Krishan were concerned, the High Court confirmed their convictions and since the conviction of the appellant was under Section 302, the High Court maintained the sentence of life imprisonment, but in regard to Kewal Krishan, the High Court reduced the sentence of imprisonment from ten years to two years' rigorous imprisonment. The appellant and Kewal Krishan both preferred a petition for special leave to this Court. The appellant succeeded in obtaining special leave, but the petition of Kewal Krishan was rejected. The present appeal is in the circumstances directly only against the order of conviction and sentence passed against the appellant.\n4.  This being an appeal by special leave, it would not be right for this Court to embark on a reappreciation of the evidence and to interfere with the concurrent view taken in regard to the evidence by the learned Sessions Judge and the High Court. We must proceed on the basis that the appellant, Kewal Krishan and one other person whose identity with Dharam Pal could not be said to be established, attacked the deceased and the unidentified assailant gave a knife blow on the head of the deceased, Kewal Krishan then inflicted a knife blow on the chest of the deceased and following upon this, the appellant gave a knife blow in the left flank of the deceased and lastly, after the deceased had fallen down, the unidentified assailant gave a knife blow on the chest of the deceased. The only knife blow attributed to the appellant was a knife blow on the left flank of the deceased. Now, if we turn to the evidence given by Dr. Narender Mohan (PW 3), who performed the post-mortem examination on the dead body of the deceased, we find that six injuries were received by the deceased. Injuries 5 and 6 were merely abrasions and we need not consider them, because they could have been caused by falling on the ground. Injury 1 was an incised wound on the right side of the head above the right ear and this was obviously an injury caused by knife blow given by the assailant who was wrongly identified as Dharam Pal. Injury 2 was an incised wound in the epigastric region on the left side just away from the middle.\nThis was an injury on the left side could well be the injury inflicted by the appellant. If this was the injury caused by the appellant, it would obviously be impossible to convict him of the offence under Section 302, since according to the medical evidence, it was a simple injury and not responsible for the death of the deceased. But the State contended that it was not injury 2 which was inflicted by the appellant but it was injury 3. Injury 3 was an incised stab wound on the outer side of the left side of the chest 6\n\"below the axilla and it was admittedly the fatal injury which caused the death of the deceased. Dr. Narender Mohan deposed that injury 3 was sufficient in the ordinary course of nature to cause death and it was this injury which was responsible for the death of the deceased. There is, however, nothing to show that it was the appellant who inflicted injury 3. Both injuries 2 and 3 are on the left side, one in the epigastric region and the other 6\"\nbelow the axilla and it is not possible to say which of these two injuries was caused by the appellant. The only evidence given by the eyewitnesses was that the appellant gave a knife blow on the left flank of the deceased and this evidence would be compatible with either of the two injuries 2 and 3. Moreover, it appears from the dimensions of injuries 3 and 4 - both are 1/3\"x 1/4\"- that these two injuries must have been caused by the same weapon and the same person must be the author of both these injuries. Now the only assailant, who, according to the prosecution evidence, inflicted two injuries was the unidentified assailant and hence injury 3 would more properly be attributable to him and not to the appellant. It is, therefore, not possible to say that the prosecution has established beyond reasonable doubt that injury 3 which was the fatal injury, was caused by the appellant. The possibility cannot be ruled out that it was injury 2 which was caused by him and hence the conviction of the appellant for the offence u/s. 302 cannot be sustained and for the individual injury caused by him, he can be convicted only u/s. 324.\n5.  The appellant would also be constructively guilty for the other injuries caused to the deceased, since it is apparent from the prosecution evidence that the appellant, Kewal Krishan and the unidentified assailant attacked the deceased in pursuance of a common intention shared by all of them. The common intention, according to the learned Sessions Judge and the High Court, was to cause grievous hurt to the deceased and it was on this footing that the learned Sessions Judge and the High Court convicted Kewal Krishan of the offence u/s. 326 read with S. 34. We very much doubt whether the learned Sessions Judge and the High Court were right in taking the view that the common intention of the three assailants was merely to cause grievous hurt to the deceased.\n6. As many as four injuries were inflicted on the deceased by knives and out of them, one was on the head and three were on the chest. Having regard to the weapons used by the three assailants, the number of injuries caused by them and the vital parts of the body on which the injuries were inflicted, it does appear that the common intention of the assailants was to cause the death of the deceased and Kewal Krishan could, therefore, have been convicted u/s. 302 read with S. 34.\nBut unfortunately the State has not been vigilant in enforcement of the criminal law and regrettably it has not preferred an appeal against the acquittal of Kewal Krishan u/s. 302 read with Section 34, with the result that his conviction u/s. 326 read with S. 34 must stand. And if that be so, consistency compels us to reach the conclusion that the appellant also must, on the same basis, be convicted u/s. 326 read with S. 34 instead of S. 302 read with S. 34.\n7.  We accordingly allow the appeal and convert the conviction of the appellant from one u/s. 302 to that u/s. 326 read with S. 34. Kewal Krishan was also conviction u/s. 326 read with Section 34, but surprisingly enough the High Court let him off with a ridiculously light sentence of two years' rigorous imprisonment. It is difficult to understand how the High Court could take such an absurdly lenient view in the case of Kewal Krishan when the assault in which Kewal Krishan participated resulted in the death of the deceased. But the case of Kewal Krishan not being before us, we cannot do anything about it. We can only try to ensure that a proper sentence is imposed on the appellant. We are told that the appellant has already been in jail for a period of about 6 years and ten months. That, in our opinion, would be sufficient punishment to him and we accordingly sentence him to imprisonment for the period already undergone by him. The appellant is on bail since the last month or so and he need not surrender to his bail. The bail bonds will stand cancelled.\nAppeal allowed.\n"}
+{"id": "ndZ4szi6sE", "title": "", "text": "Chinta Pulla Reddy and Others v State of Andhra Pradesh\nSupreme Court of India\n\n30 March 1993\nCr.A. No. 817 of 1985, (From the Judgment and Order Dt. 15 November 1984 of the Andhra Pradesh High Court in Cr. A. No. 100 of 1983)\nThe Judgment was delivered by: ANAND, J.\n1.  For an occurrence which took place on the night intervening May 31 and June 1, 1982, at about 1.00 a. m., in which one Iragana Gurava Reddy was murdered, six persons, namely, Dagumati Venkata Subba Reddy (A-1); Chinta Pulla Reddy (A-2); Balamreddi Pulla Reddy (A-3); Gaddam Pulla Reddy (A-4); Gaddam Panchala Reddy (A-5) and Bade Rami Reddi (A-6) were challaned and ultimately sent up for trial before the Additional Sessions Judge, Nellore. The first charge against the accused was under Section 148 IPC. They were all convicted of the said charge and each of the each of the accused was sentenced to two years, R. I. The second charge against A-1 was for an offence under Section 302 IPC. He was convicted for the said offence and sentenced to suffer imprisonment for life. The third charge was for an offence under Sections 302/149 IPC against remaining accused persons. The conviction was recorded for the offence under Sections 302/149 IPC against A-2 to A-6 and each one of them was sentenced to suffer imprisonment for life.\n2.   Against their conviction and sentence all the accused-convicts appealed to the High Court. The High Court acquitted A-3 and A-6, but maintained the conviction and sentence of A-1 for the offence under Section 302 IPC and altering the conviction of A-2, A-4 and A-5 from the one under Sections 302/149 IPC to the one under Section 302/34 IPC maintained the sentence of life imprisonment. Conviction and sentence for the offence under Section 148 IPC was, however, set aside. After the judgment of the High Court was delivered, it appears that A-1 died. A-2, A-4 and A-5 have filed this appeal, on special leave being granted.\n3.  Though generally speaking this Court does not reappreciate the evidence in an appeal, on special leave being granted, under Article 136 of the Constitution of India, 1950 where two courts have appreciated the evidence and recorded concurrent findings, but since the High Court acquitted A-3 and A-6, we have, with the assistance of learned counsel for the parties, ourselves appreciated the material evidence in the case, with a view to determine whether the conviction and sentence recorded against the three appellants is justified or not.\n4.  The first information report in this case, Ex. P-1, was lodged at 7.30 a. m. by PW 1, son of the deceased. It was scribed by LW-9, who however was not examined at the trial. In the first information report, besides A-1 to A-6, thirty other persons A-7 to A-36, with their parentage, were also named as accused persons. During the investigation, however, PW 1 in his statement recorded under Section 161 CrPC by the investigating officer, categorically asserted that he had not told the scribe that 30 persons A-7 to A-36, apart from A-1 to A-6 had also come armed to the house of the deceased at the time of occurrence. Even at the trial, PW 1 mentioned that apart from A-1 to A-6, no other person was mentioned as an accused by him to the police. The statements of other witnesses recorded under Section 161 CrPC also implicated only A-1 to A-6 in the crime. The investigating officer, therefore, had challaned only A-1 to A-6 and sent them for trial.\n5.  It is the prosecution case, that earlier in the evening of May 31, 1982, Seshamma, PW 8 was assaulted by some persons, belonging to the party of A-1 in front of the house of A-1 and on learning about the assault, the deceased along with his wife PW 4, went to the house of A-1 where A-2 was also present to reprimand them for assaulting a lady. A-1 and A-2 took objection to the reprimand and threatened the deceased and PW 4 that they would seen \"the end of the deceased\". The deceased and his wife were told to leave and they went back to their house. Regarding the incident relating to the assault on PW 8, a complaint was lodged with the Police and a constable PW 9 was deputed to go to the village to see that no further occurrence takes place in view of two factions in the village.\n6.  On the night of May 31, 1982, the wife of the deceased, PW 4, went to the house of her son, PW 1 and told him as to what had happened in the evening and the threat which had been administered to them by A-1 and A-2. She asked PW 1 to go to the house of his brother PW 2 and sleep there along with PW 2 as the deceased was staying with PW 2 at that time. PW 1 obeyed the command of his mother and went to the house of PW 2 and slept there leaving his mother PW 4 to stay in his house. Both PW 1 and PW 2 slept for the night near the cot of their father. A hurricane lantern was burning and both PWs 1 and 2 also had torchlights with them when they went to bed.\n7.   On hearing the cry of their father, at about 1.00 a. m., PW 1 and PW 2 as also PW 3, wife of PW 2 and the daughter-in-law of the deceased who was sleeping inside the house woke up and saw six accused present there. They found A-1 and A-2 standing near the cot towards the head of the deceased, while A-3 to A-6 were standing on the southern side of that cot. All the accused were allegedly armed. After saying as to what they were waiting for, A-1 is alleged to have stabbed the deceased, with a knife which he was carrying, twice near his chest. None of the other accused, however, caused any injury to the deceased. The witnesses, PW 1, PW 2 and PW 3 saw and identified the accused in the light of the hurricane lantern and by flashing torchlights. After threatening the prosecution witnesses, all the accused left the place and went away. PW 1 sent information to his mother about the injuries caused to the deceased and himself went to the house of Sudhakara Rao, LW-9 and asked him to scribe the report, Ex P-1 which he presented to the investigating officer, PW 13 at about 7.30 a. m.\n8.  The Inspector of Police, PW 14 after receipt of the FIR along with PW 13 and some constables proceeded to the spot and conducted the investigation. Various articles were taken into possession from the place of occurrence, including the blood-stained clothes of the deceased and blood-stained earth. The deceased had in the meanwhile succumbed to the injuries. PW 4 and others had also arrived and were present at that place. Inquest proceedings were conducted and PWs 1 to 4 were examined by the investigating officer. The dead body of the deceased was then sent for post-mortem examination. PW 5 conducted the post-mortem examination. He found two stab injuries besides three other injuries on the dead body of the deceased. Both, injuries 1 and 2, which were found to be the stab wounds in the chest had caused damage to the vital organs of the deceased.\n9.  Accordingly to the opinion of the doctor PW 5, the deceased died as a result of shock and hemorrhage on account of the injuries to the lung, liver and heart, which were referable to injuries 1 and 2 allegedly caused by the two stab wounds inflicted by A-1. The investigating officer during the investigation examined some other witnesses including PWs 6, 7 and 9 and ultimately made efforts to arrest the accused persons. They were, however, found absconding. The challan was filed without any delay and at the trial, the prosecution examined 14 witnesses to connect the accused A-1 to A-6 with the crime. All the accused in their statement under Section 313 CrPC denied the occurrence and pleaded false implication due to fictional rivalry in the village. A-1 and A-2 pleaded alibi and in support of the plea of alibi examined DW-2, DW-3, DW-4 and DW-5.\n10.  The High Court after consideration of the evidence on the record, as already noticed, convicted A-2, A-4 and A-5 and acquitted A-3 and A-6. The High Court disbelieved the defence witnesses and rejected the plea of alibi set up by A-1 and A-2. For acquitting A-3 and A-6, the High Court found that since on PW 2's own showing he had told the police that he had not mentioned the names of A-4 to A-6 to his mother as the assailants of his father and PW 9, constable Nasthanaiah, had deposed that PW 2 had informed him \"that A-1, A-2 and four others stabbed his father and went away\", it would not be safe to convict A-3 and A-6 and giving them benefit of doubt acquitted them.\n11.  Mr.  Lalit, learned senior counsel appearing for the appellants has submitted that the grounds on which benefit of doubt was given to A-3 and A-6 were also available insofar as A-4 and A-5 are concerned and the High Court has not given any distinguishing feature insofar as they are concerned and, therefore, their conviction cannot be sustained and they also deserve to be acquitted like A-3 and A-6. A careful examination of the evidence of PWs 1, 2, 3 and 9 would go to show that they specifically implicated only A-1 and A-2 as the persons present together near the cot.\nAccording to PW 2:\n\"I told the police that I told my mother and my brother Iragana Ramanareddy and others that A-1 to A-3 were the assailants of my father\".\nAccordingly to PW 9:\n\"the constable who was present in the village. At about 1.00 a. m. (in the night), we heard cries from the western direction. We went to the house of PW 2 and found the deceased lying dead with bleeding injuries on a cot. PW 2 informed us, that A-1, A-2 and four others stabbed his father and went away. When we asked PW 2 to give a report, he stated that his brother PW 1 left for Atmakur in order to give a report. Thereafter, we went to the house of A-1 and A-2, but they were not in their houses.\"PW 1 in his statement categorically stated that\" I did not tell the scribe of Ex. P-1 that A-2, A-3, A-4, A-5, A-6 stabbed indiscriminately my father with the knives in their hands\"\n12.  Referring to the earlier incident of the evening, when his father and mother had gone to the house of A-1, PW 1 stated that A-1 and A-2 on being reprimanded had threatened my father with dire consequences. PW 4 the widow of the deceased who had accompanied her husband to the house of A-1 in the evening deposed:\n\"I and my husband went to the house of A-1 and questioned A-1 and A-2 who was also present there as to why Seshamma was beaten by their party people. Thereupon, A-1 and A-2 took objection for questioning them and stated that they would see to his deceased fate.\"\n13.   Thus it was, according to the prosecution case, A-1 and A-2 who alone had administered the threat and who had taken strong exception to the reprimand by the deceased. A-4 and A-5 did not figure in the earlier episode, which provided the immediate motive, for the commission of the crime.\n14.  The evidence led by the prosecution about the actual assault during the night on the deceased also specifically implicated A-1 and A-2 only.\nAccordingly to PW 1:\n\"I saw only A-1 stabbing my father. I did not see any other accused stab my father. A-1 stabbed my father on the right chest near the nipple and below the nipple.\"\n15.   After stating that all the six accused had come armed, the witness admitted in the cross-examination that 'I and my brother did not address A-1 and A-2 why they had come to commit that heinous crime.\" This part of his testimony is also supported by PW 2.\n16.  Accordingly to PW 3, the wife of PW 2, she had seen A-1 and A-2 standing together near the head of the cot. As already noticed, the first version given by PW 2 to the constable PW 9 who reached the houses of PW 2 on hearing the cries, PW 2 had informed him that \"A-1 and A-2 and four others\" had stabbed his father. After the occurrence, after PW 1 had left the house for lodging the report, the villagers along with PW 9 also only went to the houses of A-1 and A-2 to search for them and they did not go in search for A-4 and A-5.\n17.  According to the medical evidence, only two stab injuries were found on the deceased and according to the eyewitnesses both the injuries had been caused by A-1. Keeping in view the evidence relating to the threat administered in the evening and the statement which PW 2, the son of the deceased made to PW 9 immediately after the occurrence, it appears to us that the prosecution has not been able to establish beyond a reasonable doubt the participation of A-4 and A-5 in the crime. In our opinion, the case against A-4 and A-5 has not been established beyond a reasonable doubt and they are therefore entitled to the benefit of doubt.\n18.  Coming now to the case of A-2. We are unable to agree with Mr. Lalit that his participation in the crime has not been established. It is the consistent case of the prosecution that both A-2 and A-1 had administered the threat in the evening to the deceased and his wife when they had gone to reprimand A-1 for the assault on PW 8. They, therefore, had the immediate cause and provocation for the assault on the deceased in furtherance of the threat administered by them earlier.\n19.   The testimony of PW 1, PW 2 and PW 3 who are the natural witnesses and are the eyewitnesses is consistent insofar as the presence of A-1 and A-2 at the time of occurrence is concerned. They have clearly deposed about the manner in which A-1 and A-2 were standing towards the head of the cot armed with knives as also how A-1 stabbed the deceased twice on his chest. The witnesses knew both A-1 and A-2 and had identified them clearly. Their testimony leaves no manner of doubt to hold that A-2 along with A-1 had come armed with knives to the house of the deceased and both were present at the middle of the night near the head of the cot on which the deceased was lying when A-1 stabbed him twice in the chest and thereafter left together. Both A-1 and A-2 had thus, shared the common intention of causing the death of the deceased, as according to the medical evidence, the two stab injuries inflicted on the deceased on his chest were sufficient in the ordinary course of nature of cause death.\n20.  The plea of alibi put up by A-1 and A-2 need a notice only to be rejected. The testimony of the defence witnesses DW 2 to DW 5 does not inspire any confidence. In the cross-examination, the story given out by them has been successfully shattered. We are in agreement with High Court that the plea of alibi is false and we are of the view that the same was rightly rejected by the courts below. Both A-1 and A-2 were named as the assailants at the earliest point of time by PW 2 to constable PW 9. Since, A-1 and A-2 had been named as the assailants by the eyewitnesses, constable PW 9 and others had rushed to the house of A-1 and A-2 but they had absconded.\n21.   A careful analysis and appraisal of the evidence on the record shows that A-2 was present on the night of the occurrence with a knife along with A-1, who was also armed with a knife, and had shared the common intention with A-1 of causing bodily injuries to the deceased which were sufficient in the ordinary course of nature to cause the death of the deceased. Section 34 IPC is, therefore, clearly attracted to the case of A-2, even though he did not by himself cause any specific injury to the deceased. The High Court had rightly convicted both A-1 (since dead) and A-2 for the offence of murder of the deceased. The conviction of A-2 for an offence under Section 302/34 IPC is, therefore, well merited and the sentence of imprisonment for life imposed upon him is justified.\n22.  As a result of the above discussion, we give benefit of doubt to the two appellants, Gaddam Pulla Reddy (A-4) and Gaddam Panchala Reddy (A-5) and setting aside their conviction acquit them of the charges against them. We, however, uphold and maintain the conviction of A-2, Chinta Pulla Reddy, for the offence under Sections 302/34 IPC and also the sentence of life imprisonment imposed upon him by the High Court.\n23.  As a result, while the appeal of A-4 and A-5 succeeds and is allowed, the appeal of A-2 fails and is dismissed. A-2 is on bail. His bail bonds are cancelled and he is directed to be taken into custody to suffer the remaining period of his sentence.\nAppeals disposed of.\n"}
+{"id": "6jOSL0IZbc", "title": "", "text": "State of Uttar Pradesh v Banne @ Baijnath and Others\nSupreme Court of India\n\n10 February 2009\nCr.A. No. 1100 of 2001\nThe Order of the Court was as follows:\n1.  This appeal is directed against the judgment of the High Court of Judicature at Allahabad delivered in Criminal Appeal No.1358 of 1980 dated 1st February, 2000 by which the High Court had acquitted all the five accused who were convicted and sentenced to undergo six months R.I. u/s. 147 I.P.C., three years R.I. under Section 307/149 I.P.C. three months R.I. under Section 323/149 and to imprisonment for life u/s. 302 read with S. 149 I.P.C. by the trial court.\n2.  Brief facts which are necessary to dispose of this appeal are recapitulated as under:\n3. Members of the accused and complainant party are close relatives. In order to properly appreciate the relationship, the pedigree of the family is reproduced:\n4. On 13.11.1977 a violent incident is alleged to have taken place between the accused and members of the complainant party, namely, Moti, Gharroo and his sons over share in plot No.165/2 measuring 1.88 decimals situated in Village Shivpurwa, P.S. Manduadih, District Varanasi. It is admitted case of the parties that Chhakkoo and his brother Panchu were original tenure holders of the said plot along with some other plots.\n5.  In a suit u/s. 49 of the U.P. Tenancy Act, Moti, Gharroo and Lalloo obtained one half share in the joint Khata while the other half share went to descendants of Panchu, namely, Vinayak and others. Lalloo, Moti and Gharroo have since been recorded as co-tenure holders of the aforesaid plot along with other plots.\n6.  The dispute about the share between Lalloo on the one hand and Gharroo and Moti on the other started in the year 1965. Lalloo claimed one half share while according to Moti and Gharroo all the three daughters' sons Lalloo, Moti and Gharroo had equal share. Lalloo took the lead in asserting his claim by executing a sale deed in respect of 5 decimals of plot No.251/2 area 10 decimals in favour of Shivlal on 21.1.1965. He executed second sale deed in respect of 6 decimals of plot No.205/2 measuring 12 decimals in favour of Nand Lal and Lalloo sons of Dhanesh on 20.12.65. Moti deposited ten times land revenue of his one-third share in the disputed joint Khata comprising of plots Nos.109, 165/2, 182/2, 205/2 and 251/2 and filed a suit for division of holdings u/s. 138 of the Zamindari Abolition and Land Reforms Act for 1/3rd share on 6.1.66. The suit was decreed ex parte on 10.1.1970 and mutation of this order was made in Khatauni 1376 F to 1378F. The ex-parte decree was, however, set aside on the application of Lalloo, father of the accused persons, after setting aside the ex parte decree on 19.2.1973. Thereafter the suit was proceeded in the revenue court. It was dismissed in default on 27.7.1977. The suit was ultimately restored on 21.2.1979 on the application of Moti and decided in his favour on 25.2.80 against which the appeal has been filed by the accused persons which is still pending.\n7.  After the death of Lalloo, his five sons succeeded to the property. According to the prosecution, the disputed plot No.165/2 is divided into two portions. One-third portion towards north has been in possession of the accused persons since the time of their father Lalloo while the two- third portion towards south is in the joint cultivation of Moti and Gharroo. There is a Merh between the portion in the occupation of the accused and that in the possession of Moti and Gharroo.\n8.  On 13.11.1977 at about 7.00 a.m. Tilakdhari PW.1 and his father Gharroo went to their portion of the plot in dispute along with the bullocks to plough the land. Immediately after they had started ploughing, all the accused persons arrived there. Accused Banne alias Baijnath and Binne alias Viswanath were armed with iron rods while the other accused Nanhe alias Narain, Bhola and Ramji were armed with sticks. The accused persons asked Tilakdhari, PW1 and his father to get out of the field. They refused to do so saying that the said portion of the field has been in their possession for a long time and that they would continue to plough it. Thereupon the accused Banne alias Baijnath instigated other accused persons to assault Tilakdhari and his father and drive them away, whereupon Gharroo ran towards the house of Khatkhat in the neighbourhood. Hearing the hue and cry raised on the spot, Amardhari, Shangoo and Jagga arrived at the spot.\n9.  The accused Ramji gave a lathi blow to Amardhari who consequently fell down because of the impact of blow. Banne alias Baijnath gave a thrust with the iron rod in the abdomen which punctured the abdomen of Amardhari. The intestine of Amardhari protruded out through the wound and he also fell down. Sahangoo was attacked by Ramji, Bhole and Nanhe with lathis. He received lacerated wounds on his head. He ran towards the house of Sahdeo and fell down at his doorstep. Tilakdhari PW1 was also given blows by the accused persons. The case of the accused persons is that the members of the complainant party tried to forcibly dispossess them and in their right of private defence some injuries were caused to the members of the complainant party.\n10.  Tilakdhari PW1 dictated a written report Ex. Ka. 1 to Sitaram on the spot. He took Sahangoo, Amardhari to P.S. Manduadih where he submitted the written report Ex. Ka.1, in terms of which chick FIR Ex. Ka. 13 was prepared and a case was registered in the general diary. Sahangoo, Amardhari and Tilakdhari were escorted to S.S.P.G. Hospital, Varanasi, where they were examined for their injuries by Dr. A.K. Dwivedi at 8.45 A.M., 9.00 A.M. and 12.00 noon respectively. Sahangoo succumbed to the injuries at 5.45 P.M. on the same day in S.S.P.G. Hospital, Varanasi and died. Inquest of the dead body was performed by Ram Chandra Pandey S.I. on 14.11.1977 at 8.00 A.M. Dr. Narsingh Sharma, Medical Officer Incharge S.V.M.V. Government Hospital, Varanasi conducted post-mortem examination on the dead body of Sahangoo at the mortuary on 14.11.1977 at 2.30 P.M. He found the following ante- mortem injuries on his dead body.\n11.  Lacerated wound 6= cm x = bone deep on the right side crown of head, 7 cm above right eyebrow.\n12.  Contusion 10 cm x 4 cm on the back of right forearm, 2 cm above wrist joint, right Ulna bone fractured.\n13.  Abrasion 4 cm x = cm on the outer aspect of upper part of right thigh.\n14.  Abrasion 2-= cm x 2 cm on the right shoulder top.\n15.  Lacerated wound 2 cm x < cm muscle deep on the inner aspect left dorsum of foot, 2 cm above the root of left big toe.\n16.  On internal examination, he found the right frontal and temporal bones fractured and the right fronto-parietal suture separated, brain was congested. Middle cranial fossa was also fractured. Amardhari received injuries and was hospitalised for two and a half months. The prosecution examined 10 witnesses in support of its case. The trial court though noted the injuries which were received by the accused persons, but the prosecution has not explained those injuries on the body of the accused. It is pertinent to mention that Dr. A.K. Dwivedi PW.8 examined accused Vishwanath alias Binney and found the following injuries on him:\n17.  Abrasion 1 cm x 1 cm right parietal, 12 cm from right ear.\nAbrasion 2 cm x 2 cm back of left knee.\n18. Dr. A.K. Dwivedi PW.8 also examined the injuries of accused Narain alias Nanhey and found the following injuries\n19.  Lacerated wound 4 cm x = cm x bone deep on right parietal, 6 cm above right ear.\n20.  Lacerated wound 2 cm x = x bone right ring finger back.\n21. The same Doctor also examined accused Ramji alias Raman on the same day and found the following injury.:\n22.  Lacerated wound 4 cm x 1/2 cm x bone on left side parietal 14 cm from left ear.\n23. Dr. R.K. Singh, DW.1 medically examined accused Bhola and found the following injuries:-\n24.  Contusion 5 cm x 4 cm on the dorsum of left palm with tenderness at the base of II metacarpal bone, skin over it bluish pink. Restricted movement of left index finger. X-ray of palm was advised.\n25.  Contusion 3 cm x 2 cm on the left side of neck 6 cm below the left ear, skin bluish pink.\n26.  Contusion 6 cm x 1- = cm on the back towards right side 6 cm below the right scapula.\n27.  Contusion 1 cm x 1 cm right side chest over 7th rib below the right nipple.\n28.  Abrasion 1 cm x 1 cm on the back towards right side 8 cm. below the right scapula.\n29.  The trial court, on appraisal of evidence, came to the findings that at the time of incident the prosecution party was in peaceful possession of the land in question and with the dismissal of suit the accused persons came there forming an unlawful assembly to extend their possession over half share and interfered in the peaceful possession of Gharroo and Moti in the southern portion of the plot. They first assaulted and caused injuries to the deceased and other victims on prosecution side and injuries on the defence side were caused during the course of incident and according to the learned Sessions Judge, the defence version of the incident was false and accordingly, the learned Sessions Judge convicted and sentenced the appellants under various counts as stated in the earlier part of the judgment.\n30.  The accused-appellants, aggrieved by the judgment of the Sessions Judge, filed an appeal before the High Court. The High Court re-examined the entire evidence and came to a different conclusion. The main grievance which has been articulated by the High Court is that though the injuries received by the accused persons were noted by the trial court, there was no explanation by the prosecution about those injuries. On careful examination of the injuries caused to the accused the High Court observed that injuries on them (accused persons) were not superficial or minor or self-inflicted. Therefore, the absence of any explanation by the prosecution about the injuries received by the accused persons creates serious doubt about the credibility of the entire prosecution version. According to the High Court, it was the bounden duty and obligation of the prosecution to have given explanation about the injuries of the accused persons.\n31.  The High Court, on examination of the evidence on record, came to the conclusion that it is difficult to hold that the complainant party was in settled and peaceful possession of 2/3 share of the plot in question on the date of incident and there seems to be weight in the defence argument that the accused party was in possession to the extent of 1/2 share and in any view of the matter there was a bona fide dispute between the parties regarding their shares and extent of possession. This finding gives twist to the entire prosecution version and it is not clear as to who were in fact the aggressors and whether the injuries caused by the accused persons to the complainant party were in fact caused in their right of their private defence or not.\n32.  The High Court also came to the conclusion that PW.3 Sahadeo and PW.4 Narayan cannot be said to be totally independent witnesses as the defence had filed documentary evidence to show that Lalloo, the father of the accused persons had lodged an FIR against these witnesses for an offence u/s. 308 IPC. These witnesses were, therefore, also somewhat inimical to the accused persons and their evidence cannot be given due weight especially with regard to the use of Lathi and Danda by the prosecution witnesses, particularly when such an important fact had not been stated by them in their statements recorded u/s. 161 Cr.P.C. and the statements being contradictory to each other with regard to the use of Danda by the prosecution witness. The High Court arrived at the conclusion that the injuries of the accused persons have not been satisfactorily explained.\n33.  The High Court in the impugned judgment arrived at a definite finding that it is highly doubtful that the complainant party was in exclusive possession of the disputed land at the relevant time and witnesses Sahadeo PW3 and Narayan PW4 cannot be considered to be independent witnesses. A serious doubt has been cast on the credibility of the prosecution version. The High Court allowed the appeal and set aside the conviction and sentence of the appellants and they were acquitted of the offences charged for. The State of U.P., aggrieved by the impugned judgment of the High Court, has filed the present appeal by way of special leave petition u/art. 136 of the Constitution. The scope of interference u/art. 136 is rather limited. It is settled legal position which has been crystallized in a number of judgments that if the view taken by the High Court is plausible or possible, then it would not be proper for this court to interfere with an order of acquittal.\n34.  This court, in a recent judgment in Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 2008 Indlaw SC 1197 considered earlier cases and laid down that the appellate court should, therefore, reverse an acquittal only when it has \"very substantial and compelling reasons\". In Tulsiram Kanu v. The State, AIR 1954 SC 1 1951 Indlaw SC 75, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present.\n35. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.\n36.  In Lekha Yadav v. State of Bihar (1973) 2 SCC 424 1973 Indlaw SC 436, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:\n\"The different phraseology used in the judgments of this Court such as-\n(a) substantial and compelling reasons:\n(b) good and sufficiently cogent reasons;\n(c) strong reasons. are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified.\"\n37.  In Bishan Singh & Others v. The State of Punjab (1974) 3 SCC 288 1973 Indlaw SC 425, Justice Khanna speaking for the Court provided the legal position:\n\"It is well settled that the High Court in appeal u/s. 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; & (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.\"\n38.  In Umedbhai Jadavbhai v. The State of Gujarat (1978) 1 SCC 228 1977 Indlaw SC 138, the Court observed thus:\n\"In an appeal against acquittal, the High Court would not ordinarily interfere with the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice.\"\n39.  In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361 1978 Indlaw SC 112, the Court observed thus:\n\"It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. \"A reasonable doubt\", it has been remarked, \"does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.]\"\n{emphasis supplied}\n40.  In Tota Singh & Another v. State of Punjab (1987) 2 SCC 529 1987 Indlaw SC 28143, the Court reiterated the same principle in the following words:\n\"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.\"\n(emphasis supplied)\n41.  This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State of J & K, (1997) 7 SCC 677 1997 Indlaw SC 1460, the Court observed as under:\n\"that there must be \"sufficient and compelling reasons\" or \"good and sufficiently cogent reasons\" for the appellate court to alter an order of acquittal to one of conviction........\"\n42.  In Sambasivan & Others v. State of Kerala (1998) 5 SCC 412 1998 Indlaw SC 809, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:\nThe principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.\"\n43.  In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85 2002 Indlaw SC 1611, the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under:-\n\"The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.\"\n44.  In Harijana Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad (2002) 6 SCC 470 2002 Indlaw SC 1635, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:\n\"The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.\nIn our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.\nDoubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.\"\n45.  In C. Antony v. K.G. Raghavan Nair, (2003) 1 SCC 1 2002 Indlaw SC 1369 had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:\n\"This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.\"\n46.  In State of Karnataka v. K. Gopalkrishna, (2005) 9 SCC 291 2005 Indlaw SC 78, while dealing with an appeal against acquittal, the Court observed:\n\"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.\"\n47.  In The State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 2007 Indlaw SC 182, this Court relied on the judgment in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 2003 Indlaw SC 630 and observed as under:\n\"Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. ... The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.\"\nThe Court further held as follows:\n\"it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.\"\n48.  In Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415 2007 Indlaw SC 121, this Court held:\n\"An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.\nThe Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.\nVarious expressions, such as, \"substantial and compelling reasons\", \"good and sufficient grounds\", \"very strong circumstances\", \"distorted conclusions\", \"glaring mistakes\", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of \"flourishes of language\" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.\nAn appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.\nIf two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\"\nThe following principles emerge from the aforementioned cases.\n(1). The appellate court may review the evidence in appeals against acquittal u/ss. 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.\n(2). The accused is presumed to be innocent until proved guilty. The accused possessed this presumption when he was before the trial court. The High court's acquittal bolsters the presumption that he is innocent.\n(3). There must also be substantial and compelling reasons for reversing an order of acquittal.\n49. This court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and compelling reasons to discard the High Court decision.\n50.  Following are some of the circumstances in which perhaps this court would be justified in interfering with the judgment of the High Court, but these are illustrative not exhaustive.\n(i) The High court's decision is based on totally erroneous view of law by ignoring the settled legal position;\n(ii) The High court's conclusions are contrary to evidence and documents on record.\n(iii) The entire approach of the High court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;\n(iv) The High court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;\n(v) This Court must always give proper weight and consideration to the findings of the High Court.\n(vi) This court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.\n51.  When we apply the above mentioned parameters laid down by a number of cases decided by this court to the facts of this case, then conclusions become irresistible and no interference is warranted by this court.\n52. Consequently, the appeal filed by the State of UP being devoid of any merits, is accordingly dismissed.\nAppeal dismissed.\n"}
+{"id": "XRvj7uff0L", "title": "", "text": "Ghurey Lal v State of Uttar Pradesh\nSupreme Court of India\n\n30 July 2008\nCr.A. No.155 of 2006\nThe Judgment was delivered by: Dalveer Bhandari, J.\n1.  This appeal is directed against the judgment of the High Court of Allahabad dated 11th November, 2005 passed in Criminal Appeal No. 365 of 1981.\n2.  This is a murder case in which the trial court acquitted the accused. The High Court reversed the trial court's decision, finding the accused guilty. In doing so, the appellate court failed to give proper weight to the views of the trial court as to credibility of witnesses, thereby ignoring the standards by which the appellate courts consider appeals against acquittals.\n3.  We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. An overriding theme emanates from the law on appeals against acquittals. The appellate court is given wide powers to review the evidence to come to its own conclusions. But this power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court's acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate court should, therefore, reverse an acquittal only when it has \"very substantial and compelling reasons.\"\n4.  In giving our reasons for reversing the appellate court's judgment and restoring that of the trial court, we provide a brief review of the facts, the reasoning of the trial and High Court as well as the standards by which appeals against acquittals are reviewed according to settled principles of criminal jurisprudence in our country.\n5.  Before turning to the facts that were before the trial court, we note that there is an interesting coincidence in this case.\n6. The names of both the accused and the deceased are Ghurey Lal. Therefore, to avoid confusion, we have referred to them as \"accused\" and \"deceased.\"\n7.  Brief facts, according to prosecution, which are necessary to dispose of this appeal are recapitulated as under:\n8. It appears that at the heart of this matter lies a property dispute. The accused testified in favour of his great-grand daughter, Ram Devi. This testimony went against the deceased, creating enmity between the parties.\n9.  On 14.3.1979, the deceased, Shiv Charan P.W.1, Brij Raj Singh P.W.2, Yad Ram P.W.4, Nathi Lal (not examined) and Bishambhar (not examined) had taken the customary Gur (Jaggery) during the Holi festival.\n10.  On their way home, they happened to pass by the home of the accused. The accused was standing just outside his home and was holding a shot gun. The accused began to verbally abuse the deceased. Thereafter, the accused fired one single shot from his gun, killing the deceased with a bullet and causing injuries to Brij Raj Singh P.W. 2 with pellets. Hearing the gun shot, some people quickly assembled at the scene. The accused fled to his room, which he locked from inside. The uncle of the deceased, Shiv Charan, lodged the FIR that very evening, the 14th March, 1979 at 6.15 p.m., at the Barhan Police Station in the District of Agra.\n11.  The accused provided his own version of the event. According to the statement of the accused u/s. 313 of the Code of Criminal Procedure, he went to the place of Kanchan Singh where Gur (Jaggery) was being distributed. One Bal Mukand told the accused to leave the Gur distribution ceremony, as the deceased, Brij Raj Singh P.W. 2, Yad Ram P.W.4, Nathi Lal and Bishambhar had collected pharsa, lathis and kattas declaring that they will deal with him (accused) when he comes there. On hearing this, the accused returned to his home and grabbed his gun. The deceased and others then arrived at his home, brandishing weapons.\n12. The deceased carried a pharsa, Nathi Lal had a katta, Brij Raj Singh a knife and Yad Ram and Bishambhar possessed lathis. To threaten and check them, the accused aimed his gun at them. This was to no avail. The deceased and others struck at the accused, hitting his gun. Nathi Lal fired his katta, causing pellet injuries to Brij Raj Singh P.W.2. A scuffle ensued in which the deceased's group tried to snatch away his gun. In the scuffle, the gun was accidentally fired, killing the deceased. The accused sustained pharsa and lathi blows on the butt and barrel of the gun. Fearing for his life, the accused went to his room and locked the door from inside.\n13.  Brij Raj Singh P.W. 2 was sent to the Government Hospital, Barhan for medical examination. Dr. Govind Prasad P.W.3 found the following injuries on the person of Brij Raj Singh, P.W. 2:\n\"1. Round lacerated wound 0.3 cm x 0.3 cm on right side back 10 cms away from mid line 9 cms below border of scapula. Margins burnt and inverted, and tattooing present in an area of 5 cms. No pellets palpable. Bleeding present.\n2. Lacerated wound of exit 1.5 cm x 0.5 cm on right side back 0.8 cm away and lateral from injury no. 1. Skin burnt and tattooing present in the area of 5 cm x 5 cms. Merging of the wound inverted. No pellets palpable.\"\n14.  The Doctor opined that the injuries were caused by a firearm.\n15. He advised that x-rays be taken and that the injuries be kept in observation. In his opinion, the injuries were caused by a gun shot and were of fresh duration. In his opinion, the injuries could have been caused around 4 p.m. The doctor sent the memo Ex. Ka-4 on the same day, informing the case of Medico legal nature to the Barhan Police Station.\n16.  The autopsy on the deceased was conducted by Dr. Ram Kumar Gupta, P.W.5, Medical Officer, SNM Hospital, Firozabad, District Agra. It revealed the following ante-mortem injuries on the deceased:\n\"1. Gun shot wound of entry 2.5 cm x 2.5 cm x through and through on right side neck 2 cm lateral to midline of neck front aspect.\n2. Gun shot wound of exit 5 cm x 4 cm x through and through on right side back of neck 5 cm below right ear corresponding to injury no. 1 with margins averted.\"\n17. The Doctor opined that the cause of death was due to shock and hemorrhage as a result of ante-mortem injury.\n18.  The prosecution examined Shiv Charan P.W.1, Brij Raj Singh P.W.2 and Yad Ram P.W.4 as eye witnesses of the occurrence. Dr. Govind Prasad P.W.3, Medical Officer Incharge, who had medically examined Brij Raj Singh, proved the injury report Ext. Ka 3. Dr. Ram Kumar Gupta P.W. 5, who had conducted autopsy on the dead body of the deceased, was also examined. On internal examination, he found semi digested food material in the small intestine and there was faecal matter present in the large intestines. He prepared the post-mortem report Ex. Ka-5. In his opinion, the death of the deceased had taken place around 4 p.m. on 14.3.79 on account of the said injuries and shock.\n19.  The accused was charged with killing the deceased u/s. 302 of the Indian Penal Code (For short, IPC) and with causing simple injuries to the injured u/s. 323 IPC. He was also charged with attempting to murder Brij Raj u/s. 307 IPC. The accused appellant denied the charges, pleaded not guilty and asked to be tried.\n20.  The crucial question which arose for consideration was whether the injuries caused to Brij Raj Singh P.W.2 could have been caused by the same shot that killed the deceased. If that was possible, the prosecution version became probable. But if the shot that killed the deceased and the shot that caused injuries to Brij Raj Singh were from different weapons, then the defence version was more probable. Shri B. Rai, Ballistic Expert, Forensic Science Laboratory, U.P. was called as court witness No.1. He was asked to explain the nature of the 12 bore cartridges and give an opinion, for which he wanted time to carry out experiments in the laboratory.\n21. The gun was given to him and he performed a test in his laboratory in the light of the statements of the eye-witnesses, medical report and site-plan. He submitted his report, Ex. CKa.1, wherein he clearly opined that injuries Nos. 1 and 2 of the deceased were possible by the gun Ex.3 of the accused and injuries Nos.1 and 2 of the injured Brij Raj Singh were possible by another fire. By \"fire\", it is clear from the record that the Ballistic Expert was referring to a \"firearm\".\n22.  Ultimately, we must answer the following question: Whether the prosecution story of a single shot causing injury to two persons, that is bullet injury to deceased and pellet injury to Brij Raj Singh, with the accused as the aggressor, stands sufficiently proved beyond reasonable doubt?\n17. In order to decide whether a single shot was fired or in fact two different shots were fired, we must carefully examine the versions of the prosecution and the defence and the report of the Ballistic Expert. According to the trial court, the medical evidence coupled with the Ballistic Expert report revealed the existence of two fires from two weapons and as such was inconsistent with the prosecution story. The trial court further provided that it is difficult to separate falsehood from the truth, as some material aspects of the occurrence appeared to have been deliberately withheld. \"One has to separate the chaff from the grain and it is difficult to lay hand upon what part of the prosecution evidence is true and what part is untrue\". According to the accused, the trial court had taken a reasonable and possible view of the entire evidence on record.\n23.  The post-mortem report Ex. Ka-5, photo lash Ex. Ka-7 and the statement of Dr. Ram Kumar Gupta P.W.5 indicate that the wound of entry was on the right side of the neck 2 cm. lateral middle line on front aspect.\n24. The exit wound was on the right side back of neck 5 cm. below the right ear. This means that the bullet had entered from the front side of the neck from a distance of 2 cm. lateral to middle line, and it had come out from the back of the neck at a place 5 cm. below the right ear. In this way, the trial court reasoned that the barrel of the gun, when discharging, was slanting vertical. The mouth of the barrel was upward and its butt downward. The barrel and the butt were not horizontal to the ground at that time.\n25.  The trial court observed that injury no. 1 (wound of entry) on Brij Raj Singh P.W.2 was on the right side of his back 10 cm. away from the mid line, 9 cms. below the lower border of scapula. Injury no. 2 (wound of exit) was on the right side of his back 8 cm. away and lateral from injury no.1. This means that the exit wound was by the side of the entry wound at a distance of 8 cm.\n26.  The dictionary meaning of 'lateral' is \"by the side\" and this means that the two injuries caused by pellets to Brij Raj Singh P.W.2 were horizontal and not vertical. The trial court opined that the single shot could not have caused vertical injury to one person and horizontal injury to another. It found it doubtful and not sufficiently proved that the same shot could have injured Brij Raj Singh and killed the deceased.\n27.  This conclusion is further fortified by the report of the Ballistic Expert Sri B. Rai court witness No.1. He has given a definite opinion after making actual experiments by firing shots. This was done from the distance at which the occurrence was said to have taken place. The eye-witnesses had testified to this distance. The Ballistic Expert opined that the injuries to Brij Raj Singh P.W.2 were from a different shot from the one that killed the deceased.\n28.  The relevant part of the evidence of the Ballistic Expert reads as under:\n\"2. QuestionWhether bullet and Chharras both be used in 12 bore gun or not? Ans.12 bore gun have no bullet. It has small chharas, big chharas or one single ball shot with diameter about 0645.\"\n29.  The Ballistic Expert after studying the post-mortem report observed as under:\n\"Studying the Post Mortem report No. 51/79 of deceased Ghurey Lal and injury report of Brijraj Singh dated 14.3.79, statement of doctor and witnesses and site plan and keeping the result of above experiments in mind, I reached in conclusion that injury No. 1 and 2 possible to sustain to deceased Ghurey Lal by this gun from the distance of 10 feet and injury No. 1 and 2 of injured Brij Raj Singh seems to sustain by some other shot.\"\n30.  The Ballistic Expert categorically stated that in cartridges of standard 12 bore shot guns, bullets from other rifles cannot be used with small and big chharas (pellets). Therefore, the trial court concluded that both the injuries were not possible by a single firearm.\n31.  Leading experts of forensic science, particularly ballistic experts, do not indicate that from a single cartridge both bullets and pellets can be fired. Professor Apurba Nandy in his book \"Principles of Forensic Medicine\", first published in 1995 and reprinted in 2001, discussed cartridges. Professor Nandy mentioned that in some cases, instead of multiple pellets, a single shot or metallic ball, usually made of lead, is used. We note that the discussion regarding cartridges exclusively mentions pellets. No mention of bullets and pellets in cartridges is found in the numerous volumes of scholarly literature that we have consulted. Relevant discussion reads as under:\n\"The Cartridges (the ammunitions)The cartridge of a shotgun and the cartridge of a rifled weapon are essentially different in their makes.\nThe cartridge of a shot gun (Fig. 10.69) The cartridge of a shotgun has the following parts and contents-\n1. The cartridge case The longer anterior part of the cartridge case is made of card board.\nThe posterior part and the posterior surface is made of brass. The margin of the breach end of the cartridge case is rimmed, so that, the cartridge can be properly placed inside the chamber and with pressure on the rim the empty cartridge case can be easily ejected out of the chamber. The anterior margin of the cartridge case is twisted inward to keep the pellets and other materials inside the case compact. The anterior part of the cartridge case is made of cardboard, for which, with production of gas inside the cartridge case it can slightly expand so that, the twisted grip by the anterior margin will be released and the pellets can come out of the case. The posterior metallic part keeps the shape of the breach end of the cartridge intact. It helps to maintain the right position of the cartridge in the chamber, so that, the percussion pin of the hammer strikes the percussion cap rightly at the breach surface of the cartridge. At the central part at the breach end inside the cartridge case is the percussion cap.\n2. The percussion cap It contains primer or priming mixture and there are some vents or openings on the wall of the percussion cap. When the posterior surface of the percussion cap is struck by the percussion pin, the priming mixture which consists of a mixture either of mercury fulminate, pot, pot, chlorate and antimony sulphide or of antimony sulphide with lead styphnate, lead peroxide, barium nitrate or tetracene, gets ignited due to the pressure and friction and fire comes out through the vents or openings on the wall of the percussion cap.\n3. Contents inside the cartridge case. Surrounding the percussion cap is the gun powder or the propellant charge which cannot ignite by pressure or friction and which on being ignited does not produce flame but produces huge amount of gas.\nUsually the gunpowder of the shotguns contains charcoal, pot, nitrate and sulphur. This combination of the gunpowder is known as black powder, as it produce much smoke.\nNow-a-days semi smokeless gun powder is in use in shot guns which is a combination of 80% of black powder and 20% of smokeless powder. Smokeless powder is ordinarily used in the cartridges of rifles (nitrocellulose or a combination of nitrocellulose and nitroglycerine). The black powder produces 200 300 ml. of gas per grain. In front of the gunpowder, inside the cartridge case, there is a thin cardboard disc. In front of the cardboard, disc is placed the wad. The wad is made of soft substance like, felt, cork, straw or rug. In front of the wad, there is another card board disc. In front of this disc, the pellets are placed.\nThe pellets are spherical projectiles used in shot guns. Their size may be variable, according to the need and make. One ounce of pellets may consist of 6 to 2,600 of them. In front of the pellets there is another cardboard disc on the anterior margin of which the anterior margin of the cartridge case is twisted. The functions of the wad are to give compactness to the gunpowder, to prevent admixture of propellant charge and the pellets and prevent leakage of the gas produced after the firing. Wad also cleans the inner surface of the barrel after the pellets pass out through the barrel. To facilitate this cleaning, some greasy material is soaked in the wad. In between the propellant charge and the wad there is a cardboard disc so that the greasy substance in the wad will not be soaked by the propellant charge and become useless. In between the wad and the pellets there is a disc which in one hand prevents impregnation of the pellets in the soft wad and on the other, prevents leakage of the greasy substance from the wad in the pellets which would otherwise become adhesive to each other loosing their dispersion capacity. The anterior most disc, placed in front of the pellets, give compactness to the pellets and the whole content of the cartridge case. Shots of different sizes are suitable for different purposes. Accordingly \"Buck shots\" or \"Bird shots\" have different sized shots or pellets for hunting wild birds or other prey.\nIn some cases instead of multiple pellets a single hot or metallic ball, usually made up of lead, is used. \"Rifled slugs\" are single shot projectiles for shot guns with prominent parallel grooves on the surface.\"\n32.  In this book, the assessment of the direction of firing from the margin of the wound of entrance has also been given, which reads thus:\n\"Assessment of the direction of firing from the margin of the wound of entrance -\n(i) (a) In case of shotgun injury, the pattern of dispersion of the pellets give the direction of the firing. The pellets disperse over wider area as it travels more. Hence firing is suspected to have been from the side opposite to the side of wider dispersion of the pellets. ......\"\n33.  \"Firearms in Criminal Investigation and Trials\" was written by a distinguished professor Dr. B.R. Sharma. He has written in some detail about 12 bore guns. This book also defines Pellet Pattern which reads thus:\n\"Pellet Pattern The area covered (pellet spread) by the pellets fired from a shotgun is proportional to the distance between the muzzle of the firearm and the target. Greater the range, greater is the area covered by the pellets. The spread of the pellets is affected mainly by the length of the barrel of the firearm and its muzzle characteristics (whether it is choked or not). The condition of the ammunition also affects the results. If experiments are performed with the same firearm and ammunition of the same make and batch, the test patterns provide fairly accurate estimates of the range.\nGenerally, the whole charge enters the body en masse up to a range of about two metres in a factory-made 12-bore shotgun. It forms a rat-hole of about two to six centimetres in diameter. The rat-hole is surrounded by individual holes when the range of fire is about two to seven metres...\"\n34.  The trial court stated that in the FIR itself it is mentioned that the injuries to Brij Raj Singh were by pellets and that of the deceased by a bullet. The Ballistic Expert has stated that the cartridge containing pellets cannot contain a bullet.\nAccordingly, the trial court reasoned that two weapons were used.\n35.  The Ballistic Expert is a disinterested, independent witness who has technical knowledge and experience. It follows that the trial judge was fully justified in placing reliance on his report.\n36.  The trial court also observed that removing the body of the deceased from the place of occurrence creates doubt that the prosecution was planning to substitute another story for the real facts. As such, the possibility that the deceased and his group were the aggressors is not ruled out. It is possible that pharsa and lathi blows had made the marks that were found on the gun. The gun may have snatched all of a sudden, causing it to fire upon the deceased and Brij Raj. Under the circumstances of the case, the use of another weapon, which had caused injuries to Brij Raj Singh P.W.2, is also not ruled out.\n37.  The trial court further observed that the substratum of the prosecution story about the injuries to Brij Raj Singh is not established beyond reasonable doubt and the story of shooting the deceased by the same shot fired by the accused is not separable from other doubtful evidence of eyewitnesses. The circumstances show that the possibility of aggression on the part of the complainant side is not ruled out, then the benefit of doubt for killing the deceased by the accused would also go to the accused.\n38.  The trial court also found force in the plea of right of private defence as set up by the accused.\n39. The trial court mentioned that there is force in this argument where the circumstances of the case show that two fire arms were used in the occurrence. The accused was all alone in his house at that time. The availability of a second weapon is possible only when the complainant side had brought it to the scene. This circumstance supports the defence case, that the complainants' side was the aggressor and they had come armed with weapons to the scene. It follows that the accused would apprehend grievous hurt and danger to his life. Accordingly, the right of self defence was open to him.\n40.  In the concluding paragraph of the judgment, the trial court observed that when neither the prosecution nor the defence version is complete, then it is obvious that both the parties are withholding some information from the court. The burden of proving the charge to the hilt lies upon the prosecution. It has failed to discharge its burden. Thus, the benefit has to go to the accused.\n41. According to the trial court, the accused could not be convicted for the charges framed against him. He was entitled to get the benefit of doubt and, consequently, the accused had to be acquitted of the charges under sections 302, 307 and 323 IPC.\n42.  The State, aggrieved by the trial court's judgment, preferred an appeal before the High Court.\n43.  The High Court in appeal re-appreciated the entire evidence and came to the conclusion that the trial court's judgment was perverse and unsustainable. It therefore set aside the trial court judgment and convicted the accused u/s. 302 IPC for the murder of the deceased and u/s. 324 IPC for injuring Brij Raj Singh and sentenced him to life imprisonment and for six months R.I. respectively.\n44.  Against the impugned judgment of the High Court, the accused appellant has preferred appeal to this court. We have been called upon to decide whether the trial court judgment was perverse and the High Court was justified in setting aside the same or whether the impugned judgment is unsustainable and against the settled legal position?\n45.  We deem it appropriate to deal with the main reasons by which the trial court was compelled to pass the order of acquittal and the main reasons of the High Court in reversing the judgment of the trial court.\nMAIN REASONS FOR ACQUITTAL BY THE TRIAL COURT:\nThe trial court acquitted the accused for the following reasons:\n\"1. The prosecution story of single shot injury to two persons one standing horizontally and the other vertically stands totally discredited by the medical and the evidence of Ballistic Expert.\n2. According to the FIR, the deceased received a spherical ball (ball shot) bullet injury and Brij Raj Singh P.W.2 received pellet injuries.\nThe accused's gun had a cartridge that could only contain pellets. The Ballistic Expert has clearly stated that a cartridge containing pellets cannot contain a bullet. As such, it appears that two weapons were used.\n3. Dr. Ram Kumar Gupta, P.W.5 who conducted the post-mortem of the deceased, clearly stated that the deceased received injuries from a bullet whereas Dr. Govind Prasad Bakara who had examined Brijraj Singh P.W.2 clearly stated that both injuries were caused by a pellet.\nTherefore, according to medical evidence coupled with the evidence of the Ballistic Expert, two firearms must have been used. This version is quite inconsistent with the prosecution story.\n4. The injuries received by Brij Raj Singh P.W.2 were from the back side and the injury received by the deceased was from the front side and this shows that two weapons may have been used.\n5. Removal of the body of the deceased from the place of occurrence also created doubt with regard to the veracity of the prosecution version.\n6. The possibility that the deceased and the complainant's side were aggressors and had gone there and caused pharsa and lathi blows on the accused cannot be ruled out because of the marks on the gun Ex.3. That the said gun was fired in snatching all of a sudden, injuring the deceased also cannot be ruled out from the circumstances of the case.\n7. The trial court did not discard the defence version of right of private defence as pleaded by the accused.\n8. The trial court observed that it is difficult to separate falsehood from the truth, where some material aspects of the occurrence seem to have been deliberately withheld. It is a wellestablished principle of criminal jurisprudence that when two possible and plausible explanations co-exist, the explanation favourable to the accused should be adopted.\"\nMAIN REASONS FOR REVERSAL OF ACQUITTAL ORDER:\n46.  The High Court gave the following reasons for setting aside the acquittal:\n\"1. A perusal of the post-mortem report goes to show that autopsy conducted on the dead body of the deceased revealed antemortem gunshot wound of entry 2.5 cm x through and through on right side neck 2 cm lateral to midline of neck front aspect having corresponding wound of exit 5 cm x 4 cm on right side back of neck 5 cm below right ear. Therefore, this injury was almost horizontal.\n2. Medical examination of injured Brij Raj Singh revealed a round lacerated wound of entry 0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 cm below lower border of scapula having wound of exit 1.5 cm x 0.5 cm x 0.5 on right side back 0.8 cm away and lateral from injury no. 1. Thus, this injury was also almost horizontal.\n3. The observation made by the trial judge that firearm injury caused to the deceased was vertical and to that of Brij Raj Singh horizontal is wholly fallacious.\n4. A layman does not understand the distinction between a cartridge containing pellets and the bullet. In common parlance, particularly in villages when a person sustains injuries by gun shot, it is said that he has received 'goli' injury. Ghurey Lal fired at his uncle with his gun causing him Goli (bullet) injury and Brij Raj Singh also received pellet (chhara) injury which goes to show that injuries received by them were caused by two different weapons. There is hardly any difference between bullet and pellet for a layman. From 12 bore gun cartridge is fired and 12 bore cartridge always contain pellets though size of pellets may be different.\n5. A perusal of the post-mortem reports goes to show that autopsy conducted on the dead body of the deceased revealed antemortem gun shot wound of entry 2.5 cms. through and through on right side neck 2 cm lateral to midline of neck front aspect having corresponding wound of exit 5 cm x 4cm on right side back of neck 5 cm below right ear.\nTherefore, this injury was almost horizontal.\n6. The medical examination of injured Brij Raj Singh revealed a round lacerated wound of entry 0.3 cm x 0.5 cm on right side back 10 cm away from midline and 9 cm below lower border of scapula having wound of exit 1.5 cm x 0.5 cm x 0.5 cm on right side back 0.8 cm away and lateral from injury no.1.\nThus, this injury was also almost horizontal.\n7. The learned trial judge had noted the evidence of B. Rai, Ballistic Expert, C.W.1 that both the injuries would have been caused by two shots. While B. Rai, Ballistic Expert, C.W.1 had given the said opinion, he had also stated in his crossexamination by the prosecution that if the assailant fired from place 'C' and the person receiving pellet injury standing at place 'B' would have turned around, on dispersal of pellets he could have received the pellet injuries if deceased and injured both would have stood in the same line of firing.\"\nOUR CONCLUSIONS:\n47.  We disagree with the High Court. Admittedly, the deceased died of a bullet injury whereas Brij Raj Singh, P.W. 2 received pellet injuries. It is well settled that a cartridge cannot contain pellet and bullet shots together. Therefore, the injuries on deceased and injured P.W. 2 clearly establish that two shots were fired from two different fire arms.\n48.  The High Court also observed that the laymen, meaning thereby the villagers, hardly know the difference between a bullet and a pellet.\n49. This finding has no basis, particularly in view of the statement of all the witnesses on record. Wherever the witnesses wanted to use 'bullet' they have clearly used 'Goli' or 'bullet' and wherever they wanted to use 'pellet' they have clearly used the word 'Chharra' which means pellets, so to say that the witnesses did not understand the distinction between the two is without any basis or foundation.\n50.  Mr. Sushil Kumar, learned senior advocate appearing for the appellant, submitted that the judgment of the trial court was based on the correct evaluation of the evidence and the view taken by the trial court was definitely a reasonable and plausible. Therefore, according to the settled legal position, the High Court was not justified in interfering with the judgment of the trial court.\n51.  Shri Ratnakar Das, learned senior advocate appearing for the respondent State submitted that the impugned order of the High Court is consistent with the settled legal position. He submitted that once an order of acquittal is challenged then the appellate court has all the powers which are exercised by the trial court. We agree that the appellate court is fully empowered to re-appreciate and re-evaluate the entire evidence on record.\n52.  We deem it appropriate to deal with some of the important cases which have been dealt with under the 1898 Code by the Privy Council and by this Court. We would like to crystallize the legal position in the hope that the appellate courts do not commit similar lapses upon dealing with future judgments of acquittal.\n53.  The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor AIR 1934 Privy Council 2271934 Indlaw PC 30. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under:\n\"..the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses..\"\n54. The law succinctly crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and reevaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally illfounded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.\n55.  This Court again in the case of Surajpal Singh & Others v. State, AIR 1952 SC 52 1951 Indlaw SC 23, has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under:\n\"It is well established that in an appeal under S. 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.\"\n56.  This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons.\n57.  In Tulsiram Kanu v. The State, AIR 1954 SC 1 1951 Indlaw SC 75, this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion.\n58.  In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637 1954 Indlaw SC 192, wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of various material facts transpiring in evidence. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision.\n59.  The same principle has been followed in Atley v. State of U.P. AIR 1955 SC 807 1955 Indlaw SC 135 , wherein the Court said:\n\"It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.\nIt is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.\"\n60.  The question was again raised prominently in Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 1955 Indlaw SC 41. Bose, J. expressing the majority view observed:\n\"It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab (AIR 1953 SC 76,); and if the trial Court takes a reasonable view of the facts of the case, interference under S. 417 is not justifiable unless there are really strong reasons for reversing that view. Surajpal Singh v. State AIR 1952 SC 52 at 54 1951 Indlaw SC 23.\"\n61.  In Balbir Singh v. State of Punjab AIR 1957 SC 216 1956 Indlaw SC 121, this Court again had an occasion to examine the same proposition of law. The Court (at page 222) observed as under:\n\"It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge.\"\n62.  A Constitution Bench of this Court in M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 1962 Indlaw SC 520, observed as under:\n\"There is no doubt that the power conferred by cl. (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by cl. (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence.\nThus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence. ........\nThe test suggested by the expression \"substantial and compelling reasons\" should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse.\nThe question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.\"\n63.  In Noor Khan v. State of Rajasthan, AIR 1964 SC 286 1963 Indlaw SC 294, this Court relied on the principles of law enunciated by the Privy Council in Sheo Swarup1934 Indlaw PC 30 (supra) and observed thus:\n\"Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.\"\n64.  In Khedu Mohton & Others v. State of Bihar, (1970) 2 SCC 450 1970 Indlaw SC 315, this Court gave the appellate court broad guidelines as to when it could properly disturb an acquittal. The Court observed as under:\n\"3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption ofinnocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.\"\n(emphasis supplied)\n65.  In Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793 1973 Indlaw SC 181, the Court observed thus:\n\"An appellant aggrieved by the overturning of his acquittal deserves the final court's deeper concern on fundamental principles of criminal justice...... ........ But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration, In our view the High Court's judgment survives this exacting standard.\"\n66.  In Lekha Yadav v. State of Bihar (1973) 2 SCC 424 1973 Indlaw SC 436, the Court following the case of Sheo Swarup1934 Indlaw PC 30 (supra) again reiterated the legal position as under:\n\"The different phraseology used in the judgments of this Court such as-\n(a) substantial and compelling reasons:\n(b) good and sufficiently cogent reasons;\n(c) strong reasons.\nare not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified.\"\n67.  In Khem Karan & Others v. State of U.P. & Another AIR 1974 SC 1567 1974 Indlaw SC 396, this Court observed:\n\"Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.\"\n68.  In Bishan Singh & Others v. The State of Punjab (1974) 3 SCC 288 1973 Indlaw SC 425, Justice Khanna speaking for the Court provided the legal position:\n\"22. It is well settled that the High Court in appeal u/s. 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; & (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.\"\n69.  In Umedbhai Jadavbhai v. The State of Gujarat (1978) 1 SCC 228 1977 Indlaw SC 138, the Court observed thus:\n\"In an appeal against acquittal, the High Court would not ordinarily interfere with the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice.\"\n70.  In B.N. Mutto & Another v. Dr. T.K. Nandi (1979) 1 SCC 361 1978 Indlaw SC 112, the Court observed thus:\n\"It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. \"A reasonable doubt\", it has been remarked, \"does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.]\"\n{emphasis supplied}\n71.  In Tota Singh & Another v. State of Punjab (1987) 2 SCC 529 1987 Indlaw SC 28143, the Court reiterated the same principle in the following words:\n\"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.\"\n72.  In Ram Kumar v. State of Haryana 1995 Supp. (1) SCC 248 1994 Indlaw SC 105, this Court had another occasion to deal with a case where the court dealt with the powers of the High Court in appeal from acquittal. The Court observed as under:\n\".. the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions u/ss. 378 and 379 CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of of seeing the witness.\nNo doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.\"\n73.  This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State of J & K, (1997) 7 SCC 677 1997 Indlaw SC 1460, the Court observed as under:\n\"8. ........ that there must be \"sufficient and compelling reasons\" or \"good and sufficiently cogent reasons\" for the appellate court to alter an order of acquittal to one of conviction........\"\n74.  In Sambasivan & Others v. State of Kerala (1998) 5 SCC 412 1998 Indlaw SC 809, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:\n\"The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.\"\n75.  In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85 2002 Indlaw SC 1611, the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under:-\n\"7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.\"\n76.  In Harijana Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad (2002) 6 SCC 470 2002 Indlaw SC 1635, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:\n\"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.\n11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged.\nFurther if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.\nIt must be added that ultimately and finally the decision in every case depends upon the facts of each case.\n12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.\"\n77.  In C. Antony v. K.G. Raghavan Nair, (2003) 1 SCC 1 2002 Indlaw SC 1369 had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:\n\"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.\"\n78.  In State of Karnataka v. K. Gopalkrishna, (2005) 9 SCC 291 2005 Indlaw SC 78, while dealing with an appeal against acquittal, the Court observed:\n\"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.\"\n79.  In The State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 2007 Indlaw SC 182, this Court relied on the judgment in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 2003 Indlaw SC 630 and observed as under:\n\"15. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. ... The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.\"\nThe Court further held as follows:\n\"16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.\"\n80.  In Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415 2007 Indlaw SC 121, this Court held:\n\"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.\n(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.\n(3) Various expressions, such as, \"substantial and compelling reasons\", \"good and sufficient grounds\", \"very strong circumstances\", \"distorted conclusions\", \"glaring mistakes\", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of \"flourishes of language\" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.\n(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.\n(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\"\nThe following principles emerge from the cases above:\n\"1. The appellate court may review the evidence in appeals against acquittal u/ss. 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.\n2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.\n3. Due or proper weight and consideration must be given to the trial court's decision. \"\n81. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.\n82.  In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:\n\"1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has \"very substantial and compelling reasons\" for doing so.\nA number of instances arise in which the appellate court would have \"very substantial and compelling reasons\" to discard the trial court's decision. \"Very substantial and compelling reasons\" exist when:\n(i) The trial court's conclusion with regard to the facts is palpably wrong;\n(ii) The trial court's decision was based on an erroneous view of law;\n(iii) The trial court's judgment is likely to result in \"grave miscarriage of justice\";\n(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;\n(v) The trial court's judgment was manifestly unjust and unreasonable;\n(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.\n(vii) This list is intended to be illustrative, not exhaustive.\n2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.\n3. If two reasonable views can be reached one that leads to acquittal, the other to conviction the High Courts/appellate courts must rule in favour of the accused.\"\n83.  Had the well settled principles been followed by the High Court, the accused would have been set free long ago.\n84. Though the appellate court's power is wide and extensive, it must be used with great care and caution.\n85.  We have considered the entire evidence and documents on record and the reasoning given by the trial court for acquitting the accused and also the reasoning of the High Court for reversal of the judgment of acquittal. We have also dealt with a number of cases decided by the Privy Council and this Court since 1934. In our considered opinion, the trial court carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion. We are clearly of the opinion that the reasoning given by the High Court for overturning the judgment of the trial court is wholly unsustainable and contrary to the settled principles of law crystallized by a series of judgment.\n86.  On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. The settled legal position as explained above is that if the trial court's view is possible and plausible, the High Court should not substitute the same by its own possible views. The difference in treatment of the case by two courts below is particularly noticeable in the manner in which they have dealt with the prosecution evidence. While the trial court took great pain in discussing all important material aspects and to record its opinion on every material and relevant point, the learned Judges of the High Court have reversed the judgment of the trial court without placing the very substantial reasons given by it in support of its conclusion. The trial court after marshalling the evidence on record came to the conclusion that there were serious infirmities in the prosecution's story.\n87. Following the settled principles of law, it gave the benefit of doubt to the accused. In the impugned judgment, the High Court totally ignored the settled legal position and set aside the well reasoned judgment of the trial court.\n88.  The trial court categorically came to the finding that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case has to be discarded. When the trial court finds so many serious infirmities in the prosecution version, then the trial court was virtually left with no choice but to give benefit of doubt to the accused according to the settled principles of criminal jurisprudence.\n89.  On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court for reversing the judgment of acquittal is unsustainable and contrary to settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable.\n90.  On consideration of the totality of the circumstances, the appeal filed by the appellant is allowed and the impugned judgment passed by the High Court is set aside. The appellant would be set at liberty forthwith unless required in any other case.\nAppeal allowed.\n"}
+{"id": "ZXe1cb51JJ", "title": "", "text": "Rajesh Ranjan Yadav @ Pappu Yadav v Cbi Through Its Director\nSupreme Court of India\n\n16 November 2006\nAppeal (Crl.) 1172 Of 2006\nThe Judgment was delivered by : Hon'ble Justice Markandey Katju\nLeave granted.\n1.  This appeal u/art. 136 of the Constitution of India has been filed against the impugned judgment and order dated 27.4.2006 of the Patna High Court by which the appellant's application for bail has been dismissed, but with the following observations:\n\"Since the petitioner has actually remained in custody in connection with the present case for about 5 years and 7 months as per submission on behalf of petitioner, hence, considering the spirit of the last order of the Apex Court dated 3.10.05, the trial court is directed to hold trial at least for about three days in a week on an average so that the examination of prosecution witnesses may be concluded without any delay preferably within three months. Thereafter, the court shall ask the defence to submit the list of its wi5tnesses and make efforts to conclude the trial expeditiously, preferably within six months. If the trial cannot conclude within the aforesaid period of six months from today, the petitioner would be at liberty to renew his pray for bail.\nWith this observation, this application for bail is dismissed at this stage.\"\n2.  The appellant is an accused in a case under Sections 302/34/120B IPC read with S. 27 of the Arms Act. The appellant's bail application had been rejected earlier on several occasions by the High Court as well as by this Court. The last order of this Court dated 3.10.2005 states as under :\n\"Having heard the learned senior counsel appearing for the petitioner, we are of the opinion that the application for bail may not be entertained at this stage. The special leave petition is dismissed. However, we would request the learned Sessions Judge to expedite the trial. If the trial is not completed within a period of six months from today, it would be open to the petitioner to renew the bail application. Learned Sessions Judge may consider the desirability of directing the CBI to examine the important witnesses at an early date and preferably within a period of four months.\"\n3.  We have been informed that now all the prosecution witnesses have been examined and cross-examined, and only the defence witnesses have to be examined.\n4.  Shri R.K. Jain, learned senior counsel appearing for the appellant stated that 60/70 defence witnesses are proposed to be examined and some more defence witnesses on behalf of other accused are to be examined. Hence, he submitted that it would take a long time to examine these witnesses. He submitted that the appellant has been in jail for more than six years and hence he should be released on bail. Learned counsel also submitted that if ultimately the appellant is found innocent by the trial court, he would have undergone a long period of incarceration in jail which would be violative of Art. 21 of the Constitution.\n5.  The appellant is a 4th term Member of Parliament (Lok Sabha) and learned counsel for the appellant has submitted that as per the material on record there appears to be no prima facie evidence that the appellant is guilty of the charges of offence.\n6.  Learned counsel for the appellant relied on the decision of this Court in Babu Singh and Others vs. State of Uttar Pradesh AIR 1978 SC 527 1978 Indlaw SC 128. In paragraph 10 of the said judgment it was observed as under:\n\"Personal liberty, deprived when bail is refused, is too precious a value of our Constitutional system recognized under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by 'law'. The last four words of Art. 21 are the life of that human right.\"\n7.  Learned counsel for the appellant then relied on the decision of this Court in Kashmira Singh vs. State of Punjab 1977(4) SCC 291 1977 Indlaw SC 52. In paragraph 2 of the said decision it was observed as under:\n\"It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person:\n\"We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?\" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal to be such a person who had already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.\"\n8.  Learned counsel for the appellant then relied on the decision of this Court in Bhagirath singh vs. State of Gujarat 1984 (1) SCC 284 1983 Indlaw SC 172, Shaheen Welfare Association vs. Union of India and Others. 1996(2) SCC 616 1996 Indlaw SC 2638, Joginder Kumar vs. State of U.P. and Others. 1994(4) SCC 260 1994 Indlaw SC 1505 etc.\n9.  In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.\n10.  As observed by this Court in State of U.P. vs. Amarmani Tripathi 2005(8) SCC 21 2005 Indlaw SC 1225, vide paragraphs 17 and 18:\n\"It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi [2001(4) SCC 280 2001 Indlaw SC 19889] and Gurcharan Singh v. State (Delhi Admn.[(1978(1) SCC 118 1977 Indlaw SC 410], While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004(7) SCC 528 2004 Indlaw SC 1041:\n\"The law in regard to grant or refusal of bail is very settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factothers also before granting bail; they are:\n(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.\n(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.\n(c) Prima facie satisfaction of the court in support of the charge. .\nThis Court also in specific terms held that :\n\"The condition laid down u/s. 437 (1)(i) is sine qua non for granting bail even u/s. 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitled the accused to be enlarged on bail, nor the fact that the trial is not likely to be concluded, in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.\"\n(emphasis supplied) The above decisions have referred to the decision of this Court in the appellant's own case Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and anr. 2004(7) SCC 528 2004 Indlaw SC 1041 in which it was clearly held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail.\n11.  It may further be mentioned that in another case of the appellant Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and anr. 2005(3) SCC 284 2005 Indlaw SC 93 where he sought bail, it was observed by this Court as under:\n\"In the normal course one would have expected an accused whose bail has been cancelled and who was intending to make an application for grant of bail to behave in a manner not to give any room for the prosecution to contend that he has been misusing the facilities available to him in law while he is in jail. But it seems, it is not the attitude of the respondent.\nImmediately after cancellation of bail by this Court the respondent had moved a fresh application before the High Court for grant of bail which came to be allowed by the order of the High Court dated 21-9-2004 and pursuant to the said order of bail the respondent came to be released from jail. The said order of the High Court granting bail was challenged before this Court by the complainant and the investigating agency (CBI) but what happened in between is worth noticing. On 26-9-2004 when the respondent was out of jail because of the bail granted by the High Court, he instead of getting himself treated for the ailment which he was complaining of, it is alleged that he was hosting a party for his co-prisoners in the jail late in the night of that day. While the authorities in the reports submitted pursuant to the directions issued by this Court did not admit that a party was given by the accused on 26-9-2004 they did admit that between 9.30 p.m. to 10.00 p.m. on that night the respondent did unauthorizedly visit the jail contrary to all restrictions on the entry to the jail under the Jail Manual. A complaint in regard to this unauthorized entry of the respondent\nto the prohibited areas of the jail premises is registered and based on the direction issued by the High Court of Patna, an investigation is going on in this regard and some of the jail authorities have been transferred.\nOn 1-10-2004 this Court while entertaining the appeal of the complaint against the grant of bail by the High Court directed the respondent to surrender to custody forthwith. Consequent to which he was taken back to custody.\nIt has also come on record that while in judicial custody the respondent was using cell phone which was seized from him and he was closely interacting with hardcore criminals who were undergoing jail sentence or are undertrial prisoners.\nRespondent 1 while in judicial custody has been accused of hatching a conspiracy to murder one Dimple Mehta in relation whereto a first information report being Purnea Sadar PS Case No. 159 of 2004 has been lodged on 28-9-2004 under Sections 302/120-B/34 IPC and S. 27 of the Arms Act.\nIt appears from the order-sheet dated 25-2-2003 of the Court of Additional Sessions Judge, XI Patna that the informant Shri Kalyan Chandra Sarkar had been given threats by veteran criminals and, thus, the Senior SP of Patna as well as SP was directed to make proper security arrangement for him and his family members.\nPara 3.12 of the report submitted by the Central Bureau of Investigation in response to this Court's order dated 2-122004 is as under:\n\"3.12. Investigation further reveals that Shri Dipak Kumar Singh, IAS, the Inspector General of Prisons had on 1-11-2004, forwarded a report of the Special Branch dated 30-10-2004, that Shri Rajesh Ranjan @ Pappu Yadav was meeting several visitothers in the Administrative Block of Beur Jail (not the specified meeting place for visitothers to the jail) and more significantly, that several such visitothers, who entered the jail under the pretext of meeting him (Shri Pappu Yadav) were actually meeting other dreaded hardcore criminals lodged in the jail. The Inspector General of Prisons had also urged the Jail Superintendent to allow interviews with prisoners in strict accordance with the provisions of the Jail Manual.\"\nIt is now beyond any controversy that such visits by a large number of persons inside the jail are in violation of the provisions of the Bihar Jail Manual and in particular Rules 623, 626-628 thereof. Even upon his election as a Member of Parliament from Madhepura Constituency he was not entitled to have such visit others having regard to the Special Rules for Division 1 Prisoners, Rule 1000 which permits interviews only once every fortnight and Rule 1001 which debars political matters being included in the conversation. These Rules also stand violated. Thus the material recorded hereinabove shows that the respondent has absolutely no respect for rule of law nor is he in any manner afraid of the consequences of his unlawful acts. This is clear from the fact that some of the acts of the respondent recorded hereinabove have been committed even when his application for grant of bail is pending.\nThe material on record also shows that the jail authorities at Beur are not in a position to control the illegal activities of this respondent for whatever reasons they may be.\"\n12.  The above observations clearly imply that the appellant's conduct has been such that he does not deserve bail.\n13.  Learned counsel for the appellant further relied on the decision of this Court in Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and anr. 2005 (5) SCC 294 2005 Indlaw SC 272. In paragraph 43 of the said decision it was observed as under:\n\"Presumption of innocence is a human right.(Narendra Singh vs. State of M.P.,[(2004(10) SCC 699 2004 Indlaw SC 266 para 31]. Art. 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exists cogent grounds therefore. Sub-s. (4) of S. 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction but clause (b) of sub-s. (4) of S. 21 must be given a proper meaning.\"\n14.  Learned counsel for the appellant has repeatedly referred to Art. 21 of the Constitution and on that basis has submitted that the appellant should be released on bail particularly since he has already been imprisoned for more than six years.\n15.  We are of the opinion that while it is true that Art. 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.\n16.  It has been stated that the appellant has been a Member of Parliament on four occasions. In our opinion, this is wholly irrelevant. The law is no respecter of persons, and is the same for every one.\n17.  A perusal of the FIR itself shows that it is a triple murder case, and the incident was committed in broad day light with sophisticated weapons. It is true that the appellant was not named in the FIR, but it has come in the statement before the Magistrate u/s. 164 Cr.P.C. of one Ranjan Tiwari that he and other assailants had been hired by the appellant to commit this ghastly crime.\n18.  We are not inclined to comment on the veracity or otherwise of the statement of Ranjan Tiwari and other witnesses as it may influence the trial, but looking at the allegations against the appellant both in the statement of Ranjan Tiwari and other witnesses, we are of the opinion on the facts and circumstances of the case, that this is certainly not a case for grant of bail to the appellant, particularly since the prosecution witnesses have been examined and now the defence witnesses alone have to be examined. It would, in our opinion, be wholly inappropriate to grant bail when not only the investigation is over but even the trial is partly over, and the allegations against the appellant are serious.\n19.  The conduct of the appellant as noted in the decision in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and anr. 2005(3) SCC 284 2005 Indlaw SC 93, is also such that we are not inclined to exercise our discretion u/art. 136 for granting bail to the appellant.\n20.  Learned Addl. Solicitor General, Shri Amarendra Sharan, submitted that the appellant himself was at least partly responsible for the delay in the conclusion of the trial because most of the prosecution witnesses were cross- examined by his counsel for several days, mostly be asking irrelevant questions, and this was deliberate dilatory tactics used for delaying the trial so that on that basis the appellant may pray for bail.\n21.  It is not necessary for us to go into this aspect of the matter because we have already noted above that this is certainly not a case for grant of bail to the appellant as the facts and circumstances of the case disclose.\n22.  Learned counsel for the appellant then submitted that since the appellant is not on bail, he cannot conduct his defence effectively. In our opinion if this argument is to be accepted, then logically in every case bail has to be granted. We cannot accept such a contention.\n23.  On the facts and circumstances of the case, we find no merit in this appeal. The appeal is accordingly dismissed. We, however, make it clear that no further application for bail will be considered in this case by any Court, as already a large number of bail applications have been rejected earlier, both by the High Court and this Court.\n24.  While we dismiss this appeal, we direct that the trial court shall ensure that the defence witnesses are examined on a day-to-day basis in accordance with a fixed time schedule so that the trial is completed as expeditiously as possible and the judgment is delivered soon thereafter. No costs.\nAppeal dismissed.\n"}
+{"id": "RCQ5WMO5AH", "title": "", "text": "Balak Ram and another v State Of Uttar Pradesh\nSupreme Court of India\n\n16 August 1974\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 72 of 1973. Appeal by Special leave from the Judgment and Order dated the 22nd December 1972 of the Allahabad High Court in Crl. A. No. 895 of 1972 and Referred No. 82 of 1972 and Criminal Appeal Nos. 25, 34-35 of 1973\nThe Judgment was delivered by : Y. V. Chandrachud, J.\n1. On May 27, 1971 two persons called Tribeni Sahai and Radhey were shot dead in the town of Dataganj, District Budaun. The four appellants : Balak Ram, Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan @ Banney Khan were tried along with two others by the learned Sessions Judge, Budaun, for various offences in connection with that incident. Balak Ram was convicted u/s. 302 of the Penal Code and was sentenced to death. He was also convicted and sentenced u/s. 337 read with s. 149 for causing injuries to Jhilmili and Ram Prakash and u/s. 148, Penal Code. The learned judge acquitted the other five accused of all the charges. Out of these five, we are not now concerned with Kailash whose acquittal is not under challenge and with Ahmed Sayeed Khan alias Pearey Mian who died during the pendency of the proceedings in the High Court of Allahabad.\n2. The High Court by its Judgment dated December 22, 1972 confirmed the conviction of Balak Ram and the sentence of death imposed on him u/s. 302 as also his conviction u/s. 148. The High Court altered his conviction u/s. 337 read with s. 149 to one u/s. 307 read with s. 149 of the Penal Code.\n3. In an appeal against the order of acquittal passed by the Sessions Court, the High Court confirmed the acquittal of Kailash, but convicted Nathoo, Dr. R. P. Kohli and Mohd. Sayeed Khan @ Banney Khan u/s.s 302 and 307 read with s. 149. It further convicted Nathoo and Dr. Kohli u/s. 148 and Banney Khan u/s. 147 of the Penal Code, The three accused have been sentenced by the High Court to imprisonment for life for their participation in the murder of Tribeni Sahai and Radhey and concurrently to ten years' rigorous imprisonment for causing injuries to Jhilmili and Ram Prakash. Balak Ram, Nathoo, Dr. Kohli and Banney Khan have filed four separate appeals by special leave of this Court.\n4. The incident leading to the murder of Tribeni Sahai and Radhey arose, indisputably, out of political rivalry, the parties involved being the Congress (R), Congress (0) and the Bhartiya Jan Sangh. Tribeni Sahai was a sitting Member of the U.P. Legislative Assembly, elected on the Congress, (R) ticket while the other victim Radhey is said to have been his bodyguard. Balak Ram, Nathoo and Banney Khan be- longed to the Congress (0) while Dr. R. P. Kohli was the local President of the Jan Sangh.\n5. The elections to the Town Area Committee of Dataganj were scheduled to be held on May 30, 1971. Balak Ram was contesting the election to the Chairmanship of the Committee as a nominee of Congress (0). Dharam Pal, the rival candidate for Chairmanship was a nominee of Congress (R). Nathoo and Banney Khan were contesting the election for the membership of the Committee on the ticket of Congress (0). The Jan Sangh seems to have decided to support the candidature of Balak Ram and others who were put up by Congress (0).\n6. The election campaign launched by the rival political parties led to great acrimony. The District Magistrate of Badaun, therefore, promulgated on May 24, 1971 an order u/s. 144 of the Code of Criminal Procedure, prohibiting the assembly of more than five persons and carrying of arms in public. If defiance of this order, Balak Ram led a procession cf some 25 persons at about 6.30 p.m. on May 27, 1971. While passing by the house of the rival candidate Dharam Pal, the processionists raised various slogans whereupon Dharam Pal formed a procession of his own followers. The two processions stood facing each other at the crossing of a road but the Station House Offi- cer Yogendra Sharma persuaded both the parties to disperse.\n7. The case of the prosecution in regard to the main incident leading to the double murder may be stated thus : At about 9.15 p.m. on May 27 the six accused along with 15 or 20 of their followers went about canvassing for the candidates out up by the Congress (0). A little later, they went southwards through a lane which leads to the house of the deceased Tribeni Sahai. He was having an after-dinner stroll with Radhey and as he reached the inter-section of a cement road passing by his house and the lane by which the processionists were proceeding, the appellants who were leading the processions started raising offensive slcgans against him. Tribeni Sahai protested and a wrangle ensued.\n8. While hot words were being exchanged, Dr. Kohli, Banney Khan and Pearey Mian exhorted Balak Ram to fire. Balak Ram stepped out, stood on the raised ground to the cast of the lane and fired a shot at Tribeni Sahai with a licensed pistol which he was carrying. Tribeni Sahai had sensed danger and was trying to escape but he was hit by a bullet on the right scapular region. Radhey 'Who was a few paces behind Tribeni Sahai ran forward to protect him when Balak Ram, Nathoo and Dr. Kohli fired four or five shots,. Radhey received a pistol injury on the left back. Jhilmili and Ram Prakash who live nearby came running in protest but they also received injuries as a result of the shots fired by Balak Ram, Nathoo and Dr. Kohli. Nathoo, like Balak Ram, was carrying a pistol while Dr. Kohli was armed with a licensed revolver. Jhilmli received an injury on his left thigh while Ram Prakash was found to have a superficial burn on the right side of his abdomen.\n9. According to the prosecution, Rajendra Kumar Misra gave in formation of the incident at 9.45 p.m. at the police station which is about two furlongs away. Rajendra Kumar Misra is the brother-in-law of Radhey Shyam Sharma who is the brother of the deceased Tribeni Sahai. Radhey Shyam was, at the material time, the Deputy Inspector General of Police and was stationed at Lucknow. The Station House Officer, Yogendra Sharma, asked a head constable to record the First Information Report. The S.H.O. signed the report and hurried to the scene of occurrence. Rajendra Kumar stayed behind at the police station in order to obtain a copy of the First Information Report.\n10. Dharam Pal, who was the rival candidate of the appellant Balak Ram for the, Chairmanship of the Town Area Committee, went to the scene of occurrence on hearing the pistol-fire. Tribeni Sahai is alleged to have told him that Balak Ram had fired a shot at the instigation of Banney Khan, Pearey Mian and Dr. Kohli. In a short while, the motor cars of Dharam Pal and Rajendra Kumar Misra arrived at the place Where Tribeni Sahai and Radhey were lying injured. Tribeni Saba-. was put in the car of Rajendra Kumar Misra and was accompanied by his wife and daughter. Radhey was put in the other car but before the two cars left on their way to Budaun, Yogendra Sharma the S.H .0. arrived at the scene.\nHe dispersed the crowd which had surrounded the two cars.\n11. He tried to interrogate Radhey but failed to get any res- ponse as Radhey was unconscious. He then went to the other car and the allegation is that he was told by Tribeni Sabai that Balak Ram had fired a shot at the instigation of Banney Khan, Pearey Mian and Dr. Kohli. The Station House Officer claims to have taken down the dying declaration in the case diary which he had taken with him while leaving the police station.\n12. The tow cars reached the Civil Hospital at Budaun at 11.30 p.m. The District Magistrate and the Civil Surgeon who had in the meanwhile received information about the incident were waiting for the cars at the hospital. Radhey, on being taken out of the car, was declared dead while Tribeni Sahai was taken to the Emergency Ward. As his condition was found to be precarious the Sub-Divisional Magistrate, Sada Ram, was sent for in order to record the dying declaration. On his arrival, Sada Ram recorded Tribeni Sahai's dying declaration, the third in the series. Tribeni Sahai was thereafter taken to the Mission Hospital at Barielly but he succumbed to his injury at 8.30 p.m. on the 28.\n13. In the meanwhile, Yogendra Sharma had commenced the investigation. He went to the house of Tribeni Sahai and informed the Superintendent of Police, Budaun, on trunk telephone about the occurrence. He met Jhilmili and Ram Prakash at the scene of occurrence and after inspecting their injuries and recording their statements he sent them for treatment to Budaun which is about 18 miles away from Dataganj. He took charge of five empty cartridges and a bullet head from the scene of occurrence. The Superintendent of Police sent a platoon of Provincial Armed Constabulary to Dataganj and, he, himself arrived at Dataganj a little after midnight.\n14. Dr. Kohli's house is alleged to have been searched at night but he could not be found nor was any incriminating article discovered. At about 2.30 a.m. the same night, the Investigating Officer is alleged to have arrested Dr. Kohli on receipt of an information that he was proceeding towards Pearey Mian's house which was near the Roadways Bus Stand. Dr. Kohli was taken to his house and it is alleged that his wife produced his licensed revolver from inside the Niwar of a cot. The Investigating Officer opened the chamber of the revolver and found that it was loaded with three live cartridges and was emanating the smell of a freshly fired bullet. Banney Khan was arrested at 5 a.m. on the 28th Balak Ram's house was searched but he could not be found. On the night between the 27th and 28th May, eleven persons were arrested by the Investigating Officer apart from Dr. Kohli, Banney Khan and Kailash. Those persons were arrested on information given by one Abdul Rahman that they were involved in a conspiracy to commit the murder of Tribeni Sahai.\n15. Balak Ram, Nathoo and Pearey Mian surrendered respectively on 29th May, 7th June and II th June. On 1st June Balak Ram's father surrendered in the court of the Judicial Magistrate a licensed automatic Pistol belonging to Balak Ram.\n16. The postmortem examination on Radhey was performed by Dr.A. S. Gupta on 28th May. He found a circular lacerated wound 1/2x 3/10\" cavity deep on the posterior axillary line on the left side of the axillary pit and a confusion on the right side of the chest. Dr. Gupta recovered a bullet from Radhey's body.\n17. The postmortem on the dead body of Tribeni Sabai was performed by Dr. S. Mitra on 29th May. He found on the dead body a gun shot wound 1C x 1:C chest cavity deep below the right scapular region.\n18. The injuries of Jhilmili and Ram Prakash were examined by Dr. R. C. Bansal of the District Hospital, Budaun on 28th May. He found on the person of Jhilmili a fire-arm wound of entry on the left thigh and a wound of exit on the same thigh. On the person of Ram Prakash was found a superficial burn 1\" x 1\" on the right side of the abdomen.\n19. The licensed revolver of Dr. Kohli, the automatic pistol of Balak Ram, the bullet which was recovered from the dead body of Radhey and the five empty cartridges as well as the bullet head recovered from the scene of occurrence were sent by the Investigating Officer for ballistic tests to the Scientific Section C.I.D., Lucknow. The ballistic expert, Shyam Narain, opined that the bullet recovered from Radhey's body was fired from Balak Ram's pistol but that the bullet seized from the scene of occurrence was fired from some other weapon.\n20. The defence of the appellants, broadly, was that they were falsely implicated on account of political rivalry. They contended that the witnesses had given false evidence against them either because they were friends or relatives of Tribeni Sahai or because of the pressure exerted on them by the police at the instance, partly, of Tribeni Sahai's brother Radhey Shyam, who was the Deputy Inspector General of Police and a Member of the Vigilance Commission, U.P.\n21. Balak Ram pleaded alibi saying that he was at Lucknow from May 25. He led evidence in support of his plea of alibi, Nathoo admitted that he was related to Balak Ram but contended that he was contesting the election to the membership of the Town Area Committee as an independent candidate. He also pleaded alibi saying that he had gone to Chandausi on the morning of 27th and returned to Dataganj on May 29. He stated that he wanted to surrender earlier but being informed that Radhey Shyam, D.I.G., had issued orders for shooting the accused, if found, he could not surrender till June 7. Dr. Kohli admitted that he was the President of the local unit of the Jan Sangh, but denied that there was any personal enmity between him and Tribeni Sahai. He denied that he was arrested at about 3.30 a.m. on the 28th May or in the circumstances alleged by the Investigating Officer that his revolver was handed over by his wife. He contended that while he was closing- his clinic at about 10.30 p.m. on the 27th he was taken by a constable to the police station on the pretext that he was wanted by the Station House Officer. While he was in detention at the police station, the Station House Officer went to his house and obtained his revolver from his wife. According to Dr. Kohli, Dharma Pal, Raiendra Kumar Misra and two lawyers, Nawal Kishore and Sultain Ahmed came to the police station and had a long meeting with the Investigating Officer at about 3 p.m. on the 28th. Those under arrest were thereafter sent to Budaun.\n22. The two brothers Banney Khan and Pearey Mian admitted that a civil litigation was pending between them and Tribeni Sahai on the date of occurrence. Banney Khan admitted that he was a candidate for election to the membership of the Town Area Committee as a nominee of Congress (0). He stated that he was the Vice-Chairman of the Town Area Committee since 1937 and claimed that enemy candidate he had supported during the past many years for the Chairmanship of the Committee had been successful. He alleged that he was implicated at the instance of Dharam Pal who was contesting the Chairmanship on the ticket of Congress (R). Like Dr. Kohli he also contended that he was sent to Budaun at about 3.30 p.m. on the 28th.\n23. Each of the appellants denied knowledge of the order passed by the District Magistrate under section 144, Criminal Procedure Code and each one denied his presence in the procession which was taken out at about 6.30 p.m. on the 27th. Their presence in the later procession and their participation in the incident under inquiry' was of course denied by them.\n24. The learned Sessions Judge, Budaun, came to the conclusion that none of the eye-witnesses including the injured Jhilmili and Ram Prakash could be relied upon unless independent corroboration was ,available to their testimony.\n25. The learned Judge took the same view about the dying declarations alleged to have been made by Tribeni Sahai.\n26. Except for Balak Ram, the other accused were acquitted by the learned Judge as independent corroboration was not available to the evidence of the witnesses in regard to the part played by those accused. In so far as Balak Ram is concerned, the learned Judge convicted him for the murder of Tribeni Sahai and Radhey on the view that the evidence of the eye-witnesses and the dying declarations of Tribeni Sahai were corroborated by the opinion of the Ballistic Expert, Shyam Narain, who stated that the bullet recovered from the dead body of Radhey was fired from Balak Ram's pistol. The learned Judge further held that it was not clear as to who else were members of the unlawful assembly responsible for the murders of Tribeni Sahai and Radhey but since it was clear that there was in fact an unlawful assembly, Balak Ram was liable to be convicted under section 148, Penal Code. The learned Judge acquitted Balak Ram of the charge u/s. 307 read with s. 149 in regard to the injuries received by Jhilmili and Ram Prakash but he convicted him u/s. 337 read with s. 149 on the ground that his reckless act in firing from his pistol had endangered human life and had caused hurt to Jhilmili and Ram Prakash.\n27. Apart from the injured Jhilmili (P.W. 1) and Ram Prakash (P.W. 11), the prosecution examined Rajendra Kumar Misra (P.W. 13) and Aryendra Nath (P.W. 19) as eye-witnesses to the occurrence. Rajendra Kumar Misra who lodged the First Information Report at the Dataganj police station is a close relative of the deceased Tribeni Sahai and was at the relevant time the President of the local unit of Congress (R). The High Court therefore felt that he could not be regarded as an \"entirely independent witness'. But his evidence was accepted by the High Court for the, reason that it was \"corroborated by the first information report lodged by him promptly\". The prompt, lodgment of the F.I.R. was in turn held to be corroborated by the evidence of Head Constable Jai Prakash (P.W. 2) and the Investigating Officer Yogendra Sharma (P.W. 24). The High Court accepted the evidence of Jhilmili and Ram Prakash who, according to it, were independent witnesses. The two witnesses were said to corroborate each other individually and together they were held to corroborate the evidence of Rajendra Kumar Misra. Aryendra Nath is the sister's son of Dharam Pal who, on the ticket of Congress (R) was contesting the election to the Chairmanship of the Town Area Committee. The High Court therefore held that he could not be considered as an independent witness but his evidence was accepted as it was in \"full accord' with that of Jhilmili and Ram Prakash. Finally, the High Court accepted the three dying declarations of Tribeni Sahai as true and voluntary observing that they provided full corroboration to the testimony of Jhilmili, Ram Prakash and Aryendra Nath In the result the High Court accepted the prosecution case in its entirety except in regard to Kailash and convicted Balak Ram, Nathoo, Dr. Kohli and Banney Khan as mentioned earlier.\n28. Broadly, the two questions which arise for consideration are whether the High Court was justified in upholding the conviction of Balak Ram and the sentence of death imposed on him by the Sessions Court and secondly whether the High Court had good and sufficient reasons for interfering with the order of acquittal passed by the Sessicns Court in favour of Nathoo, Dr. Kohli and Banney Khan. Our approach to these two questions has to be basically different because whereas in regard to Balak Ram there is a concurrent finding of fact that he was responsible for committing the murders of Tribeni Sahai and Radhey and for causing injuries to Jhilmili and Ram Prakash, in regard to the other three appellants the two courts have differed, the High Court having interfered with the order of acquittal passed by the trial court in their favour.\n29. The powers of the Supreme Court u/art. 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. In Ramabhupala Reddy and Ors. v. The State of Andhra Pradesh, ( A.I.R. 1971 S.C. 460) 1970 Indlaw SC 435 it was observed that it was best to bear in mind that normally the High Court is a final court of appeal and the Supreme Court is only a Court of special jurisdiction. This Court would not therefore re-appraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted. In dealing with the appeal filed by Balak Ram we shall have to keep this position in mind.\n30. In so far as Nathoo, Dr. the question for consideration in interfering with the order the Sessions Court. In Ram this Court held after a review Court has set aside an order appeal u/art. 136 will Kohli and Banney Khan are concerned is whether the High Court was justified of acquittal passed in their favour by Jag and Ors. v. The State of U.P. ([1974] 4 S.C.C. 201) 1973 Indlaw SC 220 of previous authorities that if the High of acquittal the Supreme Court in an examine the evidence only if the High Court has failed to apply correctly the principles governing appeals against acquittal. It was held in that case that the powers of the High Court are as full and wide in appeals against acquittal as in appeal against conviction but, amongst things, if two views of the evidence are reasonably possible the High Court ought to interfere with the order of acquittal passed by the trial court.\n31. It would be convenient to deal first with the appeals filed by Nathoo, Dr. Kohli and Banney Khan who have the benefit of an order of acquittal passed in their favour by the Sessions Court. For a proper understanding of the case it is necessary to have a glimpse of the political canvass of Dataganj. The deceased Tribeni Sahai, Dharam Pal who was contesting the election to the Chairmanship of the Town Area Committee, the 79 year old Banney Khan and Dr. Kohli who was the President of the Jan Sangh unit were keyfigers in the Datagani Politics. The story of their doings is the not un- familiar tale of floor-crossing and internal splits. In the Assembly election of 1967 an independent candidate- incidentally, a retired District Judge-won on the support of other political parties though some of these parties had put up their own candidates. The Congress (R) candidate supported by Tribeni Sahai lost that election and the Judge won. In the election to the Town Area Committee held in the same year. Tribeni Sahai supported a Jan Sangh candidate as against Dharam Pal who was put up by the Congress. Dr. Kohli, though an ardent Jan Sanghite, supported Dhram Pal.\n32. In the 1969 mid-term poll Tribeni Sahai won as a Congress candidate, this time with the help of Dharam Pal. The Judge, Harish Chandra Singh. who as a Bhartiya Kranti Dal candidate had the support of Dr. Kohli, Banney Khan and others lost the election.\n33. Coming nearer the date of occurrence, the Town Area Committee elections were to be held in Dataganj on May 30, 1971. Dharam Pal, a Congress (R) candidate for the Chairmanship of the Committee had the support of Tribeni Sahai while Balak Ram, now under death sentence, who was a Congress (0) candidate for Chairmanship had the support of other parties. Dr. Kohli and Banney Khan were partisans of Balak Ram. Banney Khan was himself a Congress (0) candidate for the membership of the Committee. The Congress (R)and Congress (0) had each fielded 10 candidates for the 10 Committee seats. Nathoo, aaprently an independent,candidate, was in fact a dummy candidate put up by Congress (0) in order to provide for the possible disloyalty of its official candidate. Nathoo is Balak Ram's brother-in-law.\n34. Of Banney Khan it is said that since 1937, candidates put up by him for Chirmanship of the Town Area Committee had won consistently, no matter which party they belonged to or which party the rival candidates belonged to- In 1948 Banney Khan had supported 'Tribeni Sahai for Chairmanship and the latter won. Banney Khan. was himself the Vice-Chairman of the Committee since 1937. Dharam Pal who was the Chairman of the Committee since 1953 had the unwavering support of Banney Khan through all these years. They fell out on the eve of the 1971 elections.\n35. Political differences evidently polluted the social life of the Dataganj citizens. They carried those differences into their private lives and their social relationship was marked by a series of quarrels and court cases. A civil suit was filed in 1965 by Banney Khan and his brother Pearey Mian against Tribeni Sahai and others for a permanent injunction restraining them from realising Tehbazari dues from the market. This six year old suit was, not surprisingly, pending on the date of the occurrence. A criminal case was then filed against Banney Khan and Pearey Mian under section 307, Penal Code, for a murderous assault on one Suleman whose brother Mohammad Sultan. Vakil was an active follower of Tribeni Sahai. The case against, Banney Khan was later withdrawn and Pearey Mian was acquitted. In 1967-68 Tribeni Sahai, had filed a case under section 120-B, Penal Code, charging Dharam Pad, Pearey Main and others for conspiracy to murder him. In those days Dharam Pal belonged to a rival party., In 1970 Tribeni Sahai had filed a similar case against Pearey Main and others accusing them of a conspiracy to murder him. On August 3, 1970 Pearey Mian had lodged report against Tribeni Sahai and his bodyguard Radhey under section 394, Penal Code. It is obvious that a point to gain on the political plane was enough excuse for all, these gentlemen, to involve one another into grave charges like murder and dacoity. Dharam Pal who was strongly supported by Tribeni Sahai in the 1971 elections for the Chairmanship of the Town Area Committee has admitted in his evidence that in earlier days Tribeni Sahai used to harass him with false cases. In a trial against two.persons called Tullan and Beni under section 394 of the Penal Code, Tharain Pal had deposed as a defence witness that Tribeni Sahai had falsely implicated those persons as they were his supporters. Beni, in fact, was in Dharam Pal's employment as a driver, It seems that the two accused were initially convicted but were acquitted in appeal. Most of the cases described above seem to have been politically motivated. The fact that such serious charges lacked a true foundation was irrelevant to the way of life which these gentlemen bad adopted.\n36. It is not surprising, though it is to be regretted, that in the din of these political and personal feuds the witnesses had a heavy commitment to factitious loyalties. When key witnesses deny the obvious, pretend ignorance of facts within their special knowledge and give free play to their imagination on crucial matters, pursuit of truth, becomes a wild goose chase. An the befogged trial Judge has then to discharge the unenviable duty of seeing and hearing such witnesses.\n37. Take Jhilmili and Ram Prakash. The fire-arm injuries on their person establish their presence at the scene of offence but to be present is only to have an opportunity to witness. Presence does not, ensure truthfulness nor is it any insurance against the common human failing to involve the innocent along with the guilty. The presence of Jhilmili and Ram, Prakash may indeed discredit them if they were components of the procession which marched towards Tribeni Sahai's house. The question which requires examination is whether, as contended by the defence, they were members of the procession and were injured accidentally when the processionists opened fire or whether, as contended by the prosecution, they received injuries when as dis- interested bystanders they rushed to protect Tribeni Sahai.\n38. It is surprising that the First Information Report lodged by Rajendra Kumar Misra does not refer to the presence of either Jhilmili or Ram Prakash. Rajendra Kumar claims to have seen the incident from a close angle and he has mentioned in the Report the names of persons who had seen the occurrence Jhilmili and Ram Prakash were admittedly injured in the firing incident and witnesses have uniformly stated that there was enough light at the scene of occurrence. Jhilmili had received a through and through bullet injury on the thigh while Ram Prakash had received a firearm burn on his abdomen. The question is not of the routine variety and one cannot brush aside the failure of the first informant to refer to the two witnesses by saying that he may not have noticed their presence. The point of the matter is whether, having seen them, he dropped them deliberately as they were on the side of the accused.\n39. Rajendra Kumar Misra is himself a relative of Tribeni Sahai, being the brother-in-law of Radhey Shyam Sharma, the brother of Tribeni Sabai. In the F. I. R. Rajendra Kumar mentioned that Loki, Ganga Ram and Aryendra had seen the incident.\n40. Ganga Ram was a Bataidar of Tribeni Sahai and sometimes he used to live with Tribeni Sahai. Arvendra is the sister's son of Dharam Pal who as a Congress (R)candidate was contesting the election for the Chairmanship of the Committee with the active support of Tribeni Sahai. Neither Ganga Ram nor Loki was examined by the prosecution and the learned public prosecutor stated that Loki had been won over by the defence. Such a bald assertion, unsupported by any data, is insufficient to absolve the prosecution from its duty to examine wit nesses whose evidence is necessary for upholding its case.\n41. A large number of persons had gathered at the scene of offence and the Investigating Officer, Yogendra Sharma, himself arrived within a short time. Arrangements were made to take Tribeni Sahai and Radhey to Budaun in two cars but no notice whatsoever was taken' of the presence of Jhilmili and Ram Prakash or of the injuries received by them though they were crying in pain. Yogendra Sharma says that he asked a constable to take them to the police station with instructions that they should be taken to the hospital thereafter. As a matter of normal routine, they should have been taken to Budaun along with Tribeni Sahai and Radhey especially when the two cars of Dharam Pal and Rajendra Kumar were so readily available. If that was thought unnecessary steps should have been at least taken to send them to the local dispensary. Instead, they were first sent to the police station, then to the dispensary, back to the police Station and ultimately to Budaun hospital.\n42. During the trial in the Sessions Court, Jhilmili's sons, Chotey and Chironji, were sitting in the group interested in the accused. Besides, Jhilmili's son-in-law Sia Ram and another relative Ved Prakash were contesting the election for the membership of the Committee as candidates of Congress (0). Jhilmili stated that he did not know which party Sia Ram and Ved Prakash belonged to. In fact, he pretended ignorance of any such political parties as Congress (R) and Congress (0). He had voted for Sia Ram and Ved Prakash but said that he did not know what symbols were allotted to them.\n43. Jhilmili is a secretive witness for, though his son got employment in the Provincial Armed Constabulary after the incident, he denied all knowledge about it and added that he was not even aware that the son was posted at Kanpur. He also denied that he had opened a bank account two months after the incident with an initial deposit of Rs. 1000/- and stated falsely that the account was opened prior to the incident with a deposit of Rs. 600. He stated that he had deposited a sum of Rs. 50 only in that account after the incident but, a true copy of his bank account shows that he had deposited a sum of Rs. 500 in November, 1971. Jhilmili was asked whether he knew that Dr. Kohli was associated with the Jan Sangh and his answer was that since he had not heard the name 'Jan Sangh', he could not speak of the association.\n44. The manner in which Jhilmili claims to have received injuries is difficult to accept. He says that he rushed to the rescue of Tribeni Sahai after Balak Ram had fired a shot. The procession consisted at least of six persons and an open exhortation is alleged to have been given by Dr. Kohli and others that Balak Ram should fire. It is im- possible that Jhilmili could have jumped into the firing range.\n45. A large part of the criticism in regard to Jhilmili's evidence holds good in regard to Ram Prakash also. Tribeni Sabai had filed a prosecution against Ram Prakash's father and others for conspiracy to murder him. Tribeni Sahai had also instituted a case under section 107, Criminal Procedure Code, against Ram Prakash's father and others. Ram Prakash surprisingly denied knowledge as to whether the first mentioned case was pending or not. He admitted that he was standing at the scene of offence for quite some time after the- incident and that he did not tell any one including his mother that his injuries should be attended to. He saw Yogendra Sharma arrive but did not complain to him about the injury which he had received. Ram Prakash, like Jhilmili, made a fanciful assertion that Dr. Kohli, Banney Khan and Pearey Man shouted together in one voice asking Balak Ram to open fire. Realising the infirmity of that assertion, Ram Prakash made a funny embellishment : \"Banney Khan bid initially started asking Balak '.Ram earlier than others.\n46. Banney Khan accused had shouted the word Balak Ram before other accused started saying. Then the sentences were completed by all of them. All the three accused had said the same thing i.e. 'Balak Ram Maro Goli\"'.\n47. The learned Sessions Judge was right for some of these reasons in holding that the evidence of Jhilmili and Ram Prakash could not be accepted without independent corroboration. The High Court treated them as independent witnesses and held that they had corroborated each other.\n48. In fact. the High Court went a step further and held that these two witnesses corroborated Rajendra Kumar Misra also.\n49. Rajendra 'Kumaz is the brother-in-law of Tribeni Sahai's brother Radhey Shyam Sharma who at the relevant time was stationed at Lucknow .as Deputy Inspector General of Police and as a Member of the vigilance Commission. The trial court observed rightly that the witness ,could not be disbelieved merely because he was related to Tribeni Sahai.\n50. But it gave various reasons for not accepting his evidence at its face value.\n51. In the first place, the omission to make a reference to the presence ,of Jhilmili and Ram Prakash in the F. 1. R. was not an oversight on the part of Rajendra Kumar. The omission was deliberate because it was not then known whether they would support the prosecution case. Jhilmili has stated in his evidence that he had seen Rajendra Kumar coming from the western side at the time of the incident.\n52. Apart from this, the conduct of RaJendra Kumar is highly unnatural. After the processionists dispersed and ran away he did not even try 'to find out what injuries Tribeni Sahai and Radhey had received and whether they required medical attention. He claims to have seen The whole incident but.\n53. On his own showing, as a mute, silent spectator He raised no alarm. he did not go near any of the injured persons and made a straight dash for the police station. There are also serious discrepancies as regards the spot from which he claims to have seen the incident. He says that he saw one incident from three or four paces east of the north-western corner of- Aryendra's house. The particular spot is said to be about 1 8 paces from the scene of occurrence. According to Jhilmili, Ranjendra Kumar had come only as far as the house of one Dr. Suresh. Paragraph 5 of the Notes of Inspection made by the learned Sessions Judge shows that a person standing in front of Dr. Suresh's house could not re- cognise persons standing at the scene of occurrence. At the time ,the incident started, Rajendra Kumar claims to have been sitting at his Baithak. But neither in the F. 1. R. nor in his police statement did be mention where exactly he was at the time when the commotion started. In the F. 1. R. he alleged that Pearey Mian, Banney Khan and Kailash were also among the assailants but he admitted in the Sessions Court that these persons had not participated in the actual assault. It is significant that the witness had not mentioned Banney Khan's name before the Investigating Officer at all in connection with this incident and was unable to give any satisfactory explanation of this omission.\n54. We do not propose to dissect the question whether the F. 1. R. was lodged immediately as claimed by Rajendra Kumar or whether it was lodged on the next day as contended by the defence. The better view would, however, seem to be that it was lodged soon after the incident though perhaps not as immediately after the incident as Rajendra Kumar claims. The Sessions Judge has expressed his finding with welcome restraint in saying that the case of the defence that the F. I. R. was not filed at the time at which it purports to have been filed cannot be said to be \"wholly unfounded.\"\n55. That leaves for consideration the evidence of Aryendra who also claims to be an eye-witness. He is the sister's son of Dharam Pal who was contesting the election for the Chairmanship of the Committee. Dharam Pal has admitted in his evidence that he had brought up Aryendra and that he was living with him for about 17 or 18 years after the death of his father- Aryendra is said to have shifted to the house of his father-in-law because his mother-in-law was all alone in the house. That house occupies a vantage position being quite near the scene of occurrence In the first place, there is no reliable evidence to show that Aryendra was living in the house of his father-in-law since March, 1970 as alleged by him. After leaving Dharam Pal's house he admittedly shifted to the house of one Umrao Lal Halwai but he says that he lived in the house of that man for two or three months only. The learned Sessions Judge has referred to the voters' lists and other documents to show that it was doubtful whether Aryendra had left the Halwai's house and was living in the house of his father-in- law at the material time.\n56. Aryendra claims to have been sleeping on the eastern roof of his father-in-law's house. It was common ground that if he were sleeping on the western side, which was a more convenient place, he could not have seen the incident. He explained this by saying that there used to be a dog on the western roof to keep watch and the eastern roof had no regular staircase making it difficult for the dog to get on there. When his statement was recorded by The Sub- Divisional Magistrate under section 164 of the Criminal Procedure Code Arvendra stated that Pearey Mian. 'Banney Khan. Dr. Kohli, Balak Ram, Kailash and Nathoo were \"also\" in the His case then was that there were others also in the procession. In fact. he had stated then that 8 or 10 persons had stood near thedoor of the house of one Uma Shanker, a statement which he falsely denied to have made. It is not without relevance that as many as 1 1 others were arrested on the night of the incident for conspiracy to murder Tribeni Sahai. Finally, Aryendra has also like the other eye-witnesses given the incredible version that Banney Khan, Kohli and Pearey Mian exhorted Balak Ram in one voice to open fire.\n57. It cannot be overlooked that the statements of Jhilmili, Ram Prakash and Aryendra were recorded under section 164, Criminal Procedure Code, in June 1971, soon after the incident. The Investigating Officer says that he got the statements recorded by way of precaution. That could be true and it would be wrong to find fault with the Investigating Officer merely because he got the statements of these witnesses recorded under section 164. Nor can the evidence of a witness be discarded for the mere reason that his statement was recorded under section 164. But the High Court overlooked that the evidence of witnesses whose statements are recorded under section 164 must be approached with caution. Such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version. A prosecution for perjury could be the price of that freedom. It is, of course, open to the Court to accept the evidence of a witness whose statement was recorded under section 164, but the salient rule of caution must always be borne in mind.\n58. That is all the more necessary when almost all the eye. witnesses are subjected to this tying-up process. Even Aryendra, the sister's son of Dharam Pal, was not thought to be above suspicion.\n59. We have indicated broadly some of the more serious infirmities in the evidence of the eye-witnesses in order to- show that the Sessions Court was justified in taking the view that it was unsafe to act on their evidence without corroboration. Ignoring the impact of these infirmities, the High Court erroneously treated the witnesses as inde- pendent and held that they had corroborated one another.\n60. None of the four eye-witnesses was true enough to afford corroboration to the evidence of others. Corroboration in such cases must be forthcoming from an independent source.\n61. The prosecution relied very strongly on the three dying declarations alleged to have been made by Tribeni Sahai.\n62. The first of these was made to Dharam Pal, the second to the Investigating Officer Yogendra Sharma and the third was made in the Budaun hospital before the Sub-Divisional Magistrate.\n63. It is necessary to examine closely the circumstances attendant upon these dying declarations.\n64. Not much reliance was placed before us on the first two dying declarations and rightly so. In regard to the oral dying declaration alleged to have been made by Tribeni Sabai to Dharam Pal immediately after the shooting outrage, neither Jhilmili nor Ram Prakash who were admittedly present at the scene of occurrence all through say anything about that dying declaration. Even Aryendra who is Dhliaram Pat's sister's son did not say that Tribeni Sahai made a dying declaration to Dharam Pal. Surprisingly, though the investigation was otherwise prompt, the statement of Dharam Pal was recorded by the investigating Officer on June 2, 1971 which was six days after the incident had taken place.\n65. The second dying declaration is alleged to have been made to the Investigating Officer. Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigating Officer. Yogendra Sharma says that while Tribeni Sahai was lying in, a car at the scene of offence he made a statement implicating the accused. Yogendra. Sharma produced a true copy of an entry in his case diary stating that even as he was still in the car, he recorded the dying declaration in the case diary which he was carrying with him. It is difficult to appreciate why, if there was time enough to reduce the dying declaration into writing, Yogendra Sharma did not obtain Tribeni Sahai's signature or at least the signatures of any of the large number of persons who had surrounded the car. Rule 115 of the U.P. Police Regulations expressly enjoins the Investigating Officer to record a dying declaration, if at all, in the presence of two respectable witnesses and after obtaining the signature or mark of the declarant at the foot of the declaration.\n66. Besides, if the Investigating Officer was in such haste that he did not even think it proper to wait ,it the police station until the various columns on the first page of the F.I.R. were duly filled in, it is rather difficult to believe that seized by such a pressing sense of emergency,, he would take the case diary with him on the off chance that a dying declaration may be in the offing.\n67. The dying declaration (Ex-Ka-47) made by Tribeni Sahai at the Budaun hospital was recorded by the Sub-Divisional Magistrate Mr. Sada Ram at 11.50 p.m. Learned counsel appearing for the appellants submitted that this dying declaration is a fabrication and must therefore be discarded. Were not inclined to go that far. The circumstances surrounding the dying declaration, though uninspiring,are not strong enough to justify the view that officers as high in the hierarchy as the Sub-Divisional Magistrate, the Civil Surgeon And the, District Magistrate hatched a conspiracy to bring a false document into existence. The Civil services have no platform to controvert allegations, howsoever grave and unfounded. It is therefore, necessary that charges calculated to impair their career and character ought not to be accepted except on the clearest proof. We are not prepared to hold that the dying declaration is a fabrication.\n68. All the same, one must face the question whether, in the circumstances of the case, it is safe to act on the uncorroborated dying declaration of Tribeni Sahai.. The evidence of Dr. R. C. Bansal who was the Medical Officer of the District Hospital, Budaun, shows 3-192 Sup.Cl/75 that Tribeni Sahai was in a critical condition when he reached the hospital. Before the dying declaration was recorded, an attempt was made to give him saline but even after making incisions on the hands and a leg, the attempt did not succeed. Dr. Bansal has stated that Tribeni Sahai was in \"severe pain\", that he was under a \"great shock\", that there was \"profuse bleeding\" from the injury, that his respiration was poor, that his pulse was \"feeble and thready\" and that the \"blood pressure was not recordable\".\n69. Dr. Bansal explained that by \"shock\" he meant \"a state of profound depression of the vital processes of the body resulting from injury.\" It taxes one'* ordinary experience of human affairs to accept that Tribeni Sahai thus tormented, was in a fit mental and physical condition to make a volitional statement after he had reached the Budaun hospital.\n70. Quite apart from this consideration, the dying declaration can have hardly any evidential value because Tribeni Sahai was in the midst of friends and admirers right since the time of the incident until the dying declaration was recorded. Dharam Pal was in his constant company and it is not unlikely that names of political opponents like Balak Ram, Dr. Kohli and Banney Khan were freely bandid about. The dying declaration could then be-naturally influenced by the opinion and inferences of close friends like Dharam Pal. If Tribeni Sahai were to go on record as a person of unquestioned rectitude it might, perhaps, have been possible to approach the dying declaration a little differently. But the long lists of cases which he had filed against the political opponent's shows that he had no compunction in pointing an accusing finger at innocent persons. Dharam Pal himself was a victim of such machinations and even he conceded that Tribeni Sahai used to harass him by making false charges when he was in the opposite camp. Therefore, we find it impossible to accept the conclusion of the High Court that : \"All the three dying declarations of Sri Tribeni Sahai provide full corroboration to the testimony of the two injured eyewitnesses and Aryendra that it was Balak Ram, who was responsible for the fatal injury to Sri Tribeni Sahai and that he fired instigated by Dr. Kohli, Pearey Mian and Banney Khan.\n71. The aforesaid discussion of the various items of evidence must at least yield the result that the conclusion to which the learned Sessions Judge came was a reasonable conclusion to come to. It cannot be denied that two views of the evidence are reasonably possible in regard to the participation of Nathoo, Dr. Kohli and Banney Khan. the High Court, therefore, ought not to have interfered with the judgment of the Sessions Court in their favour.\n72. A revolver was recovered from the house of Dr. Kohli at the time of his arrest on the night of the incident and it is said that the revolver emitted a foul smell. If anything, the evidence, of the ballistic expert Shyam Narain (P.W. 14) shows that none of the five empties recovered from the scene of offence could have been fired from Dr. Kohli's revolver, The expert was also unable to give a definite opinion that the bullet, Ex. 25, which was recovered from a drain near the scene of offence was fired from Dr. Kohlis revolver.\n73. In regard to Nathoo, he is not named in the dying declaration recorded at the Budaun hospital. What is more, his name which was first written towards the end of that dying declaration was subsequently scored off. Mr. Sada Ram, the Sub-Divisional Magistrate, says that he scored off Nathoo's name from the dying declaration because Tribeni Sahai did not say anything when Nathoo's name was read out that was fair of Mr. Sada Ram but when Nathoo scores one more point.\n74. The old Banney Khan is an old hand at politics. He was Vice-Chairman of the Town Area Committee since 1937 and even Dharam Pal has admitted that Banney Khan was a king maker.\n75. He was 79 years old on the date of the incident and the only evidence against him consists of that artificial assertion that he, Dr. Kohli and Pearey Mian exhorted Balak Ram with one 'Voice to shoot at Tribeni Sahai. Banney Khan's implication could reasonably be traced to the personal enmity between him and Tribeni Sahai.\n76. In the result the order of conviction and sentence passed by the High Court against Nathoo, Dr. R. P. Kohli and Mohammad Sayeed Khan alias Banney Khan is set aside and their appeals are allowed. Banney Khan is on bail and he need not surrender to his bail. Nathoo and Dr. Kohli shall be released forthwith.\n77. That leaves us for consideration the appeal filed by Balak Ram who has been found guilty by the Sessions Court as well as the High Court. Mr. Frank Anthony made an impassioned plea for his acquittal but we are unable to accept the submission of the learned counsel.\n78. It is urged that Loki and Ganga Ram whose names were mentioned in the F.I.R. were not examined and therefore an adverse inference should be drawn against the prosecution; that the relevant columns in the Inquest Report were deliberately left blank so as, to facilitate a manipulation of evidence, that the F.I.R. was ante-dated; that the site plan was deliberately drawn in a vague and general manner; that there was no immediate motive for the offence and that the High Court had failed to consider the evidence of the defence witnesses at all which it was its duty to consider in a reference under section 374, Criminal Procedure Code.\n79. The more important of these points stand answered by what we have already said while discussing the appeals of the other accused. But, it is necessary to add that in the first place, the other accused had the benefit of an order of acquittal passed in their favour by the, trial court and secondly we have only endeavored to indicate that since the view taken by the trial court was a reasonable view to take, the High Court ought not to have interfered with the judgment of acquittal.\n80. In regard to Balak Ram, there is a concurrent finding that the shot fired by him caused the death of Radhey and we see no reason for taking a different view. The evidence in regard to the part played by him is natural and consistent and is corroborated by the opinion of the Ballistic Expert.\n81. Such corroboration was lacking Is against others.The evidence of the Ballistic Expert shows that the bullet (Ex. 27) which was extracted from Radhey's body was fired from the pistol (Ex. 5) belonging to Balak Ram. Mr. Anthony made a severe attack on the evidence of the expert and in order to show infirmities in that evidence he read out to us various passages from \"The Identification of Firearms and Forensic Ballistics\" by Major Gerald Burrard; J. S.\n82. Hatcher's \"Text B ok of Firearms Investigation, Identification and Evidence\" (5th.1946)\" and Modi's \"Medical Jurisprudence and Toxicology.\" We have considered these submissions but are unable to see a reason strong enough to justify a reversal of the concurrent view taken by the two courts. The normal rule that this Court does not reappraise evidence in such cases must apply.\n83. Stated briefly, Mr. Anthony's contention is that the bullet (Ex. 25) which was recovered from the scene of offence must have been the one which after hitting Tribeni Sahai made an exit wound not since that bullet, according to the ballistic expert, could not have been fired from Balak Ram's pistol (Ex. 5), he cannot be held guilty for causing the death of Tribeni Sahai. Mr. Anthony says that the evidence of the eye witnesses stands falsified by the evidence of the expert. The difficulty in accepting this contention is that there is no warrant for saying that the bullet Ex. 25 must be the one which passed through Tribeni Sahai's body.\n84. Mr. Anthony spent considerable time in showing that the striations on the bullet (Ex. 27) which was extracted from Radhey's body are of a different pattern from the striations on the test bullets fired from Balak Ram's pistol. The evidence of the expert has been closely considered by the High Court and we consider their finding on this aspect as open to no exception.\n85. Balak Ram examined two witnesses, Shiv Govind Singh (D.W.7) and Udainarain Singh (D.W. 8) to establish his plea of alibi but that evidence Was rightly rejected by the trial court. It is in the least degree likely that Balak Ram who was contesting the election for Chairmanship of the Committee would be away from the hubbub of politics on the eve of elections. All the same, the High Court ought to have considered that evidence for what it was worth. In a re- forence for confirmation of the death sentence under sec. 374, Criminal Procedure Code, the High Court must examine the entire evidence for itself, independently of the Session, Court. (See Bhupendra Singh v. The State of Punjab, ([1968] 3 S.C.R. 404 1968 Indlaw SC 387), and Jamman and Ors. v. The State of Punjab. Fortunately, the failure of the High Court to examine the defence evidence has led to no miscarriage of justice.\n86. Balak Ram's conviction must, therefore, stand. On the question of sentence, there is no reason for interference. Balak Ram was carrying a pistol and he fired from that pistol without any provocation either from Tribeni Sahai or from Radhey. Neither of them was armed. not even with a walking stick, and all that Tribeni Sahai did was to ask the processionists to desist from shouting vulgar slogans.\n87. Politics may or may not be a clean game but no court can suffer with equanimity such flagrant defiance of law by members of political parties, whatever their colour or creed. They must know that it will not pay to carry pistols in processions for being used as weapons of offence against political rivals. Accordingly, we confirm the order of conviction and the various sentences including the sentence of death imposed on Balak Ram and dismiss his appeal.\n"}
+{"id": "YUPnmbpD0e", "title": "", "text": "Bhagwan Singh and Others v State of Madhya Pradesh\nSupreme Court of India\n\n22 March 2002\nCr.A. No. 1272 of 1999, Dt. 22 March 2002.\nThe Judgment was delivered by SETHI, J. :\n1. The appellants, along with two others, were charged under Sections 148, 302, 336, 337, 427 read with S. 149 of the \n Indian Penal Code by the Court of Additional Sessions Judge, Burhanpur and after trial acquitted by the trial Court vide its judgment dated 24th June, 1987. The appeal filed by the State against the order of acquittal was allowed by the High Court vide the judgment impugned convicting the appellants for offence under Section 302/149 and sentencing them to life imprisonment besides paying a fine of Rs. 5, 000/- each in default of which they have been directed to suffer further rigorous imprisonment for one year each. They were also convicted for the commission of offence under Section 148, I.P.C. and sentenced to rigorous imprisonment for one year each.\n2. Not satisfied with the judgment of the High Court, the appellants have preferred this appeal u/s. 379 of the Code of Criminal Procedure read with Order XXI, Rules 12 to 29 of the Supreme Court Rules, 1966.\n3. According to the prosecution there was a dispute between Amarnath (deceased) and Ram Singh, appellant with respect to four mango trees grown on Khasra No. 212 situated at Village Sarai. Litigation was pending between both the parties and police had registered several cases u/ss. 147 and 145 of the Code of Criminal Procedure. According to the FIR recorded on the statement of PW-22 Jagdish that he along with his family members was watching TV at his house. Amarnath and Hari Ram were also there. When he was about to start his meals, they heard the cries of \"Bachao-Bachao\"(save-save) raised by Surender. They saw all the 16 accused persons assaulting Surender with lathis, Dhariya, Khartaliya and Pata. When Hari Ram went to intervene, the accused attacked him. Similarly when Amarnath went forward he was also assaulted. Ram Singh instigated other accused persons to finish Amarnath saying that as he was responsible for everything, he should be finished today. Thereafter Ram Singh, Bhagwan Singh, Sardar Singh, Roop Singh and Dhayansingh attacked Amarnath with lethal weapons in their possession. Witness rushed forward to save his father and was also attacked by the aforesaid accused persons. He ran away to the house to save himself. The accused then threw stones on the house which broke roof tiles, doors and also damaged the walls. After registration of the FIR, the Investigating Officers sent the injured, namely, Surender and Hari Ram to the District Hospital, Khandwa where they died the same night, the information of which was sent to the police by Hospital Authorities. Mukesh was also found injured and sent for treatment to the hospital. In the occurrence three persons, namely, Surender, Hari Ram and Amarnath were murdered and some of the witnesses injured.The trial Court acquitted the accused persons on finding that appellants Bhagwan Singh, Ram Singh, Roop Singh had received injuries and\n\"seeing danger of life and other accused utilised right of private defence and there aggressors died and rest aggressors fled away. Hence the act of the accused fall within the definition of right of private defence under S. 100, IPC and their act is not punishable according to provisions of Section 96, IPC\". The trial Court further held,\" I find that prosecution failed to prove case beyond reasonable doubts and accused committed murder of deceased Amarnath, Surender and Hariram and caused injuries to Mukesh witness and damaged house of Jagdish after throwing stones\"\n4. The High Court rightly found that the trial Court had been led astray by the simple fact that the injuries on the person of the accused had not been explained by the prosecution witnesses. After referring to number of judgments of this Court, the High Court concluded :\n\"In view of what we have discussed about the circumstances of the case, the injuries on the persons of the three deceased, the sequence in which the witnesses reached the spot of crime, minor nature of the injuries on the persons of the accused except one injury on the head of Bhagwan Singh and the background and also the sequence in which the deceased were attacked, rules our any possibility of the accused having attacked the three deceased in exercise of self-defence of any of them. It is clear that the accused persons were the aggressors.\"\n5. After critically and minutely examining the evidence on record, the High Court found that the presence of eyewitnesses, namely, Kiran (PW-7) Mukesh (PW-12) and Jagdish (PW-22) cannot be doubted. In this regard the Court held :\n\"A striking feature of this case is that on of the accused Sardarsingh lodged a report Ex. D-5 at 11.30 p.m. that 4 persons i.e. Amarnath, Jagdish, Surender and Hariram were assaulting Bhagwansingh and Roopsingh. Even here Jagdish witness was shown present and there was no mention of Ramsingh accused. Then in cross-examination to these three eyewitnesses the suggestions have been that the deceased and the witnesses along with others assaulted the accused at the house of Ramsingh. The trial Court has ignored this trend of cross-examination on behalf of the accused in appreciating whether the witnesses were present at the scene of violence. In the facts and circumstances of a given case, the trend of cross-examination by defence or prosecution witness can provide support to the inference if some accused and witnesses were present at the scene of crime. The most striking feature is the fact that such a report was recorded by the police and they at one proceeded to the scene of crime. There is no mention in Ex. D-5 if any serious injury was given to Sardarsingh or Roopsingh and whether any weapon has been used or only fists blows were being exchanged. Still the police rushed to the scene of crime at the night. This is rare. This indicates that there was some under current working between the police and the accused persons. The police could not but have recorded the Dehati Nalishi on finding one person died and 2 in the process of dying with fatal injuries. This is followed by lapse of the Investigating Officer in recorded statement of Mukesh and Kiran after 7 days if Kiran had not witnesses the occurrence there was no need to introduce her as a witness when there were witnesses such as Jagdish and Mukesh whose presence at that spot could hardly be challenged. So, if anything, investigation was unfair towards the complainant party and not against the accused persons.\"and concluded :\n\" So we find the testimony of these witnesses, trustworthy and also confirmatory to each other. Their presence is established at the scene of crime. Their testimony is corroborated by FIR and by medical evidence.\"\n6. We do not agree with the submission of the learned counsel for the appellants that u/s. 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial Court even if it found that the view taken by the trial Court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate Court but a Judge-made guidelines for circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence.\n7. In the instant case the trial Court acquitted the respondents by not relying upon the testimony of three eyewitnesses, namely, Kiran (P.W. 7), Mukesh (P.W. 12) and Jagdish (P.W. 22) on considerations which apparently appeared to be extraneous. Such findings of acquittal apparently are based upon erroneous views or the result of ignoring legal and admissible evidence with the result that the findings arrived at by the trial Court are held to be erroneous. The High Court has ascribed valid reasons for believing the statements of those witnesses by pointing out the illegalities committed by the trial Court in discarding their testimonies. The High Court has also rightly held that the trial Court completely ignored the basic principles of law in criminal jurisprudence which entitles the accused to claim the benefit of right of self-defence. Without there being any legal and admissible evidence but swayed by finding some injuries on the person of the accused, the trial Court wrongly held that the respondents were justified in causing the death of three persons in exercise of their right of self-defence. No fault, therefore, can be found in the judgment of the High Court on this ground.Learned counsel appearing for the appellants further submitted that the prosecution has failed to prove the existence of common object amongst the accused and even if the occurrence is held to have taken place in the manner as alleged by the prosecution each of the accused is responsible for his own acts and cannot be held vicariously liable for the acts done by the other accused persons.\n8. Common object, as contemplated by S. 149 of the \n Indian Penal Code, does not require prior concert or meeting of minds before the attack. Generally no direct evidence is available regarding the existence of common object which, in each case, has to be ascertained from the attending facts and circumstances. When a concerted attack is made on the victim by a large number of persons armed with deadly weapons, it is often difficult to determine the actual part played by each offender and easy to hold that such persons attacked the victim had the common object for an offence which was known to be likely to be committed in prosecution of such an object. It is true that a mere innocent person, in an assembly of persons or being a by-stander does not make such person a member of an unlawful assembly but where the persons forming the assembly are shown to be having identical interest in pursuance of which some of them come armed, others though not armed would, under the normal circumstances, be deemed to be the members of the unlawful assembly.\n9. In this case the accused persons have been proved to be on inimical terms with the complainant-party. The enmity between the parties had been aggravated on account of litigation with respect to the dispute over the mango trees. Accused persons who came on the spot are shown to have come armed with deadly weapons. The facts and circumstances of the case unequivocally prove the existence of the common object of such persons forming the unlawful assembly who had come on the spot and attacked the complainant-party in consequence of which three precious lives were lost. The High Court was, therefore, justified in holding that the accused persons, involved in the occurrence, had shared the common object.When the matter was again listed for re-hearing on 19th March, 2002, Mr. Jain, learned counsel appearing for the appellants submitted that besides appellants-Bhagwan Singh (A1), Dhayan Singh (A2), Datar Singh (A7), Suraj Singh (A8) and Raghunath Singh (A12), the other accused cannot be convicted or sentenced as they have not been named by the witnesses in their statements recorded at the trial. A faint effort was also made to show that the names of all the accused persons were not mentioned in the FIR which justify the acquittal of accused persons other than A1, A2, A7, A8 and A12. Upon analysis of the record, we do not find any substance in the submission of the learned counsel for the appellants. Names of all the accused persons are mentioned in FIR (Exhibit P-77) which was lodged by Jagdish (P.W. 22). It is mentioned in the FIR that when after hearing the voice of Surender, Jagdish (P.W. 22) came out of the house, he saw Datar Singh, Suraj Singh, Raghunath Kunbi, Sukhdev Kunbi, Sadashiv Kunbi, Vasdev Kunbi, Chheeter Kunbi, Premlal Gurjar, Gajender Singh Nakedar, Ram Singh, Bhagwan Singh, Sardar Singh, Roop Singh, Dhayan Singh armed with lathis, dharia, khirale, pattee.\n10. They were assaulting Surender and when Hari Ram went to protect him, they attacked him. Similarly when his father went to save Surender and Hari Ram, he was also attacked and accused-Ram Singh told the other persons that the father of P.W. 22 was the main person responsible for all the troubles and should be finished, whereafter accused-Ram Singh, Bhagwan Singh, Roop Singh and Dhayan Singh inflicted injuries on the person of the father of the witness. When the witness tried to save the victims, the accused persons ran towards him and to save his life he entered in his house and closed the door from inside. In his statement, recorded in the Court on 9-4-1987, Jagdish (P.W. 22) stated that when he came out of his house he saw all the 16 accused persons beating Surender. He has specifically mentioned the names of Bhagwan Singh, Dhayan Singh, Sardar Singh and Roop Singh who were having deadly weapons in their hands. All the accused persons were beating Surender and when Hari Ram went to save him, he was attacked. Similarly, Amarnath, the father of the witness was also attacked and severely injured. Kiran (P.W. 7) in his statement, recorded in the Court on 17-2-1987, stated that\n\"then there came the voice of shouting of Surender that save me save me, Bhagwan is killing me. I ran and went towards the noise. I went there and saw that Ram Singh, Bhagwan Singh, Dhayan Singh, Sardar Singh, Umrao Singh, Roop Singh, Datar Singh, Suraj Singh, Sadashiv, Sukhdev, Vasudev, Raghunath and the forest guard Gajra, Premlal, Gajanan all these people were beating up Surender, Hariram and Amarnath. On seeing the accused Chheeter said that he was also there and these were all the accused persons who were beating. These people were beating up with sticks, khirale and pattee . These people were shouting that kill these. Punjabis, kill each and every one of them. Bhagwan Singh was saying that kill this old man also and he only does everything. He was calling Amarnath as old person. These three persons fell down because of beating and got soaked in blood.\"Mukesh (P.W. 12), in his statement recorded on 19-2-1987, stated that\" when I reached near home, I heard a brawl from the side of Jagdish's house. I left the cart to see it. When I saw from near the house of the accused-Bhagwan, the accused persons coming from the side of Laxman Patel's house were going to the side of Amarnath's house. In front of my eyes, Hariram fell down in front of Laxman Patel's house. The assailant had wooden objects, Khiralas and Pattas, they were hitting with them. Amarnath was seen collapsing near Narmada's house. Then, the accused persons started pelting stones on my side. One stone hit me on my right shoulder. Then I ran home.\"\n11. In view of cogent, reliable and confidence inspiring testimony of P.Ws. 7, 12 and 22, it cannot be said that the names of all the accused persons were not mentioned in the FIR which entitled some of them to be acquitted. The High Court has rightly found that the names of all the accused persons were mentioned in the FIR and repeated by the witnesses in their depositions made in the trial Court. From the questions put in cross-examination. It also transpires that the accused persons never doubted the factum of their names being mentioned by the witnesses in the FIR and in their statements recorded at the trial.\n12. We also do not find any substance in the submission of the learned counsel for the appellants that statement of Kiran (P.W. 7) should not be given any weight because her name is not mentioned in the FIR. There is no requirement of law for mentioning the names of all the witnesses in the FIR, the object of which is only to set the criminal law in motion. Kiran (P.W. 7) herself was injured and being the niece of Hari Ram (deceased), had no reason to involve innocent persons in the commission of the crime. Merely because P.Ws. 7, 12 and 22 happen to be the relations of the deceased, cannot be made a ground to discard their evidence. In the circumstances of the case, the High Court has rightly found the aforesaid witnesses to be natural witnesses of the occurrence.There is no merit in this appeal which is accordingly dismissed.\nAppeal dismissed.\n"}
+{"id": "BGjxrzuLWO", "title": "", "text": "H. B. Gandhi, Excise and Taxation v Messrs Gopi Nath and Sons and Others\nSupreme Court of India\n\n11 December 1989\nC.A. Nos. 5092-93 of 1989\nThe Order of the Court was as follows:\nSpecial leave is granted.\n1.  These appeals are by the Revenue and are directed against the order dated May 20, 1983 of the Division Bench of the High Court of Punjab and Haryana in L.P.A. Nos. 444 and 445 of 1982 dismissing the appeal preferred by the appellant against and affirming the orders dated January 13, 1983 of the learned Single Judge in Civil Writ Petition Nos. 2054 and 2170 of 1982. By those writ petitions, the respondents assailed orders of assessment of sales tax under the Haryana General Sales Tax Act, 1973 bringing to tax a turnover of sales of articles of food said to have been sold by the respondents in their restaurants.\n2.  Against the respective orders of assessment the respondents filed appeals provided for in the statute. S. 39(5) of the Act contemplates that no appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied that the amount of tax assessed has been paid. The proviso to that sub-section, however, invests the appellate authority with the discretion to waive the requirement of the payment of tax as a precondition to the entertainability of the appeal and to proceed to consider it on the merits subject to the appellant furnishing a bank guarantee or adequate security for the tax. In the present cases, appeals envisaged and permitted by the statute had been lodged. However, respondents were aggrieved by the order of the appellate authority declining to exercise the discretion under proviso to S. 39(5) in favour of respondents and calling upon them to deposit the tax due as a condition for the appeals being heard on the merits. Respondents appear to have assailed the order declining to exempt them from payment of the tax in further appeals; but without any success.\n3.  Respondents thereafter approached the High Court u/art. 226 of the Constitution. From the order of the learned Single Judge, which has come to be affirmed by the Division Bench, it would appear that the appellants did not confine their challenge to the legality of the order of the appellate authorities declining relief under proviso to sub-s. (5) of Section 39, but the respondents raised and the High Court permitted a challenge to the merits of the assessment itself on the ground that the transactions assessed to sales tax were in fact services rendered by the respondent restaurants to their customers and did not constitute sale of articles of food.\nThe High Court entertained the writ petition and upon a re-appreciation of the facts proceeded to hold that the transactions did not constitute sales but were mere transactions of service. In these appeals the permissibility of such a re-assessment of the evidence by the High Court at a stage where appeals were the appropriate remedy and where in fact such appeals had been filed is assailed. Learned counsel for the Revenue urged that the question whether supply of articles of food and drinks to a customer in a hotel constitute sale of goods invoking a transfer of the property in the goods to the customer or whether the transactions are essentially and predominantly one of merely the rendering of service - the supply of food and drinks being merely incidental - is a complex and difficult question to be decided on a number of criteria and dependent on primary facts to be found by the fact-finding authority under the statute. This, indeed, is so.\n4. In the Northern India Caterers (India) Ltd. case, 1979 Indlaw SC 110 the complexities of the exercise were indicated by this Court\n\"We have no hesitation in saying that where food is supplied in an eating house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended.\"\n5.  In the course of the proceedings of assessment the assessing authority said:\n\"After going through the above judgment of the Supreme Court of India, it becomes clear that where a food is supplied in an eating house or a restaurant and the substance of the transaction has a dominant object of sale and rendering of services is merely incidental, the transactions would be subject to sales tax. The deciding factor in the case of this dealer, therefore, is whether the transaction made by him is the purpose of providing entertainment and other services to the customers or the dominant factor was sale of foodstuffs. As already held by the Supreme Court in Northern India Caterers case, 1979 Indlaw SC 110 there may be high style restaurants or residential hotels rendering a bundle of special services like ball dance, rare music, viands of high regale, etc. as described by learned judges in their above-cited judgment. The establishment of the dealer does not answer the above description and cannot be considered to be of a high style restaurant providing services. It is an ordinary restaurant. I have paid a visit to the restaurant and have observed that the furniture and crockery provided in the restaurant is of an ordinary type which is barely necessary to run any restaurant in a small place like Karnal. No special music has been provided nor any bikini dances or special shows are held. Their Lordships of the Supreme Court have clearly held that where the charges for music, dances and the supply of foodstuffs are made in a consolidated form and it is not possible to bifurcate the items and decide the bills to discover separately the components of goods sold and in case where the service charges are much more than the value of the goods supplied, the transactions would not attract the levy of sales tax. It is, however, unambiguous that where the charges for the foodstuffs are dominant in the bills and the services are nominal, the object of the dealer is definitely one of sale of foodstuffs and not of rendering services. I have examined some of the bills of the dealer and find that he has charged the price of foodstuffs only and there is no other consideration for any type of services. The dominant object in his case is, therefore, undoubtedly the sale of foodstuffs and not of providing any music, or entertainment services. I think the Supreme Court had in mind those establishments where the entrance is on some payment, where shows are held and the supply of foodstuffs is just nominal and incidental to the entertainment. A visitor to such entertainment or amusement house spends few hours for the purpose of entertainment on payment. Naturally, the establishment providing such amusement/entertainment to the customer has to satisfy his bodily wants and amounts charged for satisfying such bodily wants are nominal as compared to the charges of services and providing amusement etc. No such thing is, however, found in his restaurant\"\n6.  The constitutional validity of the provisions in sub-s. (5) of S. 39 of the Act were not assailed in the writ petition. Similar provisions, accompanied by similar proviso, have been held valid. At the stage at which the respondents approached the High Court, what the respondents could have, if the facts so justified, assailed was the question of the refusal of the appellate authority to exercise the discretion under the proviso. When an hierarchy of appeals is envisaged by a taxing statute, it is generally to be insisted that an assessee must go through the statutory proceedings. In C. A. Abraham v. ITO 1960 Indlaw SC 280, it was observed\n\"In our view the petition filed by the appellant should not have been entertained. The Income Tax Act provides a complete machinery for assessment of tad and imposition of penalty and for obtaining relief in respect of any improper orders passed by the income tax authorities, and the appellant could not be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court u/art. 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal\"\n7.  In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to S. 39(5) was proper or not, it was not open to the High Court to re-appreciate the primary or perceptive facts which have otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.\n8.  But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.\n9.  On a consideration of all the circumstances of the case, we think that the order of the High Court cannot be allowed to remain undisturbed. We allow these appeals, set aside the judgments of the Division Bench in the letters patent appeals as also the orders of the learned Single Judge in the writ petitions in the High Court.\n10.  Learned counsel for the respondents, however, said that though the legality of the refusal of the benefit of an order under the proviso to S. 39(5) had been raised before the High Court, that question receded to the background in view of the relief having been allowed on the main question touching the nature of the transactions. Learned counsel said that the former question yet remains to be examined. Learned counsel also submitted that the refusal of the appellate authorities to exempt respondents from the deposit of the assessed tax as a precondition to the entertainability of the appeals was unsupportable and that in their present straitened financial circumstances it will not be possible for the respondents to avail themselves of the right of appeal.\n11.  It appears to us that having regard to the circumstances that we are considering this matter after lapse of several years it would neither be necessary nor appropriate to remit the matter to the High Court to examine the question whether the refusal of the appellate authorities to give to the respondents a benefit of the proviso to S. 39(5) was legal or not. It appears just that respondents should be enabled to have the benefit of the right of appeal and that we should, as a rough and ready measure, determine the conditions on which relief under the proviso should be given to them.\n12. We, accordingly, set aside the orders of the appellate authorities declining or confirming, as the case may be, the refusal of the benefit of an order under said proviso and direct that the appeals filed by the respondents before the first appellate authority be now restored and proceeded with on the merits in accordance with law, subject to the condition that the respondent, in each of the appeals, deposits a sum of Rs 5000 towards the assessed tax and furnishes security in respect of the balance of the tax to the satisfaction of the said first appellate authority within two months from today.\n13.  The appeals shall be taken up for consideration of the merits and dealt with and disposed of in accordance with law after compliance with these conditions.\nThese appeals are disposed of accordingly. No costs.\nAppeals disposed of.\n"}
+{"id": "MM0jQb6gbt", "title": "", "text": "Khedu Mohton and Others v State of Bihar\nSupreme Court of India\n\n17 August 1970\nCriminal Appeal No. 162 of 1967. Appeal by special leave from the judgment and order dated May 3, 1967 of the Patna High Court in Criminal Appeal No. 40 of 1965\nThe Judgment was delivered by : K. S. Hegde, J.\n1. This appeal by special leave is directed against the decision of single judge of the High Court of Judicature at Patna setting aside the acquittal of the appellants and convicting them under ss. 379/149, I.P.C. as well as under s. 143, I.P.C.\n2. The appellants were prosecuted before the Munsiff Magistrate, 1st Class, Arrah for dishonestly cutting and removing the paddy crop in plots Nos. 340 and 346 pertaining to khata No. 82 in village Ibrahim Nagar District Shahbad.\n3. The complainant's case is that those lands belonged to him and the appellants unlawfully trespassed into that property on November 19, 1961 and harvested the rice crop. The appellants pleaded not guilty to the charge. The learned trial magistrate held the appellants guilty and convicted them as mentioned earlier. In appeal the learned District Judge, Shahbad acquitted the appellants. He felt unable to rely on the prosecution case for three different reasons.\n4. Firstly he came to the conclusion that the witnesses who spoke about the occurrence are all interested witnesses and it is unsafe to place reliance on their testimony. He secondly came to the conclusion that there was considerable delay in filing the complaint and the delay in question has not been explained by the prosecution and that circumstance throws doubt on the prosecution case. Lastly he held that the non-examination of the police inspector who is said to have come to the place of occurrence at the time of the occurrence and seen some of the appellants' harvesting the crop casts further doubt on the prosecution case. The High Court differing from the 1st appellate court held that there was no delay in filing the complaint nor was the non examination of the police inspector a circumstance that went against the prosecution. It did not deal with the finding of the 1st appellate court that it is unsafe to place reliance on the evidence of P.W.s. 1 to 4 as they were interested witnesses.\n5. It is true that the powers of the High Court in considering the evidence on record in appeals under s. 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basic of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to, interfere with the order of acquittal.\n6. The learned appellate judge has come to the conclusion that P.Ws. 1 to 4 are interested witnesses and it is unsafe to place reliance on their testimony. It is established in evidence that P.Ws. 1 to 3 are interested witnesses. They are the enemies of the appellants. This aspect of the case was not considered by the High, Court at all.\n7. The occurrence Is said to have taken place on November 19, 1961 but the complaint in respect of the same was filed on November 27, 1961. The explanation given by the complainant for this inordinate delay was that he laid information about the occurrence before the police on the date of the occurrence itself; he was expecting the police to take up the investigation; as the police did not take up the investigation, he filed the complaint on 27th November, 1961. This explanation has been rejected by the 1st appellate court. The complaint said to have been filed by the complainant has not been summoned nor proved. No satisfactory proof of any such complaint has been adduced before the court. If a complaint tinder s. 154 had been filed, the same would have been registered and a final report under s. 173 submitted. None of those documents have been summoned much less proved. Curiously enough, the learned judge of the High Court says that if the learned Sessions Judge had looked into the diary of the magistrate, he would have found reference to the complaint filed by the complainant. In this Court we requested the Counsel for the State to look into the original records and inform us whether there is any reference to a complaint filed by the complainant. After examining the records, he told us that there is no such reference. We do not know how the learned judge formed the impression that there was some reference in some record about the information laid before the police.\n8. In fact in this Court Counsel for the State told us that what had happened was that before the occurrence, the complainant appears to have filed an application before the police mentioning that there was an apprehension of breach of peace. The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution story. It was the duty of the prosecution to explain the delay satisfactorily. Failure of the prosecution to do so undoubtedly is a circumstance of considerable importance.\n9. According to the complainant, as the appellants were reaping the crop the Police Inspector happened to come there and that he had seen some of the appellants harvesting the crop. If that be so the Inspector of Police would have been an extremely important witness. His evidence would have been useful in determining the guilt of the accused. He is a disinterested person. No explanation was given for not examining him. Strangely enough the learned Judge of the High Court opined that there was no purpose in examining the inspector when he had failed to investigate the complaint made before him. As seen earlier, the alleged complaint appears to be an imaginary one. Therefore the inference that the inspector of police was guilty of dereliction of duty was unwarranted.\n10. In view of our above conclusion, it is unnecessary for us to consider the question of law canvassed by Mr. E. C. A agarwal, learned Counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining special leave under sub-s. (3) of s. 417, Cr.P.C. It appears that during the pendency of the appeal, the complainant died. It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the complainant. This contention was rejected by the High Court. In support of that contention, Counsel for the appellant relied on two decisions one of Allahabad High Court in Nehal Ahmad v. Ramji (A.I.R. 1925 All. 620) 1924 Indlaw ALL 111 and the other of Madras High Court in Thothan and anr. v. Murugan and ors.( A.I.R. 1958 Mad 624) 1958 Indlaw MAD 894 The first decision has no application to the facts of the present case. That was an appeal under S. 476 (B) of the, Cr. P.C. It is true that the Madras decision was rendered in an appeal under s. 417(3) of the Cr. P.C. In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under S. 417(3), Cr. P.C. abates on the death of the complainant. The question of abatement of criminal appeals is dealt with by s. 431 of Cr. P.C.. That section reads\n\"Every appeal under S. 41 1 A, sub-s. 1 or s. 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appellant.\"From this section it is clear that an appeal under s. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The argument that while introducing sub-s (3) into s. 417, Cr. P.C., the Parliament overlooked the provisions contained in s. 43 1, does not deserve consideration. The language of s. 431 is plain and unambiguous. Therefore no question of interpretation of that provision arises.\n11. In view of our finding on the merits of the case, we allow this appeal, set aside the judgment of the learned single judge of the High Court and restore that of the Sessions Judge. The appellants on bail. Their bail bonds do stand cancelled.\nAppeal allowed.\n"}
+{"id": "5F21rWz5FY", "title": "", "text": "Gambhir v State of Maharashtra\nSupreme Court of India\n\n15 April 1982\nCr.A. No. 746 of 1980\nThe Judgment was delivered by: MISRA, J.\n1.  The present appeal is directed against the judgment of the Bombay High Court at Nagpur dated 19th/25th of June, 1979, convicting the appellant under S. 302 of the Indian Penal Code, 1860 and sentencing him to death for the murder of Laxmi and her two children.\n2.  One Namdeo Gopal, resident of Shelgaon-Jahagir, was in the employment of Shankarrao Shewale, resident of the same village, as an agricultural labourer. Shankarrao Shewale had also land in another village Andrul at a distance of 15 miles from Shelgaon-Jahagir. Shankarrao had deputed Namdeo to cultivate his filed at Andrul about three weeks prior to the date of occurrence on 26th February 1975. He accordingly went to village Andrul leaving his wife Laxmi and daughter Manda aged about 10 years and his son Samadhan aged about 4 years at his residence in a locality known as Tagwale locality. During his absence Gambhir the appellant used to visit the house of Laxmi off and on.\n3.  The prosecution story as unfolded in evidence is that on 26th of February 1975 Gambhir was seen in the house of Laxmi in the evening. He was also seen in the company of Laxmi at about 10.00 p.m. at night on the same day under a Neem tree. Thereafter neither Laxmi nor her children were seen alive. Next morning that is on 27th of February the neighbours found that the thatched door of the house of Namdeo was open and household utensils and other goods in the house were lying in disorder. Laxmi and her children were not found there. The news spread in the village about the disappearance of Laxmi and her children. When Shankarrao Shewale, the employer of Namdeo got the news, he proceeded to village Andrul and brought Namdeo back in the evening of 27th of February 1975.\n4.  Namdeo along with Shankarrao Shewale and certain other persons proceeded to police station, Chikhli, at a distance of 8 miles from village Shelgaon-Jahagir for making a report. Shri Chaudhari incharge of the police station recorded the first information report and proceeded to village Shelgaon-Jahagir. He also sent a requisition for the assistance of a dog sqad to the authority concerned at Aurangabad. Shri Choudhary for some time waited for the arrival of the dog squad, but when the dog squad did not arrive, he commenced preliminary investigation. He tried to open the lock of the inner living room. The lock, however, could not be open so he pulled-up and seized the same under a Panchanama. He peeped into the room through the shutters and found things lying in disorder. He, however, did not enter the room so that the effectiveness of the dog squad might not to lost by the entry of other persons in the house. He closed the door and locked the room with another lock.\n5.  The dog squad did not arrive till the evening of 28th February 1975. The Investigating Officer lost his patience and he along with the Panches climbed on the roof of the house and pushed aside the tin sheets covering the room. He peeped into the room with the help of a torch light and found foul smell coming from the room. He also sought to remove the clothes covering a corn-bin with the help of an iron bar and on removing the clothes he found legs of human being. He thereafter set right the tin sheets on the roof as before.\n6.  At long last the dog squad arrived on the 1st of March, 1975, and the police with the Panches entered the house. One broken trunk lying inside the house and the lock which was broken open was shown to the dog, which took its smell and started moving about searching the area and locality around.\n7. Eventually the dog went to the house of the appellant and stopped there. The appellant was arrested and at the time of his arrest some injuries were found on his person. The shirt and the dhoti put on by him at the time of his arrest were also found to contain stains of blood. On interrogation the accused offered to point out the well where the dead bodies of Laxmi and her daughter Manda were lying. Many more articles are alleged to have been recovered on his pointing out in various instalments during the course of three to four days.\n8.  The accused was, therefore, sent up to the Court of Session to stand his trial for an alleged offence under S. 302 of the Indian Penal Code, 1860. The accused pleaded not guilty to the charge. Apart from making the statement under S. 313 of the Criminal P.C., he also filed a written statement and produced some documents. His defence was that Kisan Govinda, the Surpanch of the Gram Panchayat bore enmity against him and other members of his family. He had quarrel with his father and uncles. Kisan Govinda has claimed passage through the filed of Sahebrao, uncle of the accused. When he refused to grant him the way he filed a suit in the Court. Kisan had again made a complaint to the police on the allegation that he had obstructed 400 labourers.\n9. There was again a theft in the house of Patilbua, another uncle of the accused. Kisan made a false charge of theft against his another uncle Rajaram. He had also given evidence against Rajaram. On account of this long, standing enmity between Kisan Govinda Rao and the family of the accused, he had sought to implicate the accused falsely in the case. Other neighbours who gave evidence against the accused are all relations of one another and they deposed against the accused at the instance of Kisan Govinda.\n10.  There is no eye witness of the occurrence and the case proceeded only on the basis of circumstantial evidence. The Sessions Judge, however, convicted the appellant under S. 302, Indian Penal Code, 1860 and sentenced the accused to life imprisonment. The accused went up in appeal to the High Court. The State also filed a criminal revision for enhancement of the sentence. The High Court allowed the revision of the State and dismissed the appeal of the appellant and enhanced the sentence of the appellant from life imprisonment to death. The appellant has now come to challenge the judgment of the High Court by the present appeal.\n11.  It has already been pointed out that there is no direct evidence of eye witness in this case and the case is based only on circumstantial evidence. The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests :\n(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established\n(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;\n(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.\n12. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law. The circumstantial evidence in the instant case may be broadly classified into three parts; (1) oral evidence to prove that in the absence of Namdeo, the accused used to visit the house of Laxmi regularly and he was seen in the evening of 26th of February 1975 in the company of Laxmi and her children. He was also seen at about 10.00 p.m. the same night in the company of Laxmi under a neem tree in the village. At mid-night he was again seen going along the way near the house of Babulal, (2) the various recoveries most of them at the instance of the accused and (3) medical evidence.\n13.  Dwarka, PW 2 and her husband Babulal PW 6 are next door neighbours. They deposed that the accused used to visit the house of Laxmi during the absence of Namdeo from the village. He generally, came to the house of Laxmi in the evening and chatted with her and her children. On 26th February also he was seen in the company of Laxmi and her children. At mid-night they heard some noise from the house of Namdeo. They woke up and opened their door. They found accused coming out from the house of Namdeo in white Dhoti, full sleeves Shirt with a cap on his head. In cross-examination both of them admitted that they could identify the accused in the dark night from behind from a distance of 20 to 24 feet when the accused turned his face towards the back. They did not question him. They did not report to anybody the village nor did they give this information even to the police when it came to the village. Although they were the next door neighbours they did not go to the house of Laxmi even when they found that the household utensils were lying scattered.\n14.  At the face of it, it looks rather improbable that they would recognise the accused at the dead of night from behind during the twinkling of an eye when the accused turned his face back. Further the conduct of these witnesses in not informing the police what they had heard or seen at mid-night and their omission to report about it to anybody in the village are also significant. In the circumstances it is unsafe to rely on their testimony.\n15.  Mathurabai PW 3, also deposed that in the evening of 26th February she saw the accused going to the house of Namdeo twice or thrice. She again saw the accused and Laxmi going towards the village from the house of Laxmi. At that time she asked Laxmi as to where she was going. She answered that he daughter had gone to the house of Himmatrao Patil for fetching milk but she had not turned back so far. She also deposed that her daughter Vimal used to go to the house of Laxmi in the night for sleeping as Laxmi used to call her for a company in the absence of Namdeo.  Thus she is a witness of seeing the accused going in the company of Laxmi at dinner time. But in cross-examination she admitted that he went away near dinner time and thereafter she talked to Laxmi for about half an hour. Thus from her own admission she belies the prosecution story of the accused going in the company of Laxmi at dinner time.\n16.  She further admitted in cross-examination that besides the accused other persons also used to come to the house of Laxmi in the absence of her husband. Kisan Govinda Rao in whose service Namdeo previously was, also used to go to the house of Laxmi to enquire about her children.\n17.  Vimal PW 19, is the daughter of Mathurabai, PW 3. According to her deposition she used to go to the house of Laxmi for sleeping during the absence of Namdeo. On 26th February as Laxmi and her children used to call her for giving a company she took her meals and went to the house of Laxmi, on the day of occurrence. At that time Laxmi was busy preparing tea. Samadhan was sleeping inside the house and Manda had gone to fetch milk. The accused was also sitting there. The accused took a cup of tea without milk, as Manda had not returned till then. Laxmi and accused both proceeded towards the village. Laxmi asked her to go home.\n18.  She also like her mother admitted in cross-examination that the accused got up from the house of Laxmi and went away in her presence. Laxmi thereupon asked her to come again for sleeping. According to her Kisan Govinda Rao also used to come to the house of Laxmi. She also like her mother Mathurabai belied the prosecution case of the accused being seen in the company of Laxmi while going towards the village at dinner time.\n19.  This leads us to the evidence of Satya Bhama PW 21 daughter of Patilbuwa, aged about 15 years. She deposed that at about dinner time she was standing on the terrace which is on the first floor of her house along with her brother Ramesh and Khushal. From there she saw one female standing below the Neem tree. On enquiring the female said that she was the wife of Namdeo. Gambhir was also standing at a distance of 2 or 4 feet from her..\n20.  In cross-examination she admitted that her sister Rukhmini was married to the nephew of Kisanrao Sarpanch. She denied whether her father Patilbuwa had proceeded Raja Ram and Himmat Rao for the offence of theft. The Neem tree according to her was at a distance of 25 feet from her house. It is difficult to see a person standing under a Neem tree from a distance of 25 feet even if it was a moonlight night. A person standing under a tree at night can see a person in the moonlight night but not vice versa.\n21.  In view of the close relationship between Patilbuwa, her father and Kisan Govinda Rao there is no wonder that this minor girl came to depose against the accused at the instance of Kisan Govinda Rao who is the moving spirit in the case. While discussing the evidence of Mathura Bai PW 3 and Vimal PW 19 the theory of accused going in the company of Laxmi from her house at dinner time has already been disbelieved and thus there was no occasion for his witness to see Laxmi and the accused under the Neem tree. Her evidence is too good to be relied upon.\n22.  On scrutiny the only thing established is that the accused and other persons used to visit the house of Laxmi during the absence of her husband and that he was again seen in the company of Laxmi on 26th February in the night till before dinner time. This single circumstance by itself is too feeble to connect the accused with the murder of Laxmi and her children.\n23.  Now we take the evidence relating to various recoveries most of which are alleged to be on the pointing of the accused. These recoveries were made during the course of 4 days from 1st March to 4th March 1975. In Panchanamas regarding all these recoveries Kisan Govinda Rao is one of the witnesses including Ex. 27 on which his signature was subsequently appended by way of interpolation. At one stage the High Court felt suspicious about the Panchanama Ex. 27. It, therefore, directed the Sessions Court to take additional evidence of other Panches. Accordingly the evidence of Narain and Sukhdeo was recorded.\n24.  From the deposition of Kisan Govinda Rao P.W. 8, it appears that he was called by the police first on the night of 27th February at 2.45 a.m. and Waman Janu was the other Panch. They were taken to the house of Namdeo. Some breads, vegetables and some utensils were lying in the Osari. The Panchnama Ex. 19 was drawn up. For the second time he was called along with Waman Janu, another witness of the Panchnama at 3 p.m. They were taken to the house of Namdeo. They climbed over the tin roof. The tin was removed from the roof. They could see the legs of a child after the removal of the clothes from the surface of a cornbin. Panchanama Ex. 21 of the same was drawn up. He was called for the third time by the police on 1-3-1975 with two other Panchas Waman Janu and Sada Shiva Mhaske. Police took them and the dog and her master to the house of Namdeo.\n25. The dog was allowed to take the smell of the box which was lying open. The lock thereof was lying by the side. The dog then came out. Her master followed her and the Panchas followed the master. The dog stopped under the Neem tree on the way and took the smell. The dog then came at the back side of Raja Ram's house. She then again went to the house of the accused. The dog then went near the stone embankment near the tamarind tree. Eventually she went inside the house of the accused. Panchanama Ex. 22 of the same was drawn up. Kisan Govinda Rao was called for the fourth time at 5 p.m. along with Rambhau Nandu and took them to the nala to the west of the bridge at about 10 feet. Four stones were found in the bed of the nala by the side of the stream. All these stones were stained with blood. They were sealed under a Panchanama Ex. 28.\n26.  He was called for the fifth time at 6 p.m. along with Waman Janu and Rambhau Nandu. Police took them to the house of Namdeo. Household utensils were lying scattered. Police Station Incharge asked Namdeo to verify whether his cash and ornaments were missing or intact. Namdeo told that one box and one Bhagona were missing. Panchnama Ex. 29 of the scattered articles was drawn. Kisan Govind Rao was called for the sixth time on 2-3-1975 at 11 a.m. with Waman Janu, the other Panch. Police took them to the house of Namdeo. Police opened the door and asked Namdeo to tell which articles of his were missing. Nemdeo on examining the articles said that a box and a blanket were missing. His cash and gold and silver ornaments were intact. Panchnama Ex. 30 of what happened there was drawn up.\n27.  For the 7th time he was again called at 1 p.m. at the school along with Janardan Shripat and Wamanrao Bhikanrao, other Panchas. The police asked them to hear what the accused had to say. Accused informed that he had kept the keys of the lock buried underground near the kud wall of Osari of Namdeo. The memorandum of his statement was recorded under the signature of the two panchas.\n28.  Kisan Govinda Rao was called for the eighth time at 1 p.m. on 3rd March, 1975. Dashrath Yeduji was the other Panch at the school. Police asked them to hear what the accused was saying. The accused offered to show the well in which he had thrown the blanker and the box. The memorandum of his statement Ex. 33 was recorded.\n29.  Kisan Govinda Rao was called for the ninth time on 4th March 1975 at 3 or 3-30 p.m. at school. Waman Janu and Rambhau Nanduji were the other Panchas. Police asked them to hear what the accused was going to say. He said that a string containing black beads is contained below the stone behind his house. The memorandum of his statement was drawn up under the signature of the Panchas which is Ex. 34.\n30.  For the last time Kisan Govind Rao was called by the police at 5 p.m. at school and the other Panch was Waman Janu. Again they were asked to hear what the accused had to say and the accused said that he had kept one brass pot into the stone embankment of his Wadga. The accused offered to discover the same. The memorandum of his statement Ex. 36 was recorded.\n31.  The various recoveries made in various instalments most of them on the pointing of the accused appears to be suspicious. On 27th of February when the Investigating Officer along with the Panchas peeped inside the room after removing the tin roof they found foul smell coming out. If the body had decomposed just within one day of the occurrence obviously must more foul smell would be coming out from the well, on 1st of March, where two corpses were lying. It has come in evidence that people used to go towards the well to ease themselves. They must have come to know about the foul smell specially when the dog squad was there and it would have been not at all difficult for the dog to locate the place where the foul smell was coming from. In our opinion this must have been known to all concerned that foul smell was coming out of the well and people must have tried to find the reason thereof. In such a situation it was not at all necessary for the accused to have pointed out the place where the dead bodies were lying.\n32.  Coupled with this fact we know that Kisan Govinda Rao had been called as a Panch in respect of each and every recovery made during the course of four days. There is both oral and documents on the record to establish that there was a long standing enmity between Kisan Govinda Rao on the one hand and the members of the family of the accused on the other.\n33.  The High Court has, however, ignored the documentary, evidence including the judgment produced on behalf of the accused on the simple ground that they indicate enmity not with the father of the accused, but with his uncles, who were separate from the accused and his father and therefore, that enmity can be of no avail for the accused. His uncle may be living separately from the accused and his father, but that does not destroy the relationships of the members of the family. Blood is thicker than water. If the uncles of the accused were involved in criminal and civil litigation with Kisan Govinda, the evidence of Kisan cannot be safely relied upon.\n34.  This leads us to the medical evidence. The two doctors, Dr. Tapre, P.W. 14 and Dr. Koti, P.W. 12, who conducted the post-mortem examination could not give the probable time of death of the three deceased as the bodies were in a high state of decomposition. The High Court, however, tried to delve deep into the master and after a long drawn-up reasoning came to the conclusion that the death of the three deceased had taken place late in the night on 26-2-1975. In this connection, the High Court made the following adverse remarks about the doctors;\n\"We feel and regret that Dr. Tapre as well as Dr. Koti have failed to bring the case in their notes and care and circumspection, and considerations which are patent and necessary before giving their opinion in regard to such a vital as to the probable time of death of the deceased ....... he failed to do his duty by the profession which he professed to practice ....... Dr. Koti who is an M. D. in General Medicine says that\"\n35. No opinion could be given as to the probable cause of death (which appears to be a mistake of time) as the body was in high state of decomposition.\" The High Court came to its own opinion when the doctors failed to given opinion. The Court has to draw its conclusion on the basis of the materials supplied by the expert opinion. The High Court has tried to usurp the functions of an expert. Accepting that the accused was seen in the evening of 26th February in the company of Laxmi, in the absence of any positive evidence about the probable time of death, it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmi's company and the time of the death of the three deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmi's house.\n36.  The last but not the least in importance is the question of motive. The motive alleged by the prosecution is of robbery or theft of the cash and the ornaments to the tune of Rs. 7, 000/-. But curiously enough not a single item of cash or the ornaments was touched. The High Court had been impressed by the fact that the accused could not locate the place where the cash or the ornament were kept. If the prosecution case is that the accused had been coming regularly to the house of Laxmi, it is too much to assume that he would commit the murder of Laxmi and her children without first ascertaining where the cash and valuables were kept. The Sessions Judge himself did not accept the prosecution case regarding motive and it is on this account that he chose to award lesser punishment of life imprisonment.\n37.  From the evidence discussed above, we find that the three conditions which are necessary to be satisfied before circumstantial evidence can be made the basis for conviction have not been fulfilled. There may be suspicion against the accused but the suspicion cannot take the place of evidence. The approach of the High Court in the appraisal of evidence is not at all satisfactory. The evidence on the record falls short of proving the guilt of the accused beyond all reasonable doubt. We accordingly allow the appeal set aside the conviction and sentence of the appellant and he is acquitted of the charge. He shall be set free forthwith.\nAppeal Allowed.\n"}
+{"id": "gQH8wylh0C", "title": "", "text": "Arulvelu and Another v State, By The Public Prosecutor and Another\nSupreme Court of India\n\n7 October 2009\nCr.A. Nos. 1233-1234 of 2002\nThe Judgment was delivered by: Dalveer Bhandari, J.\n1. These appeals are directed against the judgment of the High Court of Madras dated 12.3.2002 in Criminal Appeal No. 315 of 1992 and Criminal R.C. No. 691 of 1991 respectively.\n2. In the instant case, the High Court has reversed the judgment of acquittal passed by the II Additional Assistant Sessions Judge, Periyar District in Sessions Case No. 45 of 1999 and convicted the accused persons.\n3. Brief facts which are necessary to dispose of the matter are recapitulated as under:\nThis appeal is filed by Arulvelu, A-1 and Krishnasamy, A-2 (father of A-1). Appellant Arulvelu has been convicted under section 304-B of the Indian Penal Code (for short 'IPC') and sentenced to seven years rigorous imprisonment and he has been further convicted under section 498-A IPC and sentenced to rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-, in default to suffer three months rigorous imprisonment. Appellant accused no.2 has been imposed sentence of fine of Rs.1,000/- under section 498-A of IPC, in default to suffer simple imprisonment for a period of three months.\n4. Before the marriage of Arulvelu with Mangayarkarasi (since deceased), an agreement was entered into to the effect that towards the consideration of the marriage, deceased's father P.W.1 would give gold ornaments of the weight of 50 sovereigns along with other articles and a car to Arulvelu.\n5. The father of the deceased could give ornaments of the weight of only 30 sovereigns of gold and also could not give the car as undertaken. Instead of giving the remaining ornaments of 20 sovereigns and a car, P.W.1 in all gave only Rs.5,000/- in small installments. This was the main cause of annoyance of Arulvelu and his family members with the deceased. It is the case of the prosecution that accused nos. 1 to 3 had been torturing the deceased Mangayarkarasi by demanding a car and money.\n6. A baby boy was born to Arulvelu and the deceased Mangayarkarasi. Arulvelu told his wife that he would take back her along with the newly born child only if ornaments of the weight of 5 sovereigns and a cash amount of Rs.5,000/- were given to him. The father of the deceased had given ornaments of the weight of 4 sovereigns and a cash of Rs.5,000/- to the first accused. The first accused had taken back the deceased and the child only after receiving the aforementioned articles from P.W.1.\n7. The first accused had demanded the balance ornament of the weight of one sovereign when the second child was born. The father of the deceased gave ornament of the weight of one sovereign.\n8. The first accused had sent the deceased Mangayarkarasi many times to her father for getting money for doing business.\nAccording to the prosecution, since the car was not given to the first accused, he had beaten and tortured the deceased asking her to get the car from P.W.1. Mangayarkarasi ultimately became disgusted with her life and at 11.30 a.m. on 15.3.1989, she committed suicide by hanging herself.\n9. The prosecution, in order to prove its case, had examined 20 witnesses. K. Ramalingam P.W.1 is the father of the deceased. D. Latha P.W.4 is the sister of the deceased. S.T.P. Muthusamy Mudaliar P.W.5 is the neighbour. Thirumathi N. Yasodha P.W.2 is the tenant of P.W.1and P.W.3 A. Periasamy is the person who had arranged the marriage of the first accused and the deceased. V.P. Subramaniam P.W.6 is a close relative of the deceased. N.Manickam P.W.8 is a member of the Panchayat. S.A. Periasamy P.W.9 is another Sambandhi of P.W.1 who later on turned hostile.\n10. The fact that the deceased had committed suicide by hanging herself is undisputed. The question which arises for our adjudication is whether the appellant is guilty for compelling the deceased to commit suicide. According to the prosecution she was forced to commit suicide because of consistent demands of dowry made by the first accused. According to P.W.1 the father of the deceased, his daughter committed suicide because he could not give gold and a car as agreed before her marriage. The accused persons started torturing and harassing the deceased which ultimately led to suicide.\n11. The trial court in its lengthy and comprehensive judgment has dealt with the prosecution evidence and also all the 33 material exhibits. According to the learned trial Judge, the evidence of P.W.1 that he agreed to give balance ornaments was not corroborated by P.W.3. According to the trial court, P.W.1 had admitted that for the first time, he told the court that accused no. 2 demanded 40 sovereigns and the same was not stated either before the police officers or during Revenue Divisional Officer's enquiry. According to the trial Judge, P.Ws. 15, 17 and 20 would depose that P.W.1 has not told about the demand of ornaments during his cross-examination.\nThe trial court further held that P.W.1 had admitted that he did not tell about the demand of 40 sovereigns of gold by accused no. 2 during the course of investigation, it is his case that an agreement was reached at 35 sovereigns.\nThis has been corroborated by P.W.3 also. P.W.15, the Revenue Division Officer who conducted the enquiry and who also held the inquest came to the conclusion that the death was due to cruelty meted out to the deceased by way of demand of dowry. He has stated in the cross examination that during enquiry P.W.1 did not tell him that first accused demanded 5 sovereigns as a condition to take his wife and the child after delivery. P.W.15 further stated that during enquiry P.W.1 did not tell him that the first accused demanded Rs.10,000/- for his business. During cross-examination on the side of the accused, P.W.15 had admitted as follows:\n\"P.W.1 stated that in his evidence that A2 demanded 50 sovereign of gold before marriage, but he accepted to put only 30 sovereign of gold and remaining 20 sovereign will be given later and if the business goes well then he will get a car. But he never stated in his evidence that A2 demanded 40 sovereign of gold and P.W.1 refused and then accepted to give later.\"\n12. The trial judge, while discussing the evidence of P.W.15, found that there was no demand of bridal gifts before the marriage. The trial judge disbelieved the version of P.W.3 holding that he is not related to P.W.1 and he pleaded ignorance about the date and month of meeting of P.W.1 and accused no. 2. The trial judge also disbelieved the testimony of P.W.1 regarding giving of 4 sovereigns and Rs.5,000/- to the first accused after the birth of the first child and another sovereign of jewel at the time of birth of the second child for the reason that those facts were not spoken to during investigation. This part of the prosecution case is disbelieved. The trial judge has clearly held that P.W.1 deposed for the first time in the court with regard to demand of a car. He did not mention this fact in the first information report.\n13. Ex. P.8 is the suicide note of the deceased which reads as under:\n\"Nobody is responsible for my death. Children should be handed over to mother's house.\" In the suicidal note, the deceased had not implicated any accused. This factor has also weighed heavily with the trial court in acquitting all the accused. The argument on behalf of the accused was that the accused no. 1 had suspected the character of his mother-in-law and other members of his in- law's family, so he did not want the deceased to visit her parents' house and to resolve the dispute Panchayat was held and, as per the version of P.W.1, according to the decision of Panchayat, P.W.1 should not go to the house of the accused and the deceased and accused nos. 1 to 3 also should not go to the house of P.W.1. As per the version of the accused, the decision of the Panchayat not permitting the deceased to go to her parents perhaps led to suicide. The trial court after carefully examining the entire evidence acquitted the accused.\n14. According to the High Court, if she (the deceased) had no problem in her marital house and she was living peacefully with her husband and in-laws, what was the necessity for her to commit suicide Why should she write in her suicide note to leave her children in her mother's house  According to the High Court, unless an intolerable harassment was meted out to her, there was absolutely no necessity for her to write like this that the children be handed over to her mother's house. Therefore, the High Court held that, in all probabilities, there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide.\n15. The High Court set aside the judgment of the trial court on the count that the trial court gave undue emphasis on the minor inconsistencies and contradictions.\nThe High Court discarded the version of the trial court regarding P.W.1's deposition for the first time in court regarding demand of car which he did not mention in the first information report (FIR).\n16. The High Court observed that the FIR cannot be an encyclopedia to contain all the details of history of the case. This approach of the High Court does not seem to be correct. The FIR should at least mention a broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the FIR.\n17. The trial court doubted the veracity of the statement of P.W.1 because it did not find any corroboration of the statement of P.W.1 with the statement of P.W.3 regarding agreeing to give the balance gold sovereigns. The High Court without any basis discarded the judgment of the trial court.\n18. The trial judge observed that the testimony of P.W.1 is not credible because he for the first time in the court had stated that accused no. 2 had demanded 40 sovereigns. This was not stated either before the police officer or during Revenue Divisional Officers' enquiry.\n19. The trial court disbelieved the version of P.W.1 regarding giving 4 sovereigns and Rs.5,000/- to the first accused after the birth of the first child and another sovereign of jewel at the time of birth of the second child for the reason that those facts were not spoken to during the investigation. The High Court held this part of the prosecution case unbelievable, but the fact remains that the demand of dowry was proved beyond doubt through the evidence of P.Ws. 1 and 3. This approach of the High Court is not correct.\n20. The High Court ought to have considered the entire evidence in a proper perspective. Unless comprehensive view of the entire evidence is taken in the proper perspective, a correct conclusion may not be possible. In this case, there has been acquittal by the trial court and, while reversing the order of acquittal, the High Court ought to have carefully considered the following circumstances:\n(1) In the suicide note Ex. P-8, the deceased has not implicated any of the accused.\nThis is indeed a very significant and vital factor which ought to have received proper attention by the High Court.\n(2) There is no credible evidence to suggest that soon before the death, the deceased has been subjected to cruelty or harassment by the accused in connection with any demand of dowry which led to a serious act of committing suicide.\n(3) The High Court failed to consider that the marriage took place in the year 1983 and the deceased committed suicide in the year 1989 i.e. after more than six years of the marriage. There are two small children out of the wedlock. It is quite improbable that ordinarily there would be consistent demands of dowry after six years. The fact of consistent demands is not established from clear evidence of the prosecution.\n(4) The distance between the matrimonial home and the parental home of the deceased is merely one kilometer. There are many houses around the house of the accused. It is submitted that there was neither a whisper nor any complaint was filed by P.W.1 before the deceased committed suicide.\n(5) It appears from the statement u/s. 313 IPC that A-1 wanted his wife (deceased) to keep some distance from her parental home. It transpired in the meeting of the Panchayat that to settle the dispute between the husband and wife and to reduce the affinity of the wife (deceased) towards her parental home (One kilometer away from the parental home), the Panchayat took the decision that both the families should not visit each other. The impact of the decision of Panchayat on the deceased was not properly appreciated by the High Court.\n(6) S.A. Periyasamy P.W.9 has not supported the case of the prosecution. He has stated that \"we told Ramalingam that he and his wife should not go to Arulvelu\"s house often\". He has also admitted that A-1 and Magaiyarkarsi (deceased) were living happily.\n(7) Ramalingam P.W.1 has stated that he consoled and advised his daughter to be bold as they would not come to see her as per the dictum of the Panchayat and wisely handle the situation at her matrimonial house. In fact the suggestion of defence is that the Panchayat was convened as there was a serious apprehension about the character of the mother of the deceased and her family.\nThat is why in the Panchayat no discussion about dowry demand was whispered. Moreover, if the first appellant did not like his deceased wife, he would not be keen on keeping her with him.\n(8) It appears that the Panchayat's decision caused serious depression to the deceased. It is submitted that the deceased's strong affinity towards her parents and her inability to cope up with the situation coupled with her sickness, she was driven to such a situation to commit suicide.\n(9) R. Murugesan P.W.15, the RDO who prepared the inquest report has also stated about the panchayat's decision and has opined that \"the reason for her death may be the control exerted on her that she should not go to her mother's house\".\n(10) The trial court has observed that when the accused were questioned u/s. 313 Cr.P.C., they filed a written statement jointly. In that written statement it has been explained that\n\"Due to mental agony, incurable stomach-ache, pain over the body and the control by the first accused that she should not go to the house of her parents, Mangayarkarasi had committed suicide\".\nFurther that \"Arulvelu, without marrying for the second time for several years looked after the children with lot of love and affection so that the children may not feel the absence of their mother. The family of accused is a joint family. In that family, accused nos. 1 to 3 and Vijayakumar, another son of accused nos. 2 and 3 and his wife Padma are living jointly.\"\n(11) The trial court noticed serious contradictions and inconsistencies in the evidence of P.W.1 and those became relevant particularly when the High Court was dealing with the order of acquittal.\n(12) There are material contradictions in the statements of P.W.1 and P.W.3. P.W.1 says after the birth of first child there was demand. Whereas P.W.3 says after 6-7 months of the marriage there was demand. Further P.W.1 says that 20 days before the occurrence A-2 and A-3 said that customary gifts were not good. Whereas P.W.3 says that after 6-7 months of 1st incident deceased was told that the articles were not good. P.W.1 says 30 sovereigns. However, P.W.3 says 35 sovereigns. P.W.1 has stated that he said to A-2 that he could give 20 sovereign later on.\nHowever, P.W.3 does not corroborate the same. Though P.W.3 has stated that A-2 demanded car during the marriage negotiation, however, P.W.3 has not corroborated the evidence of P.W.1 with regard to the demand of car. It is submitted that none of the investigating officers have supported P.W.1 with regard to the demand of jewels, car, cash and/or with regard to harassment to the deceased due to non fulfillment of the above said items.\n(13) A. Periyasamy P.W.3 has not been examined by the DSP Sivanandam, RDO, Karuppusamy and others. Only CB CID Velu examined him. CB CID, Velu has stated that P.W.3 told him that the (a) P.W.1 is not his relative (b) not a family friend (c) accused is also not related (d) that he did not go for condolence when Mangai died (e) he does not know about Seer Varisai (f) he does not know about the dates on which he arranged the talks. However during his deposition he has admitted that he knows Palaniappan, the brother of Rukmani (P.W.1's wife) and he is his relative. P.W.20 has admitted that P.W.3 has said that Ramlingam (P.W.1) is his family friend.\nFor the above said reasons the evidence was of P.W.3 was not relied upon the trial court. It is submitted that the High Court has not considered these aspects.\n(14) D. Latha P.W.4 stated that she was present during the talks when the demand during the marriage negotiation took place. However, P.W.3 says during talks except P.W.1 and A-2 nobody was present. Further none of the witnesses including P.W.1 has said that P.W.4 was present during the talks. K. Sivanandhan, Deputy Superintendent of Police P.W.17 has stated that P.W.4 has not stated that failure to buy a car became a problem. She has not stated about the demand of 50 sovereigns and a car. Therefore the trial court has disbelieved the presence of P.W.4 during the talks. D. Latha P.W.4 has not given in her evidence that she had known personally that little by little 20 sovereign were given. The trial court has held that P.W.4 does not speak anything about the timings of the torture like four weeks, 20 days or 8 days before the death.\n(15) S.T.P. Muthusamy Mudaliar P.W.5's testimony does not inspire confidence. He says that during the verbal argument between A-1 and Rukmani Amma, A-1 asked about car. However, Yasodha P.W.2 did not say the same. Further, Rukmani Amma was not examined. It is submitted that the trial court has discussed the contradictions between P.W.2, P.W.1 and P.W.5 and about utterance with regard to car in the quarrel and therefore the trial court has not relied on P.W.5. It is submitted that apart from Rukminiammal, Shaktivel (P.W.1's son) and Planniappan was also not examined by the prosecution.\n(16) S.A. Periyasamy P.W.9 (Sambandhi of P.W.1) has not supported the case of prosecution. He says that he advised Ramlingam that they should not go to A-1's house often. During his cross-examination he has stated that \"I understood that Arulvelu and Mangaiyarkarasi were living a happy matrimonial life. There is a Car in my son Sivakumar's name TNC-4128. Its RC was in the name of Ramalingam S/o Palaniappa Mudhaliar.\"\n(17) The Assistant Judicial Magistrate PW 11 has stated that crime number of Exhibit A-1 has been manipulated. Further, P.W.13 has stated that \"Ramalingam has given only one complaint on that day. Exhibit A13 is the first original copy. Exhibit A18 is the original of another set of copies taken.\nThe person who has written Exhibit 13 has not written Exhibit A18\". The trial court has also discussed the discrepancy with regard to Exh. A-13 and Exh.A-18.\n(18) R. Murugesan P.W.15, RDO who prepared the inquest report has admitted that Yashoda (P.W.2) was examined on 30.03.89. He also stated that nearly 1000 houses would be there. It was crowded area with many houses. However, no neighbour was examined as a witness. Further, P.W.17 has admitted that A-1 said to him that he (A-1) brought the doctor. However, P.W.15 did not believe the same. It is submitted that P.W.15 has not given any cogent reason for disbelieving the same.\nIt is submitted that the conduct of P.W.15 (the RDO) was adversely commented by the trial court.\n(19) R.Murugesan P.W.15 has stated that Rukmaniammal said that on 18.3.89 Mangayarkarsi came to the house as she was ill. She asked as to why did she (Rukmaniammal) made controversy in a house where the death had taken place. She has also stated that on 21.3.89 she had sent medicine and tablets to Mangayarkarasi's husband's house through a car. It is submitted that R. Murugesan P.W.15 has admitted that Ramlingam (P.W.1) has not stated that A-1 had told him that he was going to get into another marriage. Further, he (P.W.1) did not say about demand of 5 sovereigns, Rs.10,000/- and that dowry was not enough. He (P.W.1) has also not stated before P.W.15 that Mangayarkarsi came to his house 8 days before and told that she could live only if he buys a car. Further, P.W.1 had also not stated before him that on Tuesday their daughter's parents in law asked them to buy a car. P.W.15 has further admitted that Yashoda (P.W.2) had stated that A-1 came to Rukmanniammal and told that 'because of you, A am very ashamed'. P.W.15 has also stated that P.W.1 had not told him that before marriage there was any discussion about dowry on presence of some persons. Further that none of the witnesses has stated that they discussed about jewels and car before the marriage.\n(20) The Panchayat's decision coupled with the condition of illness could have driven the deceased to commit suicide. This possibility cannot be ruled out. P.W.15 has also stated that on 22.3.89 a panchayat was convened to decide on the issue of dispute between both the families. In that Panchayat it has been decided that they should not visit each others house and Mangaiyarkarasi has to be advised accordingly.\n(21) The High Court has made erroneous observation that: \"It is not the panchayat decision that the deceased should not visit her parents. The only thing is P.W.1 should not go to the house of the accused\". As per the case of prosecution and as per the evidence it is crystal clear that the Panchayat's decision was that 'both the familier should not visit each other'.\n(22) The High Court failed to appreciate that the prosecution has failed to prove that with all certainty, the dowry demand was the only cause for the deceased to commit suicide. The High Court has simply presumed with the following words: \"The immediate temptation for her to commit suicide appears to be the demand of a car and subsequent quarrel of the first accused with the mother of the deceased. She has died in her in-law's house. Why should she commit suicide if she was happily living with the first accused?\"\n21. These are some of the material and vital aspects which clearly demonstrate that the trial court has carefully analyzed the entire evidence on record and the view taken by the trial court is certainly a possible or plausible view.\n22. In our considered opinion, the approach of the High Court in the impugned judgment is not in consonance with the settled principles of criminal jurisprudence. The High Court while reversing the judgment of the trial court observed that \"in all probabilities, I am inclined to hold that there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide.\" In criminal cases the conviction can be sustained only when there is clear evidence beyond reasonable doubt. The accused cannot be convicted on the ground that in all probabilities the accused may have committed the crime. The approach of the High Court is wholly fallacious and unsustainable in law.\n23. The real question which falls for our consideration is whether the view which has been taken by the trial court was a possible or a plausible view.\n24. We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct.\nThe trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.\n25. We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.\n26. The expression 'perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others (2001) 1 SCC 501 2000 Indlaw SC 2764 this Court observed that the expression 'perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.\n27. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others AIR 1966 Cal. 31 1964 Indlaw CAL 11, the Court observed that 'perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself.\n28. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341 1993 Indlaw SC 1021, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.\n29. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58 1976 Indlaw KAR 66, the Court observed that any order made in conscious violation of pleading and law is a perverse order.\n30. In Moffett v. Gough, 1 L.R. 1r. 371, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.\n31. In Godfrey v. Godfrey 106 NW 814, the Court defined 'perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.\n32. The expression \"perverse\" has been defined by various dictionaries in the following manner:\n1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.\n2. Longman Dictionary of Contemporary English - International Edition\nPERVERSE: Deliberately departing from what is normal and reasonable.\n3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.\n4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)\nPERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.\n5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition\nPERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.\n33. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761 2003 Indlaw SC 8, the Court observed thus:\n\"We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity.\"\n34. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10 1998 Indlaw SC 192, the Court while dealing with the scope of Arts. 32 and 226 of the Constitution observed as under:\n\"Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of \"guilt\" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.\nA broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.\"\n35. The meaning of 'perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312 1989 Indlaw SC 300, this Court observed as under:\n\"In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to S. 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.\"\n36. The legal position seems to be well settled and consistent at least since 1934 when the Privy Council decided the case of Sheo Swarup & Others v. King Emperor AIR 1934 PC 2271934 Indlaw PC 30 in which the Court (per Lord Russell) observed as under:\n\"..the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses..\"\nThe aforesaid decision was followed in subsequent judgments of this Court. [See: Surajpal Singh & Others v. The State, AIR 1952 SC 52 1951 Indlaw SC 23; Tulsiram Kanu v. The State, AIR 1954 SC 1 1951 Indlaw SC 75, Atley v. State of Uttar Pradesh AIR 1955 SC 807 1955 Indlaw SC 135; Balbir Singh v. State of Punjab AIR 1957 SC 216 1956 Indlaw SC 121; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 1962 Indlaw SC 520; Khedu Mohton & Others v. State of Bihar, (1970) 2 SCC 450 1970 Indlaw SC 315; Bishan Singh & Others v. The State of Punjab (1974) 3 SCC 288 1973 Indlaw SC 425; K. Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355 1978 Indlaw SC 108; Tota Singh & Another v. State of Punjab (1987) 2 SCC 529 1987 Indlaw SC 28143; Sambasivan & Others v. State of Kerala (1998) 5 SCC 412 1998 Indlaw SC 809; Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85 2002 Indlaw SC 1611; Harijana Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad (2002) 6 SCC 470 2002 Indlaw SC 1635; State of Rajasthan v. Raja Ram (2003) 8 SCC 180 2003 Indlaw SC 630; Budh Singh & Others v. State of UP (2006) 9 SCC 731 2006 Indlaw SC 635; Kalyan Singh v. State of MP (2006) 13 SCC 303 2006 Indlaw SC 1276; Kallu alias Masih & Others v. State of MP (2006) 10 SCC 313 2006 Indlaw SC 4; and State of Goa v. Sanjay Thakran & Another, (2007) 3 SCC 755] 2007 Indlaw SC 182\n37. In Shambhoo Missir & Another v. State of Bihar (1990) 4 SCC 17 1990 Indlaw SC 348, this Court observed thus:\n\"We are of the view that the High Court has interfered with the order of acquittal passed by the trial court not only for no substantial reasons but also by ignoring material infirmities in the prosecution case. Hence, we allow the appeals and set aside the order of the High Court convicting and sentencing the accused in both the appeals.\"\n38. In Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415 2007 Indlaw SC 121, this Court reiterated the legal position as under:\n\"An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.\nThe Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.\nVarious expressions, such as, \"substantial and compelling reasons\", \"good and sufficient grounds\", \"very strong circumstances\", \"distorted conclusions\", \"glaring mistakes\", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of \"flourishes of language\" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.\nAn appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.\nIf two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\"\n39. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 2008 Indlaw SC 1197, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:\n1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court.\nThe trial court's acquittal bolsters the presumption that he is innocent.\n2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.\n3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.\n4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has \"very substantial and compelling reasons\" for doing so.\n5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.\n40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 2009 Indlaw SC 1050 again examined judgments of this Court and laid down that\n\"An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases.\"\n41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.\n42. In State of Uttar Pradesh v. Banne Alias Baijnath and Ors. (2009) 4 SCC 271 2009 Indlaw SC 1633, a two-Judge Bench of this court of which one of us (Bhandari, J.) was a member had an occasion to deal with this controversy in detail has laid down some of the circumstances in which this court would be justified in interfering with the judgment of the High Court. The circumstances discussed in the judgment are illustrative not exhaustive.\ni) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;\nii) The High Court's conclusions are contrary to evidence and documents on record;\niii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;\niv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;\nv) This Court must always give proper weight and consideration to the findings of the High Court;\nvi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.\n43. The appellate courts must keep in view these aforementioned observations in dealing with the appeals where the trial court has acquitted the accused.\n44 In Dhanapal v. State 2009 Indlaw SC 1083 by Public Prosecutor, Madras (Criminal Appeal No.987 of 2002 decided on September 1, 2009), this Court again examined the aforementioned decisions and analyzed the principles emerging out of the said decisions, it seems to us that despite series of judgments, the High Court has not clearly appreciated the legal position. Unquestionably, the Appellate Court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallized by aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court.\n45. We have re-examined the entire case because of the conflicting judgments of the Trial Court and the High Court. On careful marshalling of the entire evidence and the documents on record, we arrive at the conclusion that the view taken by the trial court is a possible and plausible view. The judgment of the trial court cannot be termed as perverse.\nThe High Court ought not to have substituted the same by its own possible view. The impugned judgment of the High Court cannot stand the scrutiny of the well settled legal position which has been crystallized for more than 80 years since the case of Sheo Swarup. In the facts and circumstances of this case, we are constrained to set aside the impugned judgment of the High Court.\n46. Consequently, these appeals filed by the appellants are allowed. The impugned judgment of the High Court set aside and that of the trial court is restored. Appeal allowed\nAppeal allowed\n"}
+{"id": "P1uRr6YICt", "title": "", "text": "Triveni Rubber and Plastics, Tiruvalla, Kerala v Collector of Central Excise, Cochin\nSupreme Court of India\n\n30 March 1993\nC.A. No. 464(NM) of 1985 (Arising as an appeal from the Judgment and Order Dt. of the CEGAT, Dt. 27 September 1984 in Appeal No. ED(SB) A. No. 2921/83-C, (1994) 72 ELT 897 (ND))\nThe Order of the Court was as follows:\n1.  This appeal is preferred under Section 35-L of the Central Excises and Salt Act, 1944 against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal. The appellant - Triveni Rubber and Plastics - is a partnership firm. It established a factory for manufacturing tread-rubber. Production was started on 8-10-1979. Tread-rubber was dutiable under Tariff Item 16-A(2) of the Schedule to the Act. At that time certain exemption notifications were in operation. According to the notification applicable to the year 1980-81, it is stated, a unit producing goods of a value of less than Rs. 5 lakhs was exempt from the provisions of the Act. The said exemption limit was raised to Rs. 15 lakhs for the year 1981-82.\n2.  On 30-9-1981, a search was conducted of the premises of the appellant by the officers of the department. They found that a substantial quantity of tread-rubber (5807 kilograms) was removed from the factory without making an entry in the relevant records. They also recorded the statement of the managing partner of the factory in the presence of another partner. In this statement, the managing partner admitted not only that 5807 kgs of tread-rubber was removed from the premises without making an entry but also that they were doctoring their accounts so as to show that their annual production was below the exemption limit.\n3.   On the basis of the material gathered at the time of the inspection, a show-cause notice was issued to the appellant calling upon him to explain as to why his production during the said years be not estimated at a particular figure and why he should not be called upon to pay the appropriate duty as well as penalty in that behalf. (It is not necessary for the purposes of this appeal to mention the precise figures specified in the show-cause notice; suffice to say that according to the estimated figures the appellant was not entitled to the benefit of exemption notification). The appellant showed cause, where after the Collector passed orders on 13-5-1983 confirming the show-cause notice. The appellant preferred an appeal before the CEGAT. The Tribunal considered the various submissions made by the appellant at length but finding that there is no substance therein, dismissed the appeal.\n4.  In this appeal it is submitted by Mr. Anam, learned counsel for the appellant that the estimate made by the Collector is arbitrary based on no relevant material and is in the nature of a wild guess. He, therefore, requested that the matter may be remitted back to the Collector for further enquiry. We are unable to accede to the said submission. The quantum of tread-rubber produced in the appellant's factory during the said two years is a question of fact. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the concurrent finding of fact cannot be disturbed by us in this appeal under Article 136 of the Constitution. This is not also a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.\n5.  It is argued by Mr. Anam that the only basis of the estimate of the production is the consumption of electricity during the said period. What happened in this case is this : The Collector took the period from October 1979 to May 1980 as the base period. He ascertained the quantity of tread-rubber produced and the quantity of electrical energy consumed. Adopting the ratio between the consumption of electricity and the quantum of tread-rubber produced during the base period he estimated the production of tread-rubber during the disputed period on the basis of the electricity consumed. Mr. Anam, submits that during the base period, the electricity meter was not recording properly and that it was running in the reverse direction.\n6.   We have been unable to appreciate this contention. If the meter was running in a reverse direction during the base period, it would not have recorded any consumption. But evidently that was not what happened. The meter did record the consumption. One could understand the appellant saying that the meter recorded less than the actual consumption, but that was not his case. Nor could he produce any material in support of the said allegation. Mr. Anam relies upon a letter dated 16-11-1985 from the Assistant Executive Engineer, Electrical-Major Section, Changanacherry, in support of his contention.\n7.   Firstly, this letter has been obtained long after the order of the Collector.\n8.   Secondly, this letter says that the meter was running in reverse direction. This theory is unacceptable in the circumstances of the case, as pointed out hereinbefore.\n9.  It was then argued that the quantity estimated by the Collector is in excess of the installed capacity of the appellant's factory. Even this aspect has been dealt with and rejected by the Tribunal. It has been shown on the basis of the production figures disclosed by the appellant himself that his argument based upon the installed capacity cannot be accepted.\n10.  Mr. Anam contended that according to Rule 173-E of the Central Excise Rules, the power consumption alone cannot be taken as the basis for estimating the production and that the several factors mentioned in the rule must all be taken into consideration together. Sub-rule (1) of Rule 173-E which alone is relied upon reads as follows:\n\"Rule 173-E. Determination of Normal Production. - Any officer duly empowered by the Collector in this behalf may fix the quantum and period of time when the production in the assessee's factory was considered normal by such officer having regard to the installed capacity of the factory, raw material utilisation, labour employed, power consumed and such other relevant factors as he may deem appropriate. The normal quantum of production during a given time so determined by such officer shall form the norm. The assessee shall, if so required by the said officer, be called upon to explain any shortfall in production during any time, as compared to the norm. If the shortfall is not accounted for to the satisfaction of the said officer, he may assess the duty due thereon to the best of his judgment, after giving the assessee a reasonable opportunity of being heard.\"\n11.  On a reading of the rule we cannot agree that the officer empowered by the Collector or the Collector cannot determine the normal production unless all the factors mentioned in the rule are present simultaneously. The rule does not say so nor is it capable of being so interpreted.\n12.   In a case like the present one, where the accounts are found fabricated and untrue, the figures of raw material utilised or the particulars of labour employed may not be available. It is not the case of the appellant that even though acceptable material with respect to these factors was available it was not considered.\nThe appeal accordingly fails and is dismissed. No costs.\nAppeal dismissed.\n"}
+{"id": "jMPqPEBqUh", "title": "", "text": "Shambhoo Missir and Another v State of Bihar\nSupreme Court of India\n\n24 July 1990\nCr.A. Nos. 133 and 150 of 1979\nThe Judgment was delivered by: P. B. Sawant, J.\n1. These are two appeals filed by two different sets of accused who were arraigned as offenders for the incident which took place on August 19, 1967. The prosecution case is that at about 8 a.m. on August 19, 1967, one Dhanushdhari Missir (PW 1) who is the informant in the case, left his house along with his father, Rajendra Missir to harvest the crop, his father had engaged some labourers and the crop was, according to him, harvested till about 10 a.m. on that day. At about that hour, his father Rajendra started from the land to return home for his meals and the informant followed his after a little while. On the way home, the informant heard his father's cry \"Jan Bachao\", and on hearing it he ran towards his father and saw that accused, Shambhoo Missir and Munib Tikulihar (appellants in Appeal No. 133 of 1979) assaulting his father with garasa, and Sarabjit Chamar and Paltan Kurmi (appellants in Appeal No. 150 of 1979) with sticks. Rajendra fell down and thereafter Shambhoo, Munib and Paltan caught hold of his hands and legs and Sarabjit chopped off his nose with a hasua. Hearing the shouts and cries, several persons arrived and the accused fled away.\n2. According to the prosecution further, the assault took place on the western flank of the kutccha road running north to south and adjacent to the sugarcane field of the informant. The prosecution case further is that Rajendra named the four accused persons as his assailants to whoever came near him at that time without their questioning him about it. Thereafter, Mukti Missir (PW 12) who is also the son of Rajendra and the brother of the informant and who had also seen the incident, went to the village and brought a cot on which Rajendra was taken to his house. From there, he was taken to Bettiah Hospital on a tyre-cart. On their way to the hospital, at a place called Parsauni about three miles from the place of the incident, Rajendra was placed on a truck for being taken to the hospital. But on the way, he breathed his last. The dead body was taken to the hospital and from there the Sub-Inspector of Police, Bettiah (PW 14) was informed about it. He came to the hospital and recorded the statement of the informant at about 4.30 p.m. He also held inquest. It appears that since the incident had taken place within the jurisdiction of Bagaha Police Station, the Sub-Inspector of that police station (PW 15) also reached the hospital on getting information and took over the investigation at about 6.10 p.m. from PW 14.\n3. On these facts, the four appellants before us were charge-sheeted. The trial court disbelieved the prosecution case against the accused and acquitted them. Against the said acquittal, the State preferred an appeal and the High Court allowed the appeal and convicted Shambhoo and Munib, i.e. appellants in Appeal No. 133 of 1979 for the offence under Section 302 read with Section 34 IPC, and sentenced them to imprisonment for life. The High Court also convicted Sarabjit and Paltan (appellants in Appeal No. 150 of 1979) for the offence under Section 304 Part II read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for seven years each. The High Court further convicted Sarabjit for offence under Section 326 IPC and sentenced him to undergo rigorous imprisonment for five years. His sentence was directed to run concurrently. It is aggrieved by this order of conviction passed by the High Court that he four accused have preferred these two appeals. It appears that during the pendency of these appeals the appellant Munib in Appeal No. 133 of 1979 and the appellant Sarabjit in Appeal No. 150 of 1979 died. The present appeals are pursued by the surviving appellants in each case.\n4. At the instance of both the parties, we went through the entire evidence on record and the judgments of both the trial court as well as the High Court. We find that the trial court had given cogent reasons to acquit the accused, and the High Court has interfered with the said order without substantial reasons. The High Court has also failed to deal effectively with the grounds which impelled the trial court to disbelieve the prosecution evidence against the accused.\n5. The substance of the prosecution case is that he deceased Rajendra died as a result of the assault in question at about 3 p.m. on the very day of the incident. However, on the basis of the medial evidence, the defence has succeeded in establishing that he had died soon after he left his house at 8 a.m. Dr. Shambhoo Sharan (PW 13) who performed the post-mortem examination of the dead body, has stated both in his report as well as in his deposition, that there was 8 ounces of undigested food in the stomach of the deceased. If as alleged by the prosecution the death had occurred at 3 p.m., no such undigested food would have been found in the stomach at that hour when the food was taken by the deceased before 8 a.m. If this is so, then the whole case of the prosecution must crumble for, this will establish beyond doubt that Rajendra had died very soon after 8 a.m. and none of the so called eye-witnesses had seen the assault on Rajendra.\n6. The said fact will also demolish the entire version of the three dying declarations made by the deceased to various prosecution witnesses at three different places. The non-explanation by the prosecution of the undigested food therefore casts serious adverse reflections on the entire investigation in the present case. Unfortunately, the High Court has failed to deal with this very important aspect of the evidence on record which has been highlighted by the trial court. It also strengthens the defence version that the accused have been involved in the present case by the obliging witnesses and unfair investigation.\n7. The trial court in addition, has relied on other circumstances to negative the prosecution case. It has pointed out material contradictions in the prosecution evidence which falsifies the prosecution version even otherwise.\n8. In the first instance, it is pointed out that there is no evidence on record that the villagers had at that time started harvesting and the deceased's land was harvested on that day either wholly or partly. If that is so, then the entire version of the prosecution that the deceased accompanied by his son, the informant, had gone for harvesting to his field is gravely in doubt. This will also throw doubt on the prosecution story that the informant had accompanied the deceased to the field as alleged and that the deceased had engaged about 7 to 8 labourers for harvesting, on that day. In fact, Mukti Missir (PW 12) the other son of the deceased and the brother of the informant has admitted in his deposition that he did not know till the day he was examined in the court, about the number of the labourers who were engaged or their names except that of one Jwahir Chamar. Nor could the informant himself give the names of the labourers except that of the said Jwahir.\n9. Secondly, it is pointed out by the trial court that Jwahir Chamar (PW 7) could also give the names only of two of the labourers and females but not of others.\n10. Thirdly, the Investigating Officer also did not testify to the fact that the deceased's field was harvested on the day of the occurrence.\n11. Fourthly, the version of the prosecution that the deceased had made dying declarations at three places, namely, in the field, at his house and at Parsauni and named the accused although nobody asked him about it sounds strange enough.\n12. Fifthly, the testimony of the informant himself is far from being above suspicion in as much as although it is his case that he had seen the actual assault and at that time there were other witnesses present to witness it, it has come out in his evidence that he did not know from where the other witnesses had come, and that he had no talk with them fate the incident. The trial court has successfully shown that the evidence of the other prosecution witnesses - the so called eye-witnesses, namely, PWs 3, 4, 9, 11 and 12 was inconsistent and thoroughly unsatisfactory and they could not have seen the incident. The trial court has given convincing reasons to show that their testimony was false. The trial court has further emphasised the fact that actually there was a dispute between the deceased and one Harbans Missir, as a result of which Harbans Missir had filed a criminal case against the informant and his brother. There was also a criminal case filed against them by their uncle Pardyuman. It was admitted by constable (PW 16) that because of the dispute between the deceased and the said Harbans Missir two constables were deputed to the village for maintaining peace. The Assistant Sub-Inspector (PW 5) has also admitted that because of the dispute between the deceased and Pardyuman, a constable was deputed to maintain peace 20 days prior to the present occurrence. This shows that the deceased had many enemies at the time of the incident.\n13. Lastly, the trial court has pointed out that all the prosecution witnesses were interested in the deceased. PWs 1 and 12 were sons of the deceased while PWs 3, 4 and 11 belonged to the party of the prosecution till the deceased were taken to Bettiah hospital. Prosecution witnesses 3 and 4 were arraigned in a proceeding under Section 17 of the Criminal Procedure Code along with the other members of the prosecution party.\n14. The High Court did not deal with any of these circumstances pointed out by the trial court and has given no reasons to negative them or to show as to how they were either improper, unjustified or unreasonable.\n15. We are, therefore, of the view that the High Court has interfered with the order of acquittal passed by the trial court not only for no substantial reasons but also by ignoring material infirmities in the prosecution case. Hence, we allow the appeals and set aside the order of the High Court convicting and sentencing the accused in both the appeals.\nAppeals allowed.\n"}
+{"id": "8Y7XsrSvBp", "title": "", "text": "Narendra Singh & Anr v State Of M.P.\nSupreme Court of India\n\n12 April 2004\nAppeal (crl.) 298 of 1997\nThe Judgment was delivered by : S. B. Sinha, J.\n1.  The Appellant No. 1 herein by reason of the impugned judgment reversing a judgment of acquittal passed by learned Sessions Judge, Dhar on 6.1.1984 was found guilty of commission of an offence under Section 302 of the Indian Penal Code for having committed murder of Bimlabai by throttling on 6.5.1983 at about 5.30 p.m. at Dhanmandi, Dhar at house No. 16, Dhanmandi, Dhar as also under Section 201 of Indian Penal Code for causing disappearance of evidence by setting her on fire after causing her death; whereas the appellant No. 2 was found guilty of commission of an offence under Section 201 of the Indian Penal Code.\n2.  The relationship between the appellants herein are son and mother. Along with them, the husband of appellant No. 2 Hari Singh and their daughter Kusum were chargesheeted for commission of murder of the aforementioned Bimlabai. The deceased Bimlabai was married to the appellant No. 1 herein on or about 21.4.1982 in relation whereto the betrothal ceremony was held in December, 1980. The appellant No. 1 after the said betrothal ceremony was appointed as a bus conductor by the Madhya Pradesh State Road Transport Corporation. About 4 and = months thereafter, he was suspended questioning which he filed a civil suit.\n3.  At the relevant time, the family members of the appellants were living as tenants in a portion in the upper storey of the house of Bansidhar, P.W.1. Daulatram, another tenant, used to reside in the front portion in the first storey in the same house. One Moi Babu was a tenant on the front portion in the ground floor whereas Omprakash Shukla was tenant in the rear portion thereof.\n4.  Allegedly a demand was made by the accused persons for a wrist watch and a chain of gold at the time of marriage to which Ramsingh, PW5 (brother of the deceased) expressed his inability. Sometimes later, the said demand was reiterated. The appellant No. 1 was eventually dismissed from services whereafter financial assistance was allegedly given to him by Ram Singh. The marriage of younger brother of Ramsingh, Rajendra was settled in December, 1982. His Tika ceremony was to take place on 24.4.1983 at Indore. Ramsingh came to the house of the accused persons to invite them and take Bimla with him to his house. For the purpose of fighting out a suit as regard the termination of his service, Narendra allegedly asked for a sum of Rs. 2000/- from Ramsingh wherefor he expressed his inability saying as his brother is going to be married after one month he was not in a position to spare the amount. Allegedly, thereupon Narendrasingh and Harisingh threatened stating \"You will have to give us an amount of Rs. 2000/- otherwise we will not send Bimla to attend the marriage ceremony of her brother Raju at Indore.\"\n5.  The incident in question took place on 6.5.1983. It is alleged that on 6.5.1983 at about 5 p.m. Asha, PW7 (daughter of Daulatram) saw signs of fire coming out from the house occupied by the accused persons. PW2 Ramkunwar Bai also noticed the fire. They gave a call to the appellants but none replied. PW-10 Kusha Bhau and others also went to the house to extinguish fire. Thereafter the fire brigade as also the police reached at the place of occurrence. The dead body of Bimlabai was found lying in the kitchen of the house in burnt condition. A jerry can, its cover and a match box were also found near the dead body in the kitchen. The autopsy on the dead body of Bimlabai was conducted at about 8.15 p.m. on 7.5.1983.\n6.  Ram Singh, the informant came to learn about the said incident on the next day. In relation to the said incident a First Information Report was lodged by Ram Singh PW-5 at 6.30 p.m. on 7.5.1983 in the Police Station Dhar. The appellants herein with Harisingh and Kusum were chargesheeted under Sections 302 and 201 read with Section 34 of the Indian Penal Code. The case thereafter was committed to the Court of Sessions. Before the learned Sessions Judge, 17 witnesses were examined on behalf of the prosecution; whereas 6 persons were examined as court witnesses. A plea of alibi was put forth by the appellants herein in the trial stating that the appellant No. 1 was attending a marriage ceremony in the house of Illias Khan, CW-3. The appellant No. 2 also raised a plea of alibi.\n7.  PW-1 Banshidhar is the owner of the house. PW-2 Ramkunwar Bai is an adjacent neighbour of the appellants. PW-3 Harak Chand Mittal is an advocate, who lives at some distance from the house of accused persons, had informed the police about fire on phone. PW-4 Om Prakash is also a neighbour. He was a witness to the inquest report, site plan and seizure memo. PW-5 Ramsingh is the first informant. PW-6 and CW-1 are the doctors who conducted the post mortem examination over the dead body of Bimlabai. PW-7 Asha, PW-10 Kusha Bhau, PW-13 Yashoda Bai, PW-14 Gulab Singh are the other witnesses. PW-12 Bhagwanti Bai is the sister of the deceased. The court witnesses were not examined by the prosecution and all of them for some reason or the other were examined as court witnesses. CW2 to CW6 sought to prove the plea of alibi of the appellants.\n8.  The Learned Sessions Judge disbelieved the prosecution case and recorded a judgment of acquittal inter alia on the ground that as admittedly the door of the kitchen had to be broken open; and as the death of Bimlabai presumably took place in between 4.15 p.m. and 5.30 p.m., it was impossible for the assassin to jump from the window in the lane. Furthermore, as no person has seen the assassin, possibly it was a case of suicide. Assuming that it was a case of murder, the learned Sessions Judge wondered, keeping in view the place of occurrence vis--vis the points of possible entries thereto, as to how the assassin of Bimla made his exodus from that room.\n9.  The learned Sessions Judge did not fully rely upon the post mortem report having regard to certain cuttings and over-writings therein. The learned Sessions Judge opined that although no mala fide intention could be attributed to the doctors, there existed a possibility that they committed some mistakes in recording their opinion as regard the cause of death. It was further held that the plea of alibi of the accused persons could neither be ignored nor said to be unreliable.\n10.  The learned Sessions Judge also disbelieved the evidence of PW-1 Bansidhar holding that from his evidence the presence of the appellants at the place of occurrence at the relevant time had not been proved.\n11.  The State preferred an appeal thereagainst. The said appeal was heard by a Division Bench of the High Court comprising Justice A.B. Qureshi and Justice V.D. Gyani. Whereas Qureshi, J. despite holding that the death was homicidal in nature, was of the opinion that the guilt of the accused persons was not brought home; whereas Gyani, J. allowed the State appeal holding the appellants guilty under Sections 302/34 and Section 201 of the Indian Penal Code and sentenced them to undergo life imprisonment. In view of the difference of opinion the matter was assigned to Chitre, J. by the Chief Justice of the High Court. By reason of the impugned judgment dated 20th September, 1996 aggreeing with the judgment of Gyani, J. the learned Judge held the appellant No. 1 to be guilty for commission of an offence under Section 302 read with 201 of the Indian Penal Code and the appellant No. 2 to be guilty for commission of an offence under Section 201 of the Indian Penal Code and sentenced her to undergo three years of rigorous imprisonment. A judgment of acquittal was recorded in favour of Harisingh whereas Kusum was although convicted for commission of an offence under Section 201 of the Indian Penal Code but was sentenced to the period already undergone.\nIt was held:\n\"72. Now, therefore, what comes out in the case is that:\n(i) there was a demand of dowry which was not fulfilled. Narendrasingh was annoyed. Thus, there was motive for murder.\n(ii) Vimlabai met homicidal death by throttling and thereafter was set to fire. The setting of fire must have been with intent to cause disappearance of evidence for screening the offender;\n(iii) At least three persons, i.e., Narendrasingh, Gulbadanbai and Kusum were present in the house in the after noon and till the body was found inside the kitchen room. Had the murderer been anybody else Vimlabai must have raised alarm. Persons in the family including these accused persons could have also raised alarm and caused resistance to such murder;\n(iv) As no alarm was raised by Vimlabai, this goes to show that the person (murderer) must have been close relation of her and in all probability the husband. A Hindu wife while assaulted by her husband would not cause resistance. Sometimes even alarms are not raised unless the injuries caused are very painful and serious.\"\n12.  Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the appellants inter alia would submit that the preponderance of evidence not only show that the post mortem report should not have been relied upon by the High Court having regard to the fact that the burns have been held to be ante mortem in nature although the cause of death was said to be asphyxia. It was pointed out that the findings of the High Court to the effect that the death was a homicidal one by asphyxia was based on two factors:\n(i) no carbon particles were found in the respiratory tract or the trachea, and\n(ii) 200 CC blood was found in front of pharynx and in the part of tracheal and sub-surrounding subcutaneous tissues.\n13.  The learned counsel would urge that the carbon particles cannot be seen with open eyes particularly when there was blood and as such it was necessary to remove the blood by opening the skull or through legs.\n14.  The learned counsel would further submit that presence of accused at the time of death cannot be said to have been proved by the prosecution as the court witnesses categorically stated about their presence at the relevant time at the house of Illias Khan. It was urged that the evidences of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha should not have been relied upon by the High Court as regard presence of the appellant No. 1 having regard to the improvement/omission/contradiction contained in their statements. The learned counsel would submit that PW-1 has been contradicted in material particulars by Inder Dhobi CW- 5 whose presence had not been disputed by the prosecution witness. It was pointed out that the statements of the witnesses examined on behalf of the prosecution were recorded on the 2nd or 3rd day of the occurrence and thus the same could not have been relied upon. Our attention had also been drawn to the fact that according to PW-1 himself he had reached his house about 5.15 p.m. whereafter he went to latrine and only after his coming out therefrom, he noticed the fire, washed his hands, climbed on the top of shed when Nadkar and Inder Dhobi were also present; and in that view of the matter he cannot be a witness as regard the first part of the incident as by that time, even the doors of the kitchen had also been broken open and people had already arrived in large number. It was further contended that it was admitted by PW-1 that he came to know about the death of Bimlabai from Shri Mittal, which fact also makes his statement doubtful.\n15.  As regard the finding of the High Court that Bimlabai died in between 3.00 p.m. to 5.30 p.m., Mr. Jain would point out that the evidence of PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha would categorically show that the incident must have taken place after 5.00 p.m. The learned counsel laid emphasis on the fact that admittedly water in the tap comes at 5.00 p.m. whereafter only the fire was noticed by the witnesses examined by the prosecution.\n16.  The finding of the High Court to the effect that the appellant No. 1 after commission of the offence locked the room inside and slipped out of the window, Mr. Jain would urge, is untenable keeping in view the height of the window, the size of the room being 5'x 6' as also the fact that some people had already gathered near the water tap and, thus, it would be impossible for anyone to jump from the open space without being noticed and that too remaining unhurt.\n17.  A judgment of acquittal without any cogent and sufficient reasons should not be reversed, Mr. Jain would argue.\n18.  The learned counsel would further submit that the prosecution has not been able to prove any motive for commission of the offence as the prosecution witnesses accepted that the relationship between the husband and wife was cordial and only because a sum of Rs. 2000/- was asked for the same by itself could not be the motive on the part of the accused persons, for commission of the offence.\n19.  Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, on the other hand, would support the judgment of the High Court inter alia contending that; whereas the judgment of the learned Sessions Judge was based on surmises and conjectures, the High Court assigned sufficient and cogent reasons for arriving at its findings. It was pointed out that in a case like the present one, the Court should consider the matter having regard to three scenarios in mind, viz.:\n(i) Suicide committed by Bimlabai;\n(ii) Murder by intruder; and\n(iii) Murder by the accused; and arriving at a finding upon excluding the one or the other possibility.\n20.  The learned counsel would contend that the deceased was a young girl and in view of the fact that she must have been having the same state of mind for more than a year and, thus, she was unlikely to commit suicide only because she was not sent by her in-laws to attend the marriage of her brother. In any event, having regard to the presence of ligature mark on her neck, commission of suicide by self strangulation and thereafter setting herself on fire must be ruled out.\n21.  The learned counsel would contend that commission of murder of Bimlabai by an intruder is wholly improbable. It was pointed out that PW-2, PW-7, CW-2 and CW-6 categorically stated that the appellant No. 1 was at home at about 3.00-3.30 p.m. The learned counsel would contend that if the appellants and Kusum were present in the house and if the story that immediately prior to the occurrence the family was visited by PW-13, it is impossible for an intruder to come and commit the offence without being noticed. The learned counsel would aruge that such an offence is not possible to be committed without drawing the attention of others, without any noise and without any shriek by the victim which are clear pointers to the fact that throttling of the deceased must have been committed by somebody who was known to her and had access, and, in that view of the matter the offender cannot be any other person but the appellant No. 1.\n22.  Ms. Makhija would contend that demand of dowry, an unhappy marriage, the threat by the appellant No. 1 and his father and PW'5's refusal to give to the accused person the sum of Rs. 2000/- on demanded by them, establish sufficient motive for the accused persons to commit the murder of Bimlabai and then to make the same look like a case of suicide. The burn injuries suffered by the appellant No. 2 in hand is also a pointer to the fact, Ms. Makhija would contend, that she had also taken part in setting fire on the deceased.\n23.  It was urged that as the plea of alibi of the appellants have not been proved and keeping in view the proximity of time and the place of occurrence and time of murder, it can safely be presumed that the entire occurrence took place within 10-15 minutes and it was possible for the appellant No. 1 to come back from the House of Illias Khan and upon commission of the crime go back to his house to show his absence. Furthermore, the burden of proof when a plea of alibi has been found to be false lies upon the accused persons, Ms. Makhija would argue.\n24.  It is a case which, in our considered opinion, requires a broad based consideration.\n25.  We will proceed on the basis that the death of Bimlabai was a homicidal one. We will also assume that the contents of the post mortem report is correct and, thus, the death of Bimlabai was caused due to asphyxia. We may further assume that the appellants herein have failed to prove their plea of alibi. What, however, is baffling to us on the manner in which the offence is alleged to have been committed. The High Court arrived at its findings relying upon the spot map prepared by learned trial Judge which indicates that there existed a window in the kitchen without any grill; the height whereof from the road is said to be 11 ft. holding :\n\"71. From the map proved by the prosecution, the site map and the note prepared on the direction of the Judge go to show that there were two places wherefrom a person in the kitchen and the side room of kitchen could slip away; (i) by window which is nearly 10 to 11 feet in height from the ground. (It is note worthy that it is not a construction with plain wall upto 11 feet but with residential quarters in the ground floor and therefore, it was not impossible to slip away from that window after commission of murder), and (ii) the other possibility that the person who committed murder came out from the gap between the wall containing door No. 10 and 12 and the roof which was probably closed subsequently and, therefore, marks of new constructions of the wall above the door upto roof.\"\n26.  The High Court, therefore, considered the escape of the assassin of Bimlabai through one of the two gaps as possible but did not assign any reason as to how the same can be said to have been established. Furthermore, it does not appear that such a case was made out by the prosecution. Investigation in this behalf does not appear to have been carried out to show as to whether it was possible for a person to climb the wall before slipping out of one of the two places mentioned by the High Court nor any material in support thereof was brought on record. The witnesses did not say that they had seen any foot mark of any person on the wall nor any other evidence suggests that one of the two open places would otherwise be used by the offender as possible escape routes. If the time of incident is taken to be nearer 5 p.m. than 3.30 p.m., it would be well nigh possible for the appellant No. 1 to climb the wall, sneak through the open places and jump from the window to the lane without being noticed. It also does not appear that the attention of the appellants had been drawn by the Sessions Judge to any piece of evidence seeking their explanation thereabout in their examination under Section 313 of the Code of Criminal Procedure. Had it been the prosecution case that the appellant No. 1 after throttling the deceased and setting her on fire escaped through one of the two open places mentioned by the High Court, it was obligatory on the part of the Court to give an opportunity to the appellants to explain thereabout. Such a circumstance, had it been put to the appellant no.1, could have been explained away by him. The appellants were, therefore, prejudiced by not being given a chance to explain the said purported material against him. It is not a case where no prejudice can be said to have been caused to the appellants.\n27.  The findings of the learned Sessions Judge to the effect that had any person slipped or gone away from that window, pedestrians through the lanes must have seen such person cannot, in our opinion, be said to be irrational warranting interference by the High Court. If the observations of the High Court to the effect that persons going through the road do not keep a vigil on such movements, is correct, the same by would itself give rise to some surmises keeping in view the fact that there existed a greater possibility of the appellant no.1 being seen as his jumping from the window would have been abnormal which would attract the attention of the persons who had assembled to take water from the tap. We also fail to see any force in the finding of the High Court to the effect that only because the appellant no.1 was the husband of the deceased he had a chance to throttle her all of a sudden without any resistance. The finding of the High Court to the effect that Gulbadanbai having sustained burn injuries in her hand, the probability of her presence at this time of setting of fire cannot be ruled out is contradictory to its ultimate finding that she was guilty of offence only under Section 201 of the Indian Penal Code and not under Section 302/34 thereof.\n28.  It is now well-settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however, grave may be cannot take place of a proof. It is equally well-settled that there is a long distance between 'may be' and 'must be'.\n29.  It is also well-known that even in a case where a plea of alibi is raised, the burden of proof remains on prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10 SCC 79 1996 Indlaw SC 2240, Mahabir Singh Vs. State of Haryana, (2001) 7 SCC 148 2001 Indlaw SC 20747 and Shailendra Pratap & Anr. Vs. State of U.P. (2003) 1 SCC 761 2003 Indlaw SC 8), which had not been adhered to by the High Court.\n30.  The entire case is based on circumstantial evidence. Pieces of circumstances, however, strong may be, it is well- known that all links in the chain must be proved. In this case a vital link in the chain, viz., possibility of the appellant No. 1 committing the offence, closing the door and then sneaking out of the room from one of the two places had not been proved by the prosecution.\n31.  We, thus, having regard to the post mortem report, are of the opinion that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld.\n32.  For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained which is set aside. Accordingly, the appeal is allowed. The appellants are on bail. They are discharged from the bail bonds.\nAppeal allowed.\n"}
+{"id": "8GrgmolaHr", "title": "", "text": "Sambasivan & Ors. v State Of Kerala\nSupreme Court of India\n\n8  May  1998\nCriminal Appeal No. 180 of 1990\nThe Judgment was delivered by : Syed Shah Mohammed Quadri, J.\n1.  In this statutory appeal under Section 379 Cr. P.C. accused 1 to 3 in Sessions Case No. 154 of 1984 on the file of the 1st Additional Sessions Judge, Trivandrum, are the appellants. They assail the validity of the judgment of June 8, 1989 passed by a Division Bench of Kerala High Court in Criminal Appeal No. 87 of 1986 setting aside their acquittal by the trial court and convicting and sentencing them as follows: under Section 302 read with Section 34, I.P.C. imprisonment for life; under Section 307 read with Section 34, I.P.C. - rigorous imprisonment for seven years and Section 3 of the Explosive Substances Act, 1908 - imprisonment for five years. All the sentences were directed to run concurrently.\n2.  In this case Trade Union rivalry between INTUC and CITU on the one hand and BMS on the other culminated into the atrocious incident of April 21, 1983 in which one Thanukuttan @ Nanukuttan died and three persons PW-1, PW-2, and PW-4, suffered injuries. In respect of this incident the police filed charge-sheet against the appellants and twenty other persons of whom A-13 dies and the remaining were tried on the following facts for offences under Sections 120B, 143, 147, 148, 149, 324, 307, 302 and 109 of the I.P.C. and Section 3 of the Explosive Substances Act, 1908. The headload-workers employed in the industrial Estate of Pappanamcode are members of either INTUC or CITU (hereinafter referred to as 'the complainant group') whereas 'the accused group' belongs to BMS union. The members of 'the complainant group' were preventing the members of 'the accused group' from working in the Industrial Estate.\n3.  For this reason accused 1 to 20 of the accused group hatched a conspiracy to murder the headload-workers of the complaint group pursuant to which A-23 had agreed to supply the country made bombs on April 20,1983. On the morning of April 21, 1983, accused A-21 and A-22 took the bombs to a by lane at Vettukuzhi near the Pappanamcode Industrial Estate and gave them to A-1 at 10.15 a.m. Thereafter with the common object of causing voluntary hurt and causing death of the members of the complainant group, A-1 to A-20 formed themselves into an unlawful assembly at 10.45 a.m. ; among them A-1 to A-3 were carrying bombs, A-4, A-5, A-10 to A-15 were carrying bricks and A-6 to A-9 and A-16 to A-20 were holding sticks. They proceeded to the said Industrial Estate where PWs 1 to 5 and 7 among others were relaxing on the platform in from of General Metals as there was no work on that date.\n4. While one of them was reading magazine \"Kumari\" weekly, the others were hearing ad Nanukuttan was sleeping. After reaching there A-1 threw bomb at PW-1 who suffered injuries on hands and thighs; A-2 threw bomb at nanukuttan who was severely injured and A-3 also threw bomb which fell in front of PW-2. A-4 and A-5 threw a brick at PW-2. A-6 to A-9, A-19 and A-20 attempted to beat PWs 3,4 and 5. A-6 and A-19 beat PW-3 with sticks A-10 to A-15 threw bricks at PW 1 and others whereas A-16 to A-18 attempted to beat PW-1 and others. Nanukuttan and P.W. 1 were taken to the Medical College Hospital, Trivandrum where nanukuttan was declared dead at about 11.15 a.m. In the Medical College Hospital PW- 1, PWs 2 and 4 were given treatment. PW-14, the doctor, examined PWs 1,2 and 4 and issued wound certificates Ext. P- 3, P-4 and P-5 respectively. PW-19 , another doctor, conducted the post mortem examination of Nanukuttan, the deceased, the issued post-mortem certificate Ext. P-9. To prove its case the prosecution examined PWs-1 to 22, marked Exts. p-1 to P-17 and got M.O.S. 1 to 7 identified. The accused marked Exts. D-1 to D-11 and XI. The accused denied the charges and claimed to be tried.\n5.  On considering the evidence on record, the trial court acquitted all the twenty two accused by its judgment dated February 22, 1985. The State appealed against that judgement and confined its submissions to accused A-1 to A-3. The High Court having considered the evidence on record found A-1 to A-3 guilty of various offences, convicted and sentences them as mentioned above.\n6.  Mr. U.R. Lalit, the learned senior counsel, appearing for the appellants, contended that the eye witnesses PWs 1 to 5 and PW-7 were interested witnesses being the members of the rival union, therefore, their evidence was rightly rejected by the trial court but the High Court did not take into account union rivalry between the two groups and the possibility of the complainant group falsely implicating the accused who belonged to the rival group and thus erred in relying upon their testimony. He argued that throwing of bombs in its very nature is so sudden that it was not possible that the witnesses could have actually seen the same; PWs 8 and 9 who are independent witnesses and came to the scene of occurrence did not say that they had seen any of the accused. persons there.\n7. In any event, submits the learned counsel, where two views are possible, as in this case, the High Court, in the appeal against acquittal, ought not to have upset the acquittal of the appellants by the trial court. Shri G. Prakash, the learned counsel appearing for the State, invited our attention to the evidence of eye witnesses, P.Ws. 1 to 5 and 7, and submitted that the trial court had arrived at erroneous conclusions from the evidence and that the approach of the trial court was patently untenable and that no reasonable person could have taken such a view, as such the High Court had rightly interfered with in the appeal against acquittal.\n8.  On the submissions of the learned counsel, the short point that arises for consideration is whether the judgment of the High Court under appeal warrants interference.The principles with regard to the scope of the powers of the Appellate Court in an appeal against acquittal, are well-settled. The powers of the Appellate Court in an appeal against acquittal are no less than in an appeal against conviction. but where on the basis of evidence on record two views are reasonably possible the Appellate Court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions there from that the Appellate Court can interfere with the order of acquittal. There is plethora of case law on the subject but we consider it unnecessary to quote any decisions here; suffice it to refer to a recent judgment of this Court in Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 1996 Indlaw SC 2602, on which reliance is placed by MR. Lalit. In that case one of us (Justice Mukherjee) speaking for the Court restated the principles as follows:\n\"This Court has repeatedly laid down that the more fact that the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keepings with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not\".\n9.  We have perused the judgment under appeal to ascertain whether the High court has conformed to the aforementioned principles. We find that the High court has not strictly proceeded in the manner laid down by this court in Doshi's case 1996 Indlaw SC 2602 (supra), viz; first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High court has rendered a well considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not.\n10. In our view, in such a case, the approach of the Court which is considering the validity of the judgment of an Appellate Court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the Appellate court is free from those infirmities ; if so to hold that the trial court judgment warranted interference.\n11. In such a case, there is obviously no reason why the Appellate Court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of trial court does not suffer from any infirmity, it cannot but be held that the interference by the Appellate Court in the order of acquittal was not justified; then in such a case the judgment of the Appellate Court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.\n12. In this case, the trial court framed as many as eight points for determination which are as follows:\n(1) Whether Thanukuttan alias Nanukuttan died of injuries sustained at 10.45 a.m. of 21.4.1983?\n(2) Whether PW1 sustained injuries at 10.45 a.m. of 21.4.1983?\n(3) Whether PWs 2 and 4 sustained injuries soon after the occurrence at 10.45 a.m. of 21.4.1983?\n(4) Whether the prosecution has succeeded in proving a conspiracy punishable under Section 120B of the I.P.C.?\n(5) Whether the prosecution succeeded in proving the charge against A21 to A23?\n(6) Whether the prosecution evidence has proved beyond reasonable doubt that offences under sections 143,147,148 and 149 of the I.P.C. have been committed by A1 to A20?\n(7) Whether the prosecution evidence has proved beyond reasonable doubt that Nanukuttan had a homicidal death?\n(8) Whether the prosecution evidence has proved beyond reasonable doubt the commission of the offences punishable under sections 302, 307 and 324 of the I.P.C. and the offence under Section 3 of the Explosive Substances Act, 1908?\"\n13.  On point Nos. 1 to 3, the trial court recorded findings in the affirmative, that is, in favour of the prosecution and against the accused; on point Nos. 4,5, 6,7 and 8 it recorded the finding in the negative, that is, in favour of the accused and against the prosecution. In view of the limited submissions made by the prosecution before the High Court we are not concerned with point Nos. 4,5 and 6; the points which are material for our discussion are point Nos.1 to 3 and 7 and 8. In answering the points noted above, the trial court considered each point in isolation and thus arrived at conclusions which are inconsistent and erroneous. having recorded the finding on point No.1 in the affirmative it held that Nanukuttan had not died a homicidal death at the place alleged by the prosecution. In drawing the above inference the trial court relied upon certain statements made by some of the eye-witnesses. The portions in the case diary statements marked as Exts. D-1 and D-1(a) on which the trial court placed reliance are to the effect that the deceased was sitting at the time of the incident whereas in the evidence given in Court it was stated that he was sleeping.\n14. The aforesaid contradictions are hardly material to decide whether he died of a homicidal death at the place of the incident. While considering point No.1, the trial court accepted the testimony of PWs-1 to 5 and 7 on the ground that the same was corroborated from the evidence of PWs 8 and 9. It also relied on the evidence of PWs 8 and 9 in coming to the conclusion that the deceased sustained fatal injuries at the slanting platform in front of the General Metals in the Industrial Estate at Pappanamcode. From that evidence, the conclusion that A-2 threw bomb at the deceased who was seriously injured and died of a homicidal death, was irresistible but the trial court held otherwise which is patently untenable. We have gone through the evidence of eye witnesses, PWs 1 to 5 and 7; their presence on the scene of occurrence cannot be doubted because PWs-1, 2 and 4 are injured witnesses and their names are also found in the FIR (Exh. P-1). Further, PWs. 8 and 9 are independent witnesses; though they do not speak of the presence of the accused on the scene of occurrence that is for the reason that they came after the accused and some of the injured persons had fled from the scene of occurrence, they, however, spoke that they had seen PWs.3 and 4 on the scene of occurrence. From their testimony, it becomes evident that the deceased and some others were taking rest on the concrete platform in front of General Metals. While one of them was reading magazine 'Kumari' and others were hearing, they noticed magazine 'Kumari' and others were hearing, they noticed that A-1 was having something in the shape of the tennis ball which was wrapped in a paper and which was thrown by him at PW-1; this was followed by throwing of similar object by A-2 on the deceased, which hit him on his stomach and his intestine came out. Immediately thereafter, the third bomb was thrown by A-3 which fell amidst them. Mr. Lalit, however, contended that the said witnesses were interested witnesses being members of the rival union and, therefore, it would not be safe to rely on their evidence.\n15. We find no substance in this argument because on examination of their testimony, we do not find that any of them were shaken in the cross-examination on any material particulars. Merely because they belong to the complainant group, it cannot be said that their testimony cannot be given due weight. It is nobody's case that at the time of occurrence, persons other than the members of the rival unions were present there. After hearing the sound of explosion, some persons no doubt came to the scene of occurrence, of whom PWs 8 and 9 have been examined and obviously they have spoken to the facts which they noticed only after the explosion of the bombs. The other witnesses, if any, would have been of no avail to the defense nor were they necessary for purposes of establishing the quilt of the accused. Therefore, union rivalry would not be a ground to brush aside their evidence after having found that the same is consistent and truthful. It is no doubt true that throwing of bomb is a sudden act but the witnesses have clearly stated from which direction the accused came and who among them threw the country-made bombs and who hit with bricks and sticks. It is not a case where the incident took place in wee hour of the night when everybody was sleeping and then they got up after the explosion and would not have been in a position to see the actual throwing of bombs. They were all sitting on the platform and were obviously conscious of what was happening in the surrounding as is evident from their statements. We also find no substance in the issue as to whether the deceased was sitting or lying a fact which weighed with the trial court to disbelieve the prosecution story. It is quite possible that the witnesses who stated that Nanukuttan was sitting must have seen him before he lied down on the platform and the witnesses who stated that he was sleeping must have seen him lying and stated that he was sleeping.\n16. This contradiction, in our view, does not affect the prosecution case. We also find that the case of the prosecution is corroborated by medical evidence of PWs-14 and 19. PW-14 is the doctor who examined PWs. 1,2 and 4 and issued Exh. P-3, P-4 and P-5 respectively. PW-19 is the doctor who conducted autopsy on the dead body of the deceased and issued post-mortem certificate, Exh. P-9. PW-19 sent the pieces of body of the deceased to Forensic laboratory for report. Exhs. P-10 and P-11 are the reports which show the presence of explosive substance in the body of the deceased The blood clotted newspaper pieces and twine etc. collected from the scene of occurrence, MOS 5 and 6 , were also found to contain explosive substance which also corroborates the prosecution story of throwing of bomb by the accused persons. There cannot be any possibility of falsely implicating the accused because soon after the occurrence, Exh. p-1 was lodged wherein the overt acts attributed to the appellants were noted. For these rightly found the appellant guilty of offences mentioned in the judgment under appeal. From the above discussion, it follows that the approach of the trial court was patently erroneous and the conclusions arrived at by it were wholly untenable.\n17. It is thus mot the case where two reasonable views on examination of the evidence on record are possible and so the one which supports the accused, should be adopted. The view taken by the trial court can hardly be said to be a view on proper consideration of evidence much less a reasonable view. Therefore, interference by the High Court in the appeal against acquittal of the appellant and recording the finding of their conviction for offences under Sections 302,307 read with Section 34 IPC and Section 3 of the Explosive Substances Act, 1908, on consideration of the evidence, is justified. The judgment under appeal does not warrant any interference. We find no merit in this appeal; it is accordingly dismissed.\n18.  Appellants 1 and 3, who are now on bail will surrender to their bonds to serve out their sentece confirmed by us.\nAppeal dismissed\n"}
+{"id": "sUkiH8G4Zp", "title": "", "text": "Sharad Birdhichand Sarda v State of Maharashtra\nSupreme Court of India\n\n17 July 1984\nCriminal Appeal No.\n745 of 1983\nThe Judgment was delivered by : Syed Murtaza Fazalali, J.\n1. This is rather an unfortunate case where a marriage arranged and brought about through the intervention of common friends of the families of the bride and bridegroom though made a good start but ran into rough weather soon thereafter. The bride, Manju, entertained high hopes and aspirations and was not only hoping but was anxiously looking forward to a life full of mirth and merriment, mutual love and devotion between the two spouses. She appears to be an extremely emotional and sensitive girl and at the very behest cherished ideal dreams to be achieved after her marriage, which was solemnised, on February 11, 1982 between her and the appellant, Sharad Birdhichand Sarda. Soon after the marriage, Manju left for her new marital home and started residing with the appellant in Takshila Apartments at Pune. Unfortunately, however, to her utter dismay and disappointment she found that the treatment of her husband and his parents towards her was cruel and harsh and her cherished dreams seem to have been shattered to pieces. Despite this shocking state of affairs she did not give in and kept hoping against hope and being of a very noble and magnanimous nature she was always willing to forgive and forget.\nAs days passed by, despite her most laudable attitude she found that \"things were not what they seem\" and to quote her own words \"she was treated in her husband's house as a labourer or as an unpaid maidservant.\" She was made to do all sorts of odd jobs and despite her protests to her husband nothing seems to have happened. Even so, Manju had such a soft and gentle frame of mind as never to complain to her parents-in-law, not even to her husband except sometimes. On finding things unbearable, she did protest, and expressed her feelings in clearest possible terms, in a fit of utter desperation and frustration, that he hated her. Not only this, when she narrated her woeful tale to her sister Anju in the letters written to her (which would be dealt with in a later part of the judgment), she took the abundant care and caution of requesting Anju not to reveal her sad plight to her parents lest they may get extremely upset, worried and distressed.\n2. Ultimately, things came to such a pass that Manju was utterly disgusted and disheartened and she thought that a point of non-return had reached. At last, on the fateful morning of June 12, 1982, i.e., nearly four months after her marriage, she was found dead in her bed.\n3. As to the cause of death, there appears to be a very serious divergence between the prosecution version and the defence case. The positive case of the prosecution was that as the appellant was not at all interested in her and had illicit intimacy with another girl, Ujvala, he practically discarded his wife and when he found things to be unbearable he murdered her between the night of June 11 and 12, 1982, and made a futile attempt to cremate the dead body. Ultimately, the matter was reported to the police. On the other hand, the plea of the defence was that while there was a strong possibility of Manju having been ill-treated and uncared for by her husband or her in-laws, being a highly sensitive and impressionate woman she committed suicide out of sheer depression and frustration arising from an emotional upsurge. This is the dominant issue which falls for decision by this Court.\n4. Both the High Court and the trial Court rejected the theory of suicide and found that Manju was murdered by her husband by administering her a strong dose of potassium cyanide and relied on the medical evidence as also that of the Chemical Examiner to show that it was a case of pure and simple homicide rather than that of suicide as alleged by the defence. The High Court while confirming the judgment of the trial Court affirmed the death sentence and hence this appeal by special leave.\n5. Before discussing the facts of the case, it may be mentioned that although the High Court and the trial Court have gone into meticulous and minutest matters pertaining to the circumstances leading to the alleged murder of Manju, yet after going through the judgments we feel that the facts of the case lie within a very narrow compass.\n6. The story of this unfortunate girl starts on 11-2-1982 when her marriage was solemnised with the appellant preceded by a formal betrothal ceremony on 2-8-1981. After the marriage, Manju, for the first time, went to her parents' house on 22-2-82 for a very short period and returned to Pune on 26-2-1982. It is the prosecution case that on 17-3-1982 the appellant had called Manju at Pearl Hotel where he introduced her to Ujvala and told her that she must act according to the dictates and orders of Ujvala, if she wanted to lead a comfortable life with the husband. In other words, the suggestion was that the appellant made it clear to his wife that Ujvala was the real mistress of the house and Manju was there only to obey her orders. After this incident. Manju went to her parents' house on 2-4-1982 and returned to Pune on 12-4-1982. This was her second visit. The third and perhaps the last visit of Manju to her parents' house was on 25-5-1982 from where she returned to Pune on 3-6-1982, never to return again. The reason for her return to Pune was that her father-in-law insisted that she should return to Pune because the betrothal ceremony of Shobha (sister of the appellant) was going to be held on 13-6-1982.\n7. The last step in this unfortunate drama was that Manju, accompanied by Anuradha (wife of A-2) and her children, returned to the flat on 11-6-1982 near about 11.00 p.m. Her husband was not in the apartment at that time but it is alleged by the prosecution that he returned soon after and administered potassium cyanide to Manju. Thereafter, the appellant went to his brother, Rameshwar who was also living in the same flat and brought Dr. Lodha (P.W. 24) who was living at a distance of 1 1/2 Kms. from Takshila Apartments. At the suggestion of Dr. Lodha, Dr. Gandhi (P.W. 25) was also called and both of them found that Manju was dead and her death was an unnatural one and advised the body to be sent for post-mortem in order to determine the cause of death.\nUltimately, Mohan Asava (P.W. 30) was approached on telephone and was informed that Manju had died at 5.30 a.m. subsequently, the usual investigation and the post-mortem followed which are not very germane for our purpose at present and would be considered at the appropriate stage.\n8. The plea of the appellant was that Manju was not administered potassium cyanide by him but she appears to have committed suicide out of sheer frustration In order to prove his bona fide the accused relied on the circumstances that as soon as he came to know about the death of his wife he called two Doctors (P.Ws. 24 and 25) and when they declared that Manju had died an unnatural death, as the cause of death was not known, and therefore the body had to be sent for post-mortem, he immediately took steps to inform the police. He flatly denied the allegation of the prosecution that there was any attempt on his part to persuade Mohan Asava (P.W. 30) to allow the body of the deceased to be cremated.\n9. We might state that the High Court has mentioned as many as 17 circumstances in order to prove that the circumstantial evidence produced by the prosecution was complete and conclusive. Some of these circumstances overlap, some are irrelevant and some cannot be taken into consideration because they were not put to the appellant in his statement u/s. 313 of the Code of Criminal Procedure in order to explain the effect of the same as we shall presently show.\n10. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of this Court as also of the High Courts. The locus classicus of the decision of this Court is the one rendered in the case of Hanumant v. State of Madhya Pradesh 1952 Indlaw SC 89, where Mahajan, J. clearly expounded the various concomitants of the proof of a case based purely on circumstantial evidence, and pointed out thus:\n\"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved ................. it must be such as to show that within all human probability the act must have been done by the accused.\"\nThis decision was followed and endorsed by this Court in the case of Dharambir Singh v. State of Punjab  (Criminal Appeal No. 98 of 1958 decided on 4-11-1958 printed on green papers in bound volumes). We shall however discuss Hanumant's case 1952 Indlaw SC 89 fully in a later part of our judgment. Coming now to the question of interpretation of S. 32(1) of the Evidence Act, this Court in the case of Ratan Gond v. State of Bihar 1958 Indlaw SC 74, S. K. Das, J. made the following observations:-\n\"The only relevant clause of S. 32 which may be said to have any bearing is Cl. (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister.\"\nIn the 'Law of Evidence' by Woodroffe and Ameer Ali, (Vol. II) the authors have collected all the cases at one place and indicated their conclusions thus:\n\"To sum up, the test of the relevancy of a statement u/s. 32(1), is not what the final finding in the case is but whether the cause of the death of the person making the statement comes into question in the case. The expression 'any of the circumstances of the transaction which resulted in his death'; is wider in scope than the expression 'the cause of his death'; in other words, Cl. (1) of S. 32 refers to two kinds of statements :\n(1) statement made by a person as to the cause of his death, and\n(2) the statement made by a person as to any of the circumstances of the transaction which resulted in his death.The words 'resulted in his death' do not mean 'caused his death'.\nThus, it is well settled that declarations are admissible only in so far as they point directly to the fact constituting the res gestae of the homicide; that is to say, to the act of killing and to the circumstances immediately attendant thereon, like threats and difficulties, acts, declarations and incidents, which, constitute or accompany and explain the fact or transaction in issue. They are admissible for or against either party, as forming parts of the res gestae.\"\nIt would appear that the solid foundation and the pivotal pillar on which rests the edifice of the prosecution may be indicated as follows:-\n(1) Written dying declaration by the deceased in her letters, two of which were addressed to her sister Anju and one to her friend Vahini.\n(2) The oral statements made by the deceased to her father (PW 2), mother (PW 20), sister (PW 6) and her friend (PW 3) and also to PWs. 4 and 5 showing her state of mind shortly before her death and the complaints which she made regarding the ill-treatment by her husband.\n(3) Evidence showing that the appellant was last seen with the deceased in the room until the matter was reported to the police.\n(4) The unnatural and incriminating conduct of the appellant.\n(5) The medical evidence taken along with the Report of the Chemical Examiner which demonstrably proves that it was a case of homicide, completely rules out the theory of suicide as alleged by the appellant.\nMr. Jethmalani, learned counsel for the appellant, has vehemently argued that there was a very strong possibility of the deceased having committed suicide due to the circumstances mentioned in her own letters. He has also questioned the legal admissibility of the statements contained in the written and oral dying declarations. He has submitted that the so-called dying declarations are admissible neither under S. 32 nor u/s. 8 of the Evidence Act. It was submitted by the appellant that the present case is not at all covered by Cl. (1) of S. 32 of the Evidence Act.\n11. The leading decision on this question, which has been endorsed by this Court, is the case of Pakala Narayana Swami v. Emperor 1939 Indlaw PC 13, where Lord Atkin has laid down the following tests:\n\"It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the \"circumstances\" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction; general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible .............. \"Circumstances of the transaction\" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in \"circumstantial evidence\" which includes evidence of all relevant facts. It is on the other hand narrower than \"res gestae\" Circumstances must have some proximate relation to the actual occurrence ...........It will be observed that. The circumstances are of the transaction which resulted in the death of the declarant. These principles were followed and fully endorsed by a decision of this Court in Shiv Kumar v. State of Uttar Pradesh (Crl. Appeal No. 55 of 1966 decided on 29-7-1966: (reported in 1966 Cri 281 )) where the following observations were made: It is clear that if the statement of the deceased is to be admissible under this section it must be a statement relating to the circumstances of the transaction resulting in his death.\nThe statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, .......... A necessary condition of admissibility under the section is that the circumstance must have some proximate relation to the actual occurrence ............. The phrase \"circumstances of the transaction\" is a phrase that no doubt conveys some limitations. It is not as broad as the analogous use in \"circumstantial evidence\" which includes evidence of all relevant facts. It is on the other hand narrower than \"res gestae\"(See Pakala Narayana Swami v. King Emperor 1939 Indlaw PC 13). The aforesaid principles have been followed by a long catena of authorities of almost all the Courts which have b&en noticed in this case. To mention only a few important ones, in Manohar Lal v. State of Punjab 1981 Indlaw PNH 79, the Division Bench of the Punjab and Haryana High Court observed thus: The torture administered sometimes manifests itself in various forms. To begin with, it might be mental torture and then it may assume the form of physical torture. The physical harm done to the victim might be increased from stage to stage to have the desired effect. The fatal assault might be made after a considerable interval of time, but if the circumstances of the torture appearing in the writings of the deceased come into existence after the initiation of the torture the same would be held to be relevant as laid down in S. 32(1) of the Evidence Act.\"\n12. We fully agree with the above observations made by the learned Judges. In Protima Dutta v. The State, 81 Cal WN 713 : 1977 (83) CrLJ 96 ), while relying on Hanumant's case 1952 Indlaw SC 89 (supra) the Calcutta High Court has clearly pointed out the nature and limits of the doctrine of proximity and has observed that in some cases where there is a sustained cruelty, the proximity may extend even to a period of three years. In this connection the High Court observed thus:\n\"The 'transaction' in this case is systematic ill-treatment for years since the marriage of Sumana with incitement to end her life. Circumstances of the transaction includes evidence of cruelty which produces a state of mind favourable to suicide. Although that would not by itself be sufficient unless there was evidence of incitement to end her life it would be relevant as evidence. This observation taken as a whole would, in my view, imply that the time factor is not always a criterion in determining whether the piece of evidence is properly included within \"circumstances of transaction\".......... 'In that case the allegation was that there was sustained cruelty extending over a period of three years interspersed with exhortation to the victim to end her life.\"\nHis Lordship further observed and held that the evidence of cruelty was one continuous chain, several links of which were touched up by the exhortations to die. \"Thus evidence of cruelty, ill-treatment and exhortation to end her life adduced in the case must be held admissible, together with the statement of Nilima (who committed suicide) in that regard which related to the circumstances terminating in suicide.\"\n13. Similarly, in Onkar v. State of Madhya Pradesh 1974 Indlaw MP 29654, (Madh Pra), while following the decision of the Privy Council in Pakala Narayana Swami's case 1939 Indlaw PC 13) (supra), the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by S. 32 of the Evidence Act thus:\n\"The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused .......... Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime.\"\n14. In Allijan Munshi v. State 1959 Indlaw MUM 112, the Bombay High Court has taken a similar view.\n15. In Chinnavalayan v. State of Madras, two eminent Judges of the Madras High Court while dealing with the connotation of the word 'circumstances' observed thus:\n\"The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning. While the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as\n(1) that the statement must be made after the transaction has taken place,\n(2) that the person making it must be at any rate near death,\n(3) that the circumstances can only include acts done when and where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.\"\n16. In Gokul Chandra Chatterjee v. The State 1950 Indlaw CAL 59, the Calcutta High Court has somewhat diluted the real concept of proximity and observed thus:\n\"In the present case, it cannot be said that statements in the letters have no relation to the cause of death. What drove her to kill herself was undoubtedly her unhappy state of mind, but the statements in my view have not that proximate relation to the actual occurrence as to make them admissible u/s. 32(1), Evidence Act. They cannot be said to be circumstances of the transaction which resulted in death.\"\n17. We, however, do not approve of the observations made by the High Court in view of the clear decision of this Court and that of the Privy Council. With due respect, the High Court has not properly interpreted the tenor and the spirit of the ratio laid down by the Privy Council. We are, therefore, of the opinion that this case does not lay down the correct law on the subject.\n18. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of Cl. (1) of S. 32, viz., \"the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question \" is not to be found in the English Law.\nThis distinction has been clearly pointed out in the case of Rajindra Kumar v. The State 1959 Indlaw PNH 141, where the following observations were made:\n\"Cl. (1) of S. 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, ......... are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of die transaction which resulted in his death, in case, in which the cause of that person's death comes into question ......... It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.\"\n19. And in the case of State v. Kanchan Singh 1953 Indlaw ALL 52, it was observed thus:\n\"The law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act.\"\n20. In these circumstances, therefore, it is futile to refer to English cases on the subject.\n21. Thus, from a review of the authorities mentioned above and the clear language of S. 32(1) of the Evidence Act, the following propositions emerge:-\n(1) S. 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S. 32 to avoid injustice.\n(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible u/s. 32.\n(3) The second part of Cl. (1) of S. 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.\n(4) It may be important to note that S. 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.\n(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of S. 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.\n22. This now brings us to a close consideration of the contents of the letters (Exts. 30, 32 and 33) written by Manju to her sister and friend. We propose to examine the contents of the letters for four purposes:\n(1) in order to find out the state of mind and psychological attitude of Manju,\n(2) the nature of Manju's attitude towards her husband and in-laws,\n(3) the amount of tension and frustration which seems to be clearly expressed in the letters, and\n(4) to determine Manju's personal traits and psychological approach to life to determine if she was ever capable of or prone to committing suicide.\n23. We start with the letter dated 8-5-82 (Ext. 30) which was addressed to her sister Anju and is printed of Part I of the printed Paperbook. The learned counsel for the appellant in order to make our task easy has supplied the English translation as also the Roman script of the original letter. On a comparison of the two versions, we are of the opinion that by and large the English translation printed in the Paperbook is a true and faithful rendering of the contents of the original letter. It is not necessary for us to extract the entire letter but we propose to extract only the relevant portions which seek to explain and illustrate the four purposes mentioned above.\n\"All read the letter with curiosity, or it may go to anybody's hand. I do not want to take any such risk. So I have taken up today for writing, the second letter to you.\"\nThe Roman script runs thus:\n\"Khat to sabhi utsukta se padte hain. Kahin kisi ke hath pad saktahai. Aisi risk leni nahin hai. Isliye maine tumhe aaj doosra khat likhneko liya.\"\n24. An analysis of the above clearly shows that Manju was a highly secretive woman and wanted to keep her personal matters or secrets to herself except giving a rough idea or a passing glimpse of her feelings only to those who were very close to her as friends or near relations. The extract shows that perhaps in a spell of heavy emotions she had written a very long letter to her sister whom she regarded as her best friend but on second thought she tore it off lest it may fall in anybody's hands and she was not prepared to take such a risk. This mentality and noble nature would be of great assistance to us in assessing the probative value of the statements made by her to her parents, sister and friend during her last visit to Beed. The second paragraph, which is extracted below, reflects her state of mind and the tension and torture which she was undergoing:\n\"Now in this letter, when (out of) the things coming to my mind which cannot be written, I do not understand what is to be written. The state of mind now is very much the same Enough. You understand (me). I am undergoing a very difficult test. I am unable to achieve it. Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right.\"\n25. She has hinted that she was passing through difficult times but was trying to control herself as much as she could. She has further indicated that if things did not Improve then she may have to evolve some other method. The exact words used in the Roman script runs thus:\n\"Jab tak sambhal sakti hoon theek hai jab aasambhab ho jayega to phir rasta nikalna padega, dekhenge kya kya hota hai.\"\n26. The words \"some other way will have to be evolved\" clearly gives a clue to her psychotic state of mind and seem to suggest that the other method to get rid of all her troubles was to commit suicide. It is pertinent to note that in the first two paragraphs of her letter extracted above there is no indication nor any hint about the conduct of her husband.\n27. In the third para of her letter she states her feelings thus:\n\"I thought much that since the house of my husband's parents is at Pune, I would do this and that or the people from the house of my husband's parents are free. However, I have gradually come to know that in that house, the worth of a daughter-in-law is no more than that of a labourer.\"\nThe relevant portion in the Roman script reads thus:\n\"Is ghar mein bahu ki keemat majdoor se jyada nahin hai.\"\n28. At the end of the third paragraph she repeats her sad plight thus:\n\"My state here however is like an unclaimed person. Let it be gone. I do not like to weep (over it). When we will meet, we will talk all the things.\"\n29. In the middle of the 4th paragraph she comes out with an emotional outburst by indicating that all her hopes had been shattered and because of being neglected by her husband her health was adversely affected. In the Roman script she used the following words:\n\"Sachmuch kya kya sapne rahte hain kuarepanmein, magar toote huye dekhkar dilpar kya gujarti hai. Vaise tu maine kuch bhi sapne nahin dekhe the, bas ek hi sapna tha ki mera pati mujhse bahut pyar kare, magar abhi wo bhi na pakar dilki halat per kaboo nahin pa sak rahi. Tabiyat par uska asar dikh raha hai.\"\n30. In the latter part of the 8th paragraph while giving vent to her feelings she states thus:\n\"Now Manju is moving, it is necessary to tell that she is alive. You don't tell anybody about this letter. I felt like telling all this to Bhausab. What, however, is the use of making him sorry. One should test one's fats, whatever may be the result I want to tell you all. But I cannot tell.\"\n31. The words used by her show her affectionate and secrative nature and the precaution taken by her not to tell anything to her father, who is addressed as 'Bhausab'. The Roman script of the relevant portion runs thus.\n\"Dil tu karta tha Bai Bhau Sahab ko sab bataon, magar unko dukh dekar kya phaida. Apne apne naseeb dekhenge, natija kya nikalta hai. Mujhe tumbein sab kuch batana hai, magar bata nahin sakti.\"\n32. These extracts throw a flood of light on the nature, character, mental attitude, suffering and shock of the deceased. One thing which may be conspicuously noticed is that she was prepared to take all the blame on her rather than incriminate her husband or her in-laws. The other portions of the letter (Ext. 30) are not at all germane for the purpose of this case. Summarising the main contents of the letter, the following conclusions or inferences follow:\n(a) Manju was a highly emotional and sensitive woman.\n(b) she got the shock of her life when due to ill-treatment by her husband and in-laws she found that all her dreams had been shattered to pieces after marriage leaving her a dejected, depressed and disappointed woman,\n(c) she had been constantly ill-treated by her in-laws and her position in the house was nothing but that of an unpaid maidservant or a labourer,\n(d) she wanted to keep all her worries and troubles to herself and on no account was she prepared to disclose them to her parents or even to her sister, lest they also get depressed and distressed.\n(e) no serious allegation of cruelty had been made against the husband personally by her and she thought that she herself should suffer out of sheer frustration.\n33. Now we shall examine Ext. 32 which is a letter dated 8-6-82 written by Manju to her sister Anju. This was perhaps her last letter to Anju and is very important and relevant for decision of the case. The letter begins with the words \"I am happy here\".\nIn the second paragraph she expresses her feelings as follows:\n\"Shobhabai's 'Sadi' programme is fixed on 13th, I do not know why there is such a dirty atmosphere in the house ? It is felt every moment that something will happen. Everybody is in tension. No work has been started in the house. Let it go. I am out of mind. Still I am used not to pay heed to it. Ala what about your law.\"\n34. So far as the first part is concerned, the 'dirty atmosphere' about which she speaks is totally unrelated to anything done by the husband or of any cruel treatment by him; it merely refers to the tension prevailing in the family as the 'Sadi' (Kohl) was fixed on 13-6-82. Her anger is not so much towards her husband or herself an for the manner in which things were being done. She complained that no work had been started and being the eldest daughter-in-law of the family she felt it her duty to see that all arrangements were complete. It was conceded by the Additional Solicitor-General that this portion of the letter does not refer to any ill-treatment by the husband or his parents but relates only to the defective and unsatisfactory arrangements for such an important function, The relevant portion of the 3rd paragraph is also more or less innocuous but in between the lines it contains a tale of woe, a spirit of desperation and frustration and a wave of pessimism. The actual vernacular words are -\n\"Mera to aane ka kya hota hai dekna hai. Buaji ke yahan se khat aur aaya to shahid chance mil sakta hai. Magar meri mangal ke dulhan ke roop mein dekhne ki bahut ichha hai. Dekhenge.\"\n35. She was naturally apprehending something and was not very hopeful of going to her father's place. This being her last letter, and that too a short one, it gives a clear inkling of the manner of how her mind was working. She did not lay any blame on her husband or anybody else but still she was afraid that something was going to happen and that she may not be able to go to her father and see the marriage of her sister-in-law for which preparations were being made. In our opinion, these words are extremely prophetic and seem to indicate that by that time she had almost made up her mind to end her life instead of carrying on her miserable existence. As brevity is the soul of wit, she directly hinted that she may not be able to meet her father or anybody naturally because when a life comes to an end there can be no such question. Exhibit 32, though a short letter, depicts her real feeling and perhaps a tentative decision which she may have already taken but did not want to disclose for obvious reasons.\n36. Then we come to Ext. 33 which is a letter dated 23-4-82 written by the deceased to her close friend, Vahini and which shows her exact feelings, changing mood and emotions. This is the only letter where she had made clear complaints against her husband and the relevant portions may be extracted thus:\n\"Really, Vahini, I remember you very much. Even if I am little uneasy, I feel that you should have been near with me. All persons here are very good. Everybody is loving. Still I feel lonely. One reason is that, in the house there are many persons and they are elder to me and as such I do not dare to do any work independently. Every time some fear is in mind which leads to confusion.God knows when I can come there ? The point on which we had discussion is as it was. Vahini, I swear you if you talk to anyone. I am much in pains. But what else can I do? No other go than that, and the same mistake is done again and again by me. It is that I go ahead and talk for ten times, then I become angry if he does not speak. Vahini, there is nothing in my hands except to weep profusely. At least till now this man has no time to mind his Wife, let it be, but Vahini, what shall I do ?\"\n\"Who knows what hardships befall on me, so long I am alive. Why the God has become (unkind) towards me.\"\n\"Since yesterday I have made up my mind not to speak a word even, till he speaks (to me). Let me see to what extent I control my feelings. Vahini, you also pray to god for me whether a girl like me should be put to such a difficult test. Vahini, I am so much afraid of him that the romantic enchantment during first 10-15 days after marriage has become like a dream.\"\n\"I cannot dare to ask him whether his clothes be taken for wash. At present my status is only that of a maid-servant without pay as of right.\nWhy so much indifference towards me only? Vahini, I feel to weep in your arms. Vahini, come to Pune early.\nOn getting up every morning I feel he will speak today but every day I am hoping against hope. Vahini what will happen? Now there is no ray of hope.\nDay before yesterday I became excited and uttered in rage. \"You hate me, was I unable to get food in my parent's house?\nHe was irritated due to word 'hate'. He said, if you talk more like this, I will be very bad man.\nIf this goes on, I will not come to sleep. That means not permitted (to cry) also. How he says to me, are you tired of me so early? What shall I say to such a man. Once I feel that he does not count me. On second thought, I feel he cares me much. But due to moody nature, it will take time to pacify the same. On the day on which self-pride is lessened, no other, person will be more fortunate than me. But till that day it is not certain that I will be alive.\"\n37. In the second paragraph she starts by giving an indication that she was feeling Uneasy and would have very much liked to have Vahini with her. In the third paragraph she clearly states that all persons in her father-in-laws' place were very good and loving but due to a number of persons in the house she did not get a chance to work independently. The last line \"every time some fear is in mind which leads to confusion\" is the starting point of the first symptom of her invisible fear which she was unable to locate. The fourth paragraph is rather important which shows that whatever her feelings may have been she sought an oath from Vahini not to talk to anyone regarding the matters which she proposed to write in the said letter. She says that she was much in pains and hints that she weeps profusely and the reason given by her for this is that she went on committing mistakes and talked to her husband many times but his silence was extremely painful which made her angry. In the last portion, for the first time, she makes a direct complaint against her husband to the effect that he had no time to look after her (Manju).\nIn the same paragraph she describes her hardships and complains why God was unkind to her. She further expresses her sentiments that the romantic enchantment which she experienced during the first few days of her marriage had completely disappeared and looks like a lost dream or a \"Paradise lost\". Then she describes her plight as being a maid-servant without pay. She again complains of indifference towards her. Ultimately, she hopes against hope that some day he will speak to her and discuss the problems but there is no response. Later, she refers to a particular incident and goes to the extent of telling him that he hates her. This seems to have irritated the husband who resented this remark very much. Again in the same breath towards the end of the paragraph, while she says that her husband does not care for her yet she at once changes her mind and says that he cares for her much but due to his moody nature it will take time to pacify him. Her feelings again take a sudden turn when she says that when her husband's self-pride is lessened none would be more fortunate than her. The next line is rather important because she hints that till the said heyday comes perhaps she might not be alive.\n38. A careful perusal of this letter reveals the following features -\n(1) After going to her marital home she felt completely lost and took even minor things to her heart and on the slightest provocation she became extremely sentimental and sensitive.\n(2) She exhibited mixed feelings of optimism and pessimism at the same time.\n(3) It can easily be inferred that she did not have any serious complaint against her husband but she became sad and morose because she was not getting the proper attention which she thought she would get.\n(4) There is no indication that she expected any danger from her husband nor is there anything to show that things had come to such a pass that a catastrophe may have resulted. There may be certain concealed and hidden hints which she was not prepared to reveal in writing; what they were is not clear.\n(5) A close reading and analysis of the letter clearly shows at least two things -\n(a) that she felt extremely depressed,\n(b) that there was a clear tendency resulting from her psychotic nature to end her life or commit suicide.\nThis possibility is spelt out from the various letters which we have extracted. Indeed, if this was not so how could it be possible that while not complaining against her husband she gives a hint not only to Vahini but also to Anju that she might not live. She mentions of no such threat having been given to her by her husband at any time or anywhere.\n(6) The contents of the letter lead us to the irresistible conclusion that Manju felt herself lonely and desolate and was treated as nothing but a chattel or a necessary evil ever since she entered her marital home.\n39. Thus, from the recitals in the letters we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of her married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated.\n40. It may be that her husband may have murdered her but when two views are reasonably possible the benefit must go to the accused. In order to buttress our opinion, we would like to cite some passages of an eminent psychiatrist, Robert J. Kastenbaum where in his book 'Death, Society and Human Experience' he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book:\n\"The fact is that some people who commit suicide can be classified as psychotic or severely disturbed.\nIf we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a relevant variable to consider.\nAnd it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell, of madness.\"\nSeen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle like struggle.\nThe individual does not destroy himself in hope of thereby achieving a noble postmortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death.\nThe newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow.\nRevenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress.\n\"People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect.\n\"The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge through suicide ............ However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated. If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made ......... Warren Breed and his colleagues found that a sense of failure is prominent among many people who take their own lives.\"\n41. The above observations are fully applicable to the case of Manju. She solemnly believed that her holy union with her husband would bring health, and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that Manju was not only a sensitive and sentimental woman but was extremely impressionable and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life.\n42. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book 'The Melancholy Marriage' observe that -\n\"Studies of attempted suicide cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients' interactions with others in their environment were considered.\"\n43. Such persons possess a peculiar psychology which instils extreme love and devotion but when they are faced with disappointment or find their environment unhealthy or unhappy, they seem to loose all the charms of life. The authors while describing these sentiments observe thus:\n\"'Hopelessness', 'despair', 'lousy' and 'miserable' draw attention to the relationship of the depressed person to his environment. The articulate depressed person will often also struggle to put into words the fact that not only does there appear to be no way forward and thus no point to life - but that the world actually looks different.\"\n44. Coleridge in 'Ode to Dejection' in his usual ironical manner has very beautifully explained the sentiments of such persons thus:\n\"I see them all so excellently fair -\nI see, not feel, how beautiful they are,\"\n45. At another place the author (Hinchliffe, Hooper and John) come to the final conclusion that ruptured personal relations ships play a major part in the clinical picture and in this connection observed thus:\n\"Initially we applied these ideas to study of cases, of attempted suicide (Roberts and Hooper 1969) and although we did not assume that they were all necessarily depressed, we looked for distal and proximal causes for their behaviour and found that ruptured personal relationships played a major part in the clinical picture.\"\nThe observations of the authors aptly and directly apply to the nature, mood and the circumstances of the unfortunate life of Manju which came to an end within two months of her marriage.\n46. We have pointed out these circumstances because the High Court has laid very great stress on the fact that the evidence led by the prosecution wholly and completely excludes the possibility of suicide and the death of Manju was nothing but a dastardly murder.\n47. We shall now deal with the next limb of the oral dying declaration said to have been made by the deceased to her parents and friends Some of the statements which have a causal connection with the death of Manju or the circumstances leading to her death are undoubtedly admissible under S. 32 of the Evidence Act as held by us but other statements which do not bear any proximity with the death or if at all are very remotely and indirectly connected with the death would not be admissible. Unfortunately, however, the two kinds of statements are so inextricably mixed up that it would take a great effort in locating the part which is admissible and the one which is not.\n48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of die truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it.\n49. This now takes us to a consideration of the evidence of the witnesses concerned which read together with the letters form a composite chain of evidence regarding the causes or the circumstances relating to the death of the deceased. According to the prosecution, the last visit of Manju to Beed was on 25-5-1982/where she stayed till 3rd of June 1982 when she was brought back by the father of the appellant. In other words, the narration of the troubles and tribulations of Manju was made only during her last visit and not earlier. These statements are alleged to have been made to Rameshwar Chitlange (P.W. 2), Manju's father, Rekha (P.W. 3), who was Manju's friend and referred to as 'Vahini' in the letter Ex. 33, Anju (P.W. 6), Manju's sister to whom letters (Exhs. 30 and 32) were written, and P.W. 20, Bai, the, mother of Manju. Meena Mahajan (P.W. 5) was also examined but we are not in a position to rely on the evidence of this witness for two reasons -\n(1) she does not figure anywhere in any of the letters written by Manju, and\n(2) nothing was told to her by Manju directly but she was merely informed regarding the incidents mentioned by P.W. 2. This sort of indirect evidence is not worthy of any credence.\n50. We would first deal with the evidence of P.W. 2, Rameshwar Chitlange (Manju's father). We shall give a summary of the relevant part of his evidence because the other parts relate to how the marriage was performed and the spouses had gone for honeymoon which are not germane for our purpose. The witness states that when Manju came to Beed with her maternal uncle he found her somewhat uneasy and on making enquiries whether she was happy at her husband's house she told him that she was not very happy with her husband since she noticed that her husband was not very much pleased with her and in fact hated her. These facts are the result of the usual domestic quarrels between a husband and a wife, hence this statement cannot be said to be so directly or proximately related to the death of Manju so as to be admissible under S. 32 of the Evidence Act.\n51. It appears from his evidence that even after hearing the narration from his daughter he advised her to get herself adjusted to the situation and to the atmosphere of her new marital home. Apart from being inadmissible this does not appear to be of any assistance to the prosecution in proving the case of murder alleged against the appellant. The witness goes on to state that as the grandfather of the accused had died he visited Pune, accompanied by his wife and Manju. Since this was more or less a formal visit for expressing his condolences to the bereaved family, he left Manju at the house of the accused. The only part of his evidence on which reliance was placed by the prosecution is that he had noticed Manju very much disturbed and uneasy and requested Birdichand (father of the accused) to allow him to take Manju to the house of Dhanraj, which he did. On reaching the house of Dhanraj, the witness states that Manju completely broke down and started weeping and fell in the grip of her mother. This state of Manju, which the witness saw with his own eyes, would undoubtedly be primary evidence of what he saw and felt though not in any way connected with S. 32 of the Evidence Act. But from this circumstance alone it cannot be safely inferred that Manju apprehended any serious danger to her life from her husband.\n52. The witness further states that he informed Birdichand about the grievances made to him by Manju. The appellant, Sharad, was sent for and he quietly listened, to his father but the witness felt that whatever Birdichand may have told to his son that does not appear to have made any serious impact on him (appellant) and he left the room. This is purely an opinion evidence and therefore not admissible. Even so, the accused perhaps did not think it necessary to enter into arguments with his father-in-law in the presence of his father and that is why he may have kept quiet. From this no inference can be drawn that he was in any way inimically disposed towards Manju or was animated by a desire to take her life.\n53. The witness further stated that he found that Manju was weeping every now and then during the night at Dhanraj's place. Later, in the morning the witness took Manju back to her in-laws' house but his grievance was that Sharad did not care to meet or talk to them. These are however small circumstances which are incidents of any married life and from this no adverse inference can be drawn against the appellant.\n54. Another complaint made in the statement was that when he made a voluntary offer to solve the difficulties of Sharad, the appellant curtly told him that he did not want to get his difficulties solved by other persons and at this attitude of Sharad the witness was naturally very much disappointed. This conduct of the accused also is not of such an importance as to lead to any adverse inference. Some persons who have a keen sense of pride and self-respect do not like anyone else not even their father or father-in-law to interfere in their personal matters. Perhaps this may be the reason for the somewhat cool and curt attitude of Sharad but that proves nothing. In fact, experience shows that where elders try to intermeddle in the affairs of a husband and his wife, this creates a serious obstruction in the relation of the married couple. Nothing therefore, turns upon this statement of P.W. 2.\n55. Again, the witness repeats that when Manju came down to see him off he noticed her weeping all the time. To cut a long story short, the witness came back to Beed and sent his son Pradeep to bring Manju from Pune to Beed. On reaching there he was informed that Manju and Sharad had gone on a holiday trip to Mysore, Tirupati, etc. After the return of Pradeep to Beed, Dhanraj informed the witness that Sharad and Manju had returned to Pune and therefore, he sent his son, Deepak to Pune to bring back Manju. When Manju arrived at Beed the witness found her totally disturbed and frightened. This statement would be admissible as primary evidence. What probative value should be attached to this small matter is a different issue.\n56. Thereafter, the witness was told the incidents by his wife (P.W. 20) which had been narrated to her by Manju but that is of no value so far as this witness is concerned as the main evidence would be that of P.W. 20. However, in order to save the marriage from a total break-down the witness was extremely worried and therefore, he called one Hira Sarda, a close acquaintance of the family of accused, who told him (witness) that he was going to Hyderabad and after 4th-5th June some solution would be found out. At the same time, he advised the witness not to make any haste in sending back Manju to Pune.\n57. On the 2nd of June 1982 Birdichand arrived at Beed and requested the witness to send Manju to Pune because the marriage of Birdichand's daughter was fixed for 30th June 1982 and the Kohl (betrothal) ceremony was to be held on the 13th of June so that Manju may be present at the ceremony and look after the arrangements. The witness says that after hearing this he apprised Birdichand that Manju was extremely frightened and that she was not ready to go back to her husband's house nor was he (witness) willing to send her back so soon. He suggested to Birdichand that as the marriage of his nephew was to be celebrated at Beed on 25th June, Sharad would come to attend the marriage and at that time he can take Manju with him. Birdichand, however, persuaded the witness to send back Manju and assured him that no harm of any kind would come to her and he also promised that Manju would be sent back to Beed. The most important statement in the evidence of this witness may be extracted thus:\n\"I was having this talk with Birdichand on the first floor of my house. Manju heard this from the staircase, called me out in the ground portion of the house and told me that she was not in a position to go to the house of the accused. Since she was in a state of fear or extreme fear in her mind and she also told me that she was not prepared to go to the house of the accused. Thereafter, after the meals I sent Manju with Birdichand. Birdichand, Manju and Kavita then left Beed by about 12.30 p.m. by bus on 3rd of June, 1982. At that time Manju was constantly weeping right from inside my house till the bus left. She was also in a state of extreme fear.\"\n58. The witness has said many times in his statement that Manju was always weeping and crying and the final crisis came when on hearing the talks between him and Birdichand she called him from the staircase and told him that she was not prepared to go to her husband's house as she was in a state of extreme fear. It is difficult to believe this part of the evidence of the witness for two reasons :\n(1) When the talks were going on between two elders would Manju be sitting near the staircase to listen to their talks and call her father and give vent to her feelings and her decision not to go back to Pune at any cost This conduct appears to be directly opposed not only to the tenor and spirit of the letters (Exhs. 30, 32 and 33) which we have discussed but also against her mental attitude and noble nature.\n(2) As indicated by us while discussing the letters - could a woman who was so affectionate and reserved in nature and who would not like the contents of her letters to Anju and Vahini to be disclosed to bar parents lest they feel worried, disturbed and distressed - suddenly turn turtle, forgetting her sentiments not to worry them and come out in the open to declare before all by weeping and crying that she was in a state of extreme fear, seem to us to be inherently improbable. Once a mature woman develops a particular nature or habit or a special bent of mind she is not likely to forgo her entire nature in this case, her affection and love for her parents and the feeling of not doing anything which may cause distress or worry to them, and start telling her woeful story to everyone whom die met.\n59. Manju must have known fully that her husband's sister's betrothal ceremony was to be held on 13th June and if her father-in-law was making request after request to take her to Pune to attend the said ceremony, and had given all sorts of assurances that no harm would come to her, would she still call her father and express her state of fear and go on repeating what she had already said. This seems to us to be an afterthought or an embellishment introduced in the evidence of the witness so as to add credence to the prosecution story and provide an imaginary motive for the murder of the deceased. Indeed, if she was bent on resisting all attempts of her father-in-law to take her to Pune she would not have gone at all. On the other hand, her subsequent conduct of ultimately going to Pune and making arrangements for the Kohl ceremony belies the story put forward by the witness. It is extremely difficult for a person to change a particular bent of mind or a trait of human nature unless there are substantial and compelling circumstances to do so. In the instant case, we find no such compelling circumstance even taking the statement of the witness at its face value.\n60. To take the other side of the picture, the witness says that when he reached Pune on 12-6-1982 and visited the place where Manju had died, he found Sharad sleeping or lying on the cot and on seeing him he immediately started crying vigorously and making a show of the grief and shock they had received. The exact statement of the witness may be extracted thus:\n\"I could notice that Sharad who was sleeping or lying on the cot in the said room on seeing me entering the room immediately started crying vigorously giving jerks to his body and making show of the grief and the shock he had received. Ultimately I asked him as to what had happened to Manju when he told me that since 11th was the day of his marriage with Manju, he and Manju were in jolliest mood. According to him they went to bed by about 12 midnight and he had a sexual act with Manju in such a manner which they never had enjoyed before. Ultimately according to him when they completely felt tired and exhausted both of them fell asleep. According to him by about 5.30 a.m. when he got up and after visiting the urinal, when returned to the room he found that Manju had not got up as usual since according to him, she used to wake up at the same time he used to wake up and so he went near Manju and called her out when he found her dead.\"\n61. It is rather strange that while the witness took whatever his daughter told him at its face value without making any further enquiry, he immediately jumped to the conclusion that the grief and tears in the eyes of his son-in-law were fake and that he was merely shedding crocodile tears. There is nothing on the record nor in the evidence to show any circumstance which may have led the witness to arrive at this conclusion. On the other hand, if the conduct of the appellant, as described by the witness, is seen from a dispassionate angle, it was quite spontaneous and natural because by the time the witness reached Pune the post-mortem had been done and the death of Manju had come to light long before his arrival. There was no reason for the witness to have presumed at that time that Sharad must have committed the murder of the deceased. There were no material or data before him which could have led him to this inference. This clearly shows one important fact, viz., that the witness was extremely prejudiced against Sharad and if one sees anything - even the truth - with a pale glass everything would appear to him to be pale.\n62. The second part of the statement made by the witness regarding having sexual intercourse near about midnight seems to us to be inherently improbable. However, educated or advanced one may be, it is against our precious cultural heritage for a person to utter such things in a most frank and rudimentary fashion to his father-in-law. We are clearly of the opinion that the story of having a sexual act, etc., was a pure figment of the imagination of the witness and this, therefore, goes a long way off to detract from the truth of the testimony of this witness.\n63. Furthermore, the witness admits that during the lifetime of Manju, Anju and Rekha told him about the receipt of the letters from Manju but they never referred to the nature or the contents of the letters. This is a correct statement because both Anju and Vahini had been requested by Manju not to disclose to her parents the state of affairs or the tortures which she was suffering and perhaps they kept the sanctity of oath given to them by the deceased. This is an additional circumstance to show that even when Manju visited Beed for the last time she might tell something to her own sister Anju or to Vahini but she would never dare to disclose all the details and put all the cards on the table before her parents - a step which she deliberately desisted from coming into existence. We can understand the evidence of the witness that Manju was worried, distressed and depressed. Sometimes out of natural love and affection parents make a mountain of a mole hill and this is what seems to have happened in this case.\n64. Great reliance was placed by the Additional Solicitor General, on behalf of the respondent, on the relevance of the statements of P.Ws. 2, 3, 6 and 20. He attempted to use their statements for twin purposes - firstly, as primary evidence of what the witnesses saw with their own eyes and felt the mental agony and the distress through which the deceased was passing. Secondly, he relied on the statements made by the deceased (Manju) to these witnesses about the treatment meted out to her by her husband during her stay at Pune and furnishes a clear motive for the accused to murder her.\n65. As regards the first circumstance, there can be no doubt that the said evidence of the witnesses would undoubtedly be admissible as revealing the state of mind of the deceased. This would be primary evidence in the case and, therefore, there cannot be any doubt about the relevancy of the statement of the witnesses in regard to this aspect of the matter. As to what probative value we should attach to such statements would depend on a proper application of the context and evidence of each of the witnesses.\n66. As regards the second aspect - which is in respect of what the deceased told the witnesses - it would only be admissible under S. 32 of the Evidence Act as relating to the circumstances that led to the death of the deceased. In view of the law discussed above and the propositions and the conclusions we have reached, there cannot be any doubt that these statements would fall in the second part of S. 32 of the Evidence Act relating directly to the transaction resulting in the death of Manju, and would be admissible. Before, however, examining this aspect of the question we might at the outset state that the character, conduct and the temperament of Manju, as disclosed or evinced by the admitted letters (Exhs. 30, 32 and 33), which demonstrate that it is most unlikely, if not impossible, for Manju to have related in detail the facts which the aforesaid witnesses deposed. If this conclusion is correct, then no reliance can be placed on this part of the statement of the aforesaid witnesses.\n67. We now proceed to discuss the evidence of P.Ws. 3, 4, 5, 6 and 20. As we have discussed the evidence of P.W. 2, father of Manju, it will be more appropriate to discuss now the evidence of P.W. 20 (Manju's mother) from whom most of the matters spoken to by P.W. 2 were derived. Her evidence appears of Part I of the Paper Book. It is not necessary for us to go into those details which have already been deposed to by P.W. 2. The most relevant part of her evidence is about the visit of Manju to Beed on 2-4-1982. She states that during this visit she found Manju cheerful and happy and she did not complain of anything during her stay for 8-10 days. In answer to a question - whether she enquired from Manju or had any talk with her during that period - she stated that Manju told her that her husband was not taking any interest in her and used to leave the house early in the morning and return late at night on the excuse that he was busy with his factory work. It may be stated here that the accused had a chemical factory where he used to work from morning till late at night. The witness further deposed that Manju informed her that there was no charm left for her at the house of her husband. These facts however run counter to her first statement where she stated that Manju was quite happy and cheerful as was expected of a newly married girl. Even so, whatever Manju had said does not appear to be of any consequence because she (the witness) herself admits that she did not take it seriously and told Manju that since she bad entered a new family it might take some time for her to acclimatise herself with the new surroundings. She also warned Manju against attaching much importance to such matters.\n68. Thereafter she goes on to state that near about the 11th or 12th of April 1932 she (P.W. 20) along with her husband left for Pune to offer condolences on the death of the grand-father of the appellant. She then proceeds to state that during their second visit to Pune on the 11th or 12th of May 1982 she stayed with her brother, Dhanraj and that while she was there Manju hugged at her neck and having lost her control, started weeping profusely. She farther states that Manju requested her to take her to Beed as it was not possible for her to stay in her marital house where she was not only bored but was extremely afraid and scared.\n69. On the next day she (P.W. 20) met the mother of the appellant and told her plainly that she found Manju extremely perturbed, uneasy and scared and that she was experiencing tremendous pressure and restrictions from her husband. But the mother of the appellant convinced her that there was nothing to worry about and everything will be alright. The witness then narrated the facts to her husband and requested him to take Manju with than to Beed. P.W. 2 then sought the permission of Birdichand to take Manju to Beed but he told him that as some guests were to visit him, he (P.W. 2) can send somebody after 4-5 days to take Manju to Beed. It may be mentioned here that the details about the sufferings and the mental condition of Manju was not mentioned by this witness even to her husband (P.W. 2) as he does not say anything about this matter. Further, her statement is frightfully vague.\n70. As already indicated that the letters (Exs. 30, 32, 33) clearly show that Manju never wanted to worry or bother her parents about her disturbed condition, it appears to be most unlikely that on the occasion, of the death of her grand-father-in-law she would choose that opportunity to narrate her tale of woe to her mother. This appears to us to be a clear embellishment introduced by the prosecution to give a sentimental colour to the evidence of this witness. Ultimately, on May 25, 1982 Deepak brought Manju to Beed and this time she was accompanied by her cousin, Kavita. Here again, she states that on her arrival she found Manju extremely disturbed and under tension of fear and Manju was prepared to make a clean breast of all her troubles. However, as Kavita was there and did not give any opportunity to Manju to meet her mother alone, she (Kavita) was sent out on some pretext or the other. Thereafter, Manju told her mother that she was receiving a very shabby treatment from her husband and while narrating her miserable plight she told her about two important incidents which had greatly upset her -\n(1) that she happened to come across a love letter written by P.W. 37, Ujwala Kothari, to her husband which showed that the appellant was carrying on illicit relations with P.W. 37, and\n(2) that on one occasion the appellant told Manju that he was tired of his life and did not want to live any more and, therefore, wanted to commit suicide. Despite Manju's enquiries as to why he wanted to commit suicide, he did not give any reason.\nShe then informed her mother that when this talk was going on she (Manju) herself volunteered to commit suicide. Thereafter, Sharad put forth a proposal under which both of them were to commit suicide and they decided to write notes showing that they were committing suicide. On hearing this plan from Sharad, Manju told him that she was not inclined to commit suicide as she had not lost all hope of life and that she had expressed her desire to commit suicide only because he had said that he would do so. P.W. 20 would have us believe that while in one breath she agreed to the suicide pact yet the next moment she made a complete volte face. This is hard to believe having regard to the nature of the temperament of Manju.\n71. The two statements said to have been made by Manju to her mother appear to be contradictory and irreconcilable and smack of concoction. According to Manju, Sharad then prepared two notes one addressed to his father and another to his father-in-law and asked Manju to do the same but she refused to do anything of the sort. The witness admitted that she was not told as to what had happened to the notes written by the appellant.\n72. All this story of a suicidal pact seems to us nothing but a fairy tale. There is no mention nor even a hint in the letters (Exhibits 30, 32, 33) written by Manju about the aforesaid suicidal pact and the story narrated by the witness before the trial Court, nor was the note produced in the Court. This appears to us to be a make-believe story and was introduced to castigate the appellant for his shabby treatment towards Manju.\n73. Another intrinsic circumstance to show the untruth of this statement is that although P.W. 2 was apprised of these facts yet he never mentioned them to Birdichand particularly when he was insisting that Manju should be sent back to Pune for attending the betrothal ceremony of his daughter, Shobha. Indeed, if this fact, which is of very great importance so far as the lives of both the husband and the wife are concerned, would have been there, the first thing which P.W. 2 would have done was to tell Birdichand that matters had reached such a stage as to leave no doubt that his daughter was in an instant fear of death and it was impossible for him to allow his daughter to go to Pune where Sharad was bent on forcing her to commit suicide or even murder her, more particularly because P.W. 20 admits in her evidence that as all the things she had learnt from Manju were serious, she had informed her husband about the same who agreed with her.\n74. Apart from this grave incident, the witness deposed to another equally important matter, viz., that on the Shila Saptami day, the appellant rang up his mother to send Manju along with Shobha to a hotel (Pearl Hotel, as has been deposed to by other witnesses) because he wanted to give a party to his friends. As Shobha was not present in the house, Manju's mother-in-law sent her alone in a rickshaw to the hotel. On reaching the hotel she did not find any other person except a girl who was introduced by her husband as Ujvala Kothari. The most critical part of the incident is that the appellant is alleged to have informed Manju that she should take lessons from Ujvala as to how she should behave with him and also told her that Ujvala knew everything about him and he was completely in her hands.\nSubsequently, the appellant went away and Ujvala told her that the appellant was a short-tempered man and she should talk to him only if and when he wanted to talk to her. She (Ujvala) also told Manju that the appellant was completely under her command and she was getting every bit of information about the incidents happening between the husband and the wife. Finally, she was apprised of the fact by Ujvala that she and Shared were in love with each other. Manju is said to have retorted and protested to Ujvala by saying that she was not prepared to take any lessons from her regarding her behaviour towards her husband as she (Manju) was his wedded wife while Ujvala was only a friend. Manju also told her mother that these facts were narrated by her to the appellant and accused No. 2. As a result of this incident, Manju became a little erratic which attracted double cruelty towards her by her husband and made her extremely scared of her life and in view of this development she requested her mother not to send her back to the house of the accused.\n75. One point of importance which might be noticed here and which shows that whatever be the relations between her husband and Ujvala, the picture presented by the witness is not totally correct because if such a point of no return had already been reached, there was absolutely no question of Birdichand sending for the appellant and arranging a trip to Ooty, Mysore and other places nor would have Manju agreed to go to these places. The witness further stated that as soon as Manju came to know that Birdichand had come to take her away she was shocked and continuously kept saying that she was extremely afraid of going to her husband's house and that she should not be sent back.\n76. The behavioural attitude of Manju depicted by the witness seems to us to be absolutely contradictory to and not at all in consonance with her temperament, frame of mind, psychological approach to things and innate habits. That is why no reference had been made even directly or indirectly in any of the letters written by Manju, and she had expressly requested both Anju and Vahini not to disclose anything to her parents lest they may get worried and distressed on her account. In other words, Manju was a woman who despite her troubles and tribulations, sufferings and travails, anxiety and anguish would never have thought of narrating her woeful story to her parents and thereby give an unexpected shock to them. This feeling is mentioned in the clearest possible terms in the letters (Exts. 30, 32, 33) which we have already discussed. There is no reference at all in any of the letters regarding suicidal pact or the illicit relationship of her husband with Ujvala.\n77. Another important fact which the High Court has missed is that even according to the statement of this witness, the appellant had asked his mother to send Shobha along with Manju to the hotel and at that time he could not have been aware that Shobha would not be available. Indeed, if he had an evil intention of insulting or injuring the feelings of Manju by keeping Ujvala there he would never have asked his mother to send Shobha also because then the matter was likely to be made public. This is another inherent improbability which makes the whole story difficult to believe.\n78. Despite these serious developments both PWs 2 and 20 tried to convince Manju to accept the assurances given by Birdichand that no harm would come to her and if anything might happen they will take proper care. We find it impossible to believe that the parents who had so much love and affection for their daughter would, after knowing the circumstances, still try to take the side of Birdichand and persuade their daughter to go to Pune. Rameshwar (PW 2) should have told Birdichand point-blank that he would not send Manju in view of the serious incidents that had happened, viz., the suicidal pact, the cruel treatment of the appellant towards Manju, the constant fear of death which Manju was apprehending, the illicit relationship between the appellant and Ujvala, and the strong resistance of his daughter who was not prepared to go to Pune at any cost and was weeping and wailing all the time.\nOn the other hand, knowingly and deliberately they seem to have thrown their beloved daughter into a well of death. The fact that Manju's parents tried to console her and believed the assurance of Birdichand knowing full well the history of the case shows that any statement made by Manju to her parents was not of such great consequence as to harden their attitude. This is yet another intrinsic circumstance which negatives the story of suicidal pact and the invitation to Manju to come to the Pearl Hotel and the manner in which she was insulted in the presence of Ujvala. There is no doubt that relations between the appellant and Manju were extremely strained, may be due to his friendship with Ujvala, she may not have felt happy in her marital home as she has clearly expressed in her letters but she did not disclose anything of such great consequence which would have shocked the parents and led them to resist her going to Pune at any cost. This makes the version given by PWs 2 and 20 unworthy of credence.\n79. We now proceed to take up the evidence of PW-6, Anju, the sister of Manju. The statement of this witness is more or less a carbon copy of the evidence of PW-20 which has been discussed above and, therefore, it is not necessary to consider her evidence in all its details. So far as the first visit is concerned, she fully supports her mother that Manju was very happy as was expected of a newly married girl. When Manju came to Beed around 2nd April, 1982 she stayed there for 8-10 days and during that period the witness noticed that she was somewhat dissatisfied and complained that her husband used to return late at night. She also complained against the callous attitude of the other members of her husband's family. She also introduced the story of Ujvala Kothari and corroborated what PW 20 had said which we have discussed above. She also refers to the said suicidal pact and then to the fact that Birdichand had come to take away Manju to Pune so that she may be able to attend the betrothal ceremony of Shobha. Then she deposes to an incident which appears to be wholly improbable. According to her, on the 3rd of June, 1982, PW 2 invited his two friends, Raju and Rath, for lunch at which Birdichand was also present, and told them that Manju was not prepared to go to Pune as she was afraid to go there but Birdichand, along with his two friends, assured him that nothing would happen. We do not think that in the course of things PW-2 would be so foolish as to let the secret matters of the house known to others than the parties concerned. Thereafter the witness proves the letters (Exts. 30 and 32).\n80. She stated one important statement to the effect that on some occasions Manju had a talk with her mother in her presence. Although Manju had requested Anju not to disclose anything to her parents yet everything was made known to them. During cross-examination the witness was asked - how was it that Manju was narrating these talks when the witness had been asked not to disclose the same to her parents, which she explained away by saying that she did not ask Manju why she was disclosing these things to her mother. No satisfactory answer to this question seems to have been given by her. At another place, the witness states thus:\n\"I did not tell all these informations I received from Manju to anybody. Nor anybody enquired from me till my statement was recorded by the Police.\"\n81. Her evidence, therefore, taken as a whole is subject to the same infirmity as that of PW 20 and must suffer the same fate.\n82. PW-3, Rekha (who was addressed as 'Vahini') in Manju's letter (Ex. 33), states that on the first occasion when Manju came home she was quite happy but during her second visit to Beed in the month of April, 1982 she did not find her so and Manju complained that her husband was avoiding her to have a talk with her on one excuse or another. Manju also informed the witness that the appellant had a girl-friend by name Ujvala and the witness says that she tried to console Manju by saying that since her husband was a Chemical Engineer he may have lot of friends. While referring to Ext. 33 (letter written to her by Manju) she stated that the only complaint made in that letter was that her husband was not talking to her properly. She then deposed to an incident which happened when on her way to Bombay when the witness stayed at Pune for some time. She states that she had a talk with Manju for about half an hour when she narrated the story of the suicidal pact. She also stated that she was extremely afraid of the situation and almost broke down in tears and wept.\n83. The most important fact which may be noted in her evidence is a clear pointer to the frame of mind and the psychotic nature of Manju. Part I of the Paperbook while narrating the relationship of her husband with Ujvala she says that the appellant lost his temper and thereupon she spoke the following words to him:\n\"I am not going to spare this, I will not allow this, his bad relations even though a blot may come to our family and I have decided likewise.\"\n84. These significant and pregnant words clearly show that Manju was so much bored and disgusted with her life that she entertained a spirit of revenge and told the witness that she was not going to tolerate this even though a blot may come to the family and that she had decided likewise. This statement undoubtedly contains a clear hint that she had almost made up her mind to end her life, come what may and thereby put to trouble her husband and his family members as being suspect after her death. This appears to be a culmination of a feeling which she had expressed in one of her letters to Anju in the following words:\n\"Till I could control (myself), well and good. When it becomes impossible, some other way will have to be evolved. Let us see what happens. All right\" Similarly, in her letter (Ext. 33) to this witness she gives a concealed hint \"But till that day it is not certain that I will be alive.\"\n85. Thus the feelings of death and despair which she orally expressed to the witness at Pune seem to have been fulfilled when on the morning of 12th June, 1982 she was found dead.\n86. The evidence of PW 4, Hiralal Ramlal Sarda, is not that important. He merely states that in the last week of May, 1982, PW 2 bad called him and told him that Manju was being ill-treated by her husband and therefore she was not prepared to go to her marital home. PW 2 also informed him about the suicidal pact affair. As the witness was in a hurry to go to Hyderabad he counselled PW 2 not to take any final decision in a hurry and that Manju should not be sent to Pune with Birdichand until his return when a decision may be taken. On return from Hyderabad he learnt that Birdichand had already taken Manju to Pune and thereafter he left for Pune. Indeed, if the matter was so grave and serious that a person like PW 4, who was a relation of the appellant rather than that of PW 2, had advised him not to make haste and take a final decision but wait until his return yet PW 2 seems to have spurned his advice and sent Manju to Pune. This shows that the matter was not really of such great importance or urgency as to take the drastic step of making a blunt refusal to Birdichand about Manju's not going to Pune. This also shows that the story of suicidal pact and other things had been introduced in order to give a colour or orientation to the prosecution story.\n87. Another fact to which this witness deposes is the narration by the appellant about his having sexual act with his wife. We have already disbelieved this story as being hopelessly improbable and against the cultural heritage of our country or of our nature and habits. This is the only purpose for which this witness was examined and his evidence does not advance the matter any further.\n88. PW-5, Meena Mahajan, has been examined to boost up the story narrated by PW 2 and other witnesses she was not at all connected with the family of PW 2 but is alleged to be a friend of Manju and she says that she found Manju completely disheartened and morose and she started weeping and crying while narrating her said story. The witness goes on to state that Manju was so much terrified of the appellant that she was afraid of her life at his hands. No witness has gone to the extent of saying that there was any immediate danger to Manju's life nor did Manju say so to PWs 2, 6 and 20. This witness appears to us to be more loyal than the king. Even assuming that Manju was a friend of PW 6 but she never wrote to her any letter indicating anything of the sort. For these reasons, we are not satisfied that this witness is worthy of credence.\n89. A close and careful scrutiny of the evidence of the aforesaid witnesses clearly and conspicuously reveals a story which is quite different from the one spelt out from the letters (Exts. 30, 32 and 33). In fact, the letters have a different tale to tell particularly in respect of the following matters :\n(1) There is absolutely no reference to suicidal pact or the circumstances leading to the same,\n(2) There is no reference even to Ujvala and her illicit relations with the appellant,\n(3) There is no mention of the fact that the deceased was not at all willing to go to Pune and that she was sent by force,\n(4) The complaints made in the letters are confined to ill-treatment, loneliness, neglect and anger of the husband but no apprehension has been expressed in any of the letters that the deceased expected imminent danger to her life from her husband.\n(5) In fact, in the letters she had asked her sister and friend not to disclose her sad plight to her parents but while narrating the facts to her parents she herself violated the said emotional promise which appears to us to be too good to be true and an afterthought added to strengthen the Prosecution case,\n(6) If there is anything inherent in the letters it is that because of her miserable existence and gross ill-treatment by her husband, Manju might have herself decided to end her life rather than bother her parents.\n90. We are therefore unable to agree with the High Court and the trial Court that the witnesses discussed above are totally dependable so as to exclude the possibility of suicide and that the only irresistible inference that can be drawn from their evidence is that it was the appellant who had murdered the deceased.\n91. Putting all these pieces together a general picture of the whole episode that emerges is that there is a reasonable possibility of Manju having made up her mind to end her life either due to frustration or desperation or to take a revenge on her husband for shattering her dream and ill-treating her day in day out\n92. Apart from the spirit of revenge which may have been working in the mind of Manju, it seems to us that what may have happened is that the sum total and the cumulative effect of the circumstances may have instilled in her an aggressive impulse engendered by frustration of which there is ample evidence both in her letters and her subsequent conduct. In Encyclopedia of Crime and Justice (Vol. 4) by Sanford H. Kadish the author mentions thus:\n\"Other psychologically oriented theories have viewed suicide as a means of handling aggressive impulses engendered by frustration.\"\n93. Another inference that follows from the evidence of the witness discussed is that the constant fact of wailing and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W. Brown and Tirril Harris in their book \"Social Origins of Depression\" thus:\n\"1. Symptom data\nDepressed mood -\n1. Crying\n2. feeling miserable/looking miserable, unable to smile or laugh\n3. feelings of hopelessness about the future\n4. Suicidal thoughts\n5. Suicidal attempts\nFears/anxity/worry\n15. psychosomatic accompaniments\n16. tenseness/anxiety\n17. specific worry\n18. panic attacks\n19. phobias\nThinking\n20. feelings of self depreciation/nihilistic delusions\n21. delusions or ideas of reverence\n22. delusions of persecution/jealousy\n23. delusions of grandeur\n24. delusions of control/influence\n25. other delusions e.g. hypochondriacal worry\n26. auditory hallucinations\n27. visual hallucinations.\"\n94. Most of these symptoms appear to have been proved as existing in Manju both from her letters (Exts. 30, 32 and 33) and from the evidence discussed.\n95. We might hasten to observe here that in cases of woman of a sensitive and sentimental nature it has usually been observed that if they are tired of their life due to the action of their kith and kin, they become so desperate that they develop a spirit of revenge and try to destroy those who had made their lives worthless and under this strong spell of revenge sometimes they can go to the extreme limit of committing suicide with a feeling that the subject who is the root cause of their malady is also destroyed. This is what may have happened in this case. Having found her dreams shattered to pieces Manju tried first to do her best for a compromise but the constant ill-treatment and callous attitude of her husband may have driven her to take revenge by killing herself so that she brings ruination and destruction to the family which was responsible for bringing about her death. We might extract what Robert J. Kastenbaum in his book 'Death, Society and Human Experience' has to say:\n\"Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress.\"\n96. After a careful consideration and discussion of the evidence we reach the following conclusions on point No. 1:\n(1) that soon after the marriage the relations between Manju and her husband became extremely strained and went to the extent that no point of return had been almost reached,\n(2) that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala which embittered the relationship between Manju and him,\n(3) that the story given out by PW 2 and supported by PW 20 that when they reached Pune after the death of Manju they found appellant's weeping and wailins out of grief as this was merely a pretext for shedding of crocodile tears, cannot be believed,\n(4) that the story of suicidal pact and the allegation that appellant's illicit relations with Ujvala developed to such an extreme extent that he was so much infatuated with Ujvala as to form the bedrock of the motive of the murder of Manju, has not been dearly proved,\n(5) the statement of PW 2 that the appellant had told him that during the night on 11th June, 1982 he had sexual act with the deceased is too good to be true and is not believable as it is inherently improbable,\n(6) that despite the evidence of PWs 2, 3, 6 and 20 it has not been proved to our satisfaction that the matter had assumed such extreme proportions that Manju refused to go to Pune with her father-in-law (Birdichand) at any cost and yet she was driven by use of compulsion and persuasion to accompany him,\n(7) that the combined reading and effect of the letters (Exts. 30, 32 and 33) and the evidence of PWs 2, 3, 4, 6 and 20 clearly reveal that the signs and symptoms resulting from the dirty atmosphere and the hostile surroundings in which Manju was placed is a pointer to the fact that there was a reasonable possibility of her having committed suicide and the prosecution has not been able to exclude or eliminate this possibility beyond reasonable doubt.We must hasten to add that we do not suggest that this was not a case of murder at all but would only go to the extent of holding that at least the possibility of suicide as alleged by the defence may be there and cannot be said to be illusory.\n(8) that a good part of the evidence discussed above, is undoubtedly admissible as held by us but its probative value seems to be precious little in view of the several improbabilities pointed out by us while discussing the evidence.\n97. We might mention here that we had to re-appreciate the evidence of the witnesses and the circumstances taking into account the psychological aspect of suicide as found in the psychotic nature and character of Manju because these are important facts which the High Court completely overlooked. It seems to us that the High Court while appreciating the evidence was greatly influenced by the fact that the evidence furnished by the contents of the letters were not admissible in evidence which, as we have shown, is a wrong view of law.\n98. We now come to the second limb - perhaps one of the most important limbs of the prosecution case viz., the circumstance that the appellant was last seen with the deceased before her death. Apparently, if proved, this appears to be a conclusive evidence against the appellant but here also the High Court has completely ignored certain essential details which cast considerable doubt on the evidence led by the prosecution on this point.\n99. The question of the appellant having been last seen with the deceased may be divided into three different stages:\n(1) The arrival of Anuradha and Her children along with Manju at Takshila Apartments, followed by the arrival of the appellant and his entry into his bedroom where Anuradha was talking to Manju,\n(2) The calling of PW 29 by A-2 followed by the appellant and his brother's going out on a scooter to get Dr. Lodha and thereafter Dr. Gandhi,\n(3) Sending for Mohan Asava (PW 30) and the conversation between the appellant, Birdichand and others as a result of which the matter was reported to the police.\n100. Although the aforesaid three stages of this circumstance cannot technically be called to mean that the accused was last seen with the deceased but the three parts combined with the first circumstance might constitute a motive for the murder attributed to the appellant.\n101. From a perusal of the judgment of the High Court on these points, it appears that the High Court has made a computerised and mathematical approach to the problem in fixing the exact time of the various events which cannot be correct as would appear from the evidence of the witnesses, including Dr. Banerjee (PW 33).\n102. The evidence of PW 7, the motor-rickshaw driver shows that on the night of the 11th of June he had brought the deceased along with Anuradha and others and dropped them near the Takshila Apartments at about 11.00 p.m. The witness was cross-examined on several points but we shall accept the finding of the High Court on the fact that on the 11th of June, 1982 the witness had dropped the persons, mentioned above, at about 11.00 p.m. The rest of the evidence is not germane for the purpose of this case.\nIt may, however, be mentioned that one should always give some room for a difference of a few minutes in the time that a layman like PW 7 would say. We cannot assume that when the witness stated that he had dropped Manju and others at 11.00 p.m., it was exactly 11.00 p.m., it would have been 10-15 minutes this way or that way. His evidence is only material to show the approximate time when Manju returned to the apartments.\n103. The next witness on this point is PW-28, K. N. Kadu. This witness corroborates PW-7 and stated that he had heard the sound of a rickshaw near the apartments when the wife of A-2, Manju and 3 children entered the apartments and went to their rooms. He further says that after about 15 minutes he saw the appellant coming on a scooter and while be was parking his scooter the witness asked him why did he come so late to which be replied that he was busy in some meeting. This would show that the appellant must have arrived at the apartments near about 11.30 or 11.45 p.m. It is very difficult to fix the exact time because the witness himself says that he had given the timings approximately. The High Court was, therefore, not justified in fixing the time of the arrival of Manju and party or the appellant with almost mathematical precision for that would be a most unrealistic approach. The High Court seems to have speculated that Manju must have died at 12 midnight, that is to say, within 15-20 minutes of the arrival of the appellant It is, however, impossible for us to determine the exact time as to when Manju died because even Dr. Banerjee says in his evidence that the time of death of the deceased was between 18 to 36 hours which takes us to even beyond 12 in the night. At any rate, this much is certain that Manju must have died round about 2.00 a.m. because when Dr. Lodha arrived at 2.45 a.m. he found her dead and he had also stated that rigor mortis had started setting to. It is, therefore, difficult to fix the exact time as if every witness had a watch which gave correct and exact time. Such an inference is not at all called for.\n104. The third stage of this matter is that while the witness was sleeping he heard the sound of starting of a scooter and got from his bed and saw appellant and A-2 going away. Thereafter, be found 7-8 persons coming and going on their scooters. The High Court seems to suggest that this must have happened by about 1.30 p.m. Even so, this does not prove that Manju must have died at midnight. As the witness had been sleeping and was only aroused by the sound of scooters, it would be difficult to fix the exact time when be saw the appellant and A-2 going out on their scooters. His evidence, therefore was rightly relied upon by the High Court in proving the facts stated by him.\n105. PW-29, B. K. Kadu, who was serving as a watchman at the Takshila Apartments says that near about the midnight be was called by Rameshwar, A-2 and on hearing the shouts be went to flat No. 5. He further says that A-2 directed him to unbolt or unchain the door but the door was not found closed from inside and hence A-2 went out and returned after some time. While the witness was standing at the door A-2 returned and after his return the witness also came back to his house and went to sleep. Perhaps the witness was referring to the incident when A-1 and A-2 had gone on scooter to fetch Dr. Lodha. During cross-examination the witness admitted that he did not possess any watch and gave the timings only approximately. We shall accept his evidence in toto but that leads us nowhere.\n106. This is all the evidence so far as the first stage of the case is concerned and, in all probability, it does not at all prove that A-1 had murdered the deceased. On the other hand, the circumstances proved by the three witnesses are not inconsistent with the defence plea that soon after entering the room Manju may have committed suicide.\n107. Part II of this circumstance relates to the coming of Dr. Lodha and then Dr. Gandhi on the scene of occurrence and we accept their evidence in toto. Dr. Lodha was a family doctor of the appellant's family and it was quite natural to send for him when the appellant suspected that his wife was dead. Although Dr. Lodha (PW 24) was a family doctor of the appellant's family yet he did not try to support the defence case and was frank enough to tell the accused and those who were present there that it was not possible for him to ascertain the cause of death which could only be done by a post-mortem. In other words, he indirectly suggested that Manju's death was an unnatural one, and in order to get a second opinion he advised that Dr. Gandhi (PW 25) may also be summoned. Accordingly, Dr. Gandhi was called and he endorsed the opinion of Dr. Lodha. Such a conduct on the part of the appellant or the persons belonging to his family is wholly inconsistent with the allegation of the prosecution that the appellant had murdered the deceased.\n108. The High Court seems to have made one important comment - as to why Dr. Lodha and Dr. Gandhi were called from some distance when Dr. Kelkar, who was a Skin Specialist and another Doctor who was a Child Expert, were living in the same building. This comment is neither here nor there. It is manifest that Birdichand was a respectable person of the town and when he found that his daughter-in-law had died he would naturally send for his family doctor rather than those who were not known to him.\n109. It appears that PW 30 Mohan Asava was also summoned on telephone and when he came at the scene of occurrence he found A-2, Birdichand sitting on the floor of the room and Birdichand hugged him out of grief, and told him that Manju had died of shock and the Doctors were not prepared to give a death certificate.\n110. In order to understand the evidence of this witness it may be necessary to determine the sequence of events so far as PW 30 is concerned. The witness has stated that while he was sleeping he was aroused from his sleep by a knock at the door by Ram Vilas Sharda (brother of appellant) at about 4.00 or 4.15 a.m. Ram Vilas told him that Manju bad died and the doctors were not prepared to give any death certificate. After having these talks the witness, along with Ram Vilas, proceeded to the apartments and remained there till 5.15 a.m. Then he returned to his house, took bath and at about 6.30 a.m. he received a telephone call from Ram Vilas for lodging a report with the police with the request that the time of death should be given as 5.30 a.m. Consequently, he reached the police station near about 7.00 or 7.15 a.m. and lodged a report stating that Manju had died at 5.30 a.m.\n111. This witness appears to be of doubtful antecedents and, therefore, his evidence has to be taken with a grain of salt. He admitted in his statement that some proceedings about evasion of octroi duty were pending against him in the Court. He also admitted that he was convicted and sentenced to 9 months' R.I. under the Food Adulteration Act in the year 1973.\n112. Apart from this, it appears that most of the statements which he made in the Court against Birdichand and the other accused, were not made by him before the police. These statements were put to him and he denied the same but they have been proved by the Investigation Officer, PW 40 whose evidence appears the printed Paperbook. These belated statements made in the Court may be summarised thus:\n113. While in his statement before the Court the witness states that the death of Manju was suspicious yet he made no such statement before the police on being confronted by the statement of PW 40. Another important point on which his statement does not appear to be true is that the dominant fact mentioned to him by Birdichand and others was that the doctors were not prepared to issue death certificate but be did not say so before the police. Similarly, he deposed in the Court about the statement made to him by Birdichand that he would lose his prestige and therefore the body should be cremated before 7.00 a.m. but he advised him not to do so unless he has informed the police otherwise his whole family would be in trouble. Almost the entire part of his evidence in para 5 appears to be an afterthought, as PW 40 stated thus:\n\"I recorded the statement of PW 30 Mohan Asava. He did not state before me that death of Manju was suspicious. He did not state before me that accused No. 3 informed him that the Doctors were not prepared to issue the death certificate. He did not state before me that the demand was made of the death certificate from the Doctors or the Doctors refused to give the same. During his statement this witness did not make the statements as per para No. 5 excluding the portions from A to F of his examination-in-chief.\"\n114. The portions referred to as 'A to F' in para No. 5 of examination-in-chief of PW 30 may be extracted thus:\n\"Birdichand then started telling me that Manju had died on account of shock and that ......... he said that she died of heart attack ......... under any circumstance he wanted to cremate Manju before 7 O' clock ............... when he said that he would spend any amount but wanted to cremate her before 7.00 a.m.\"\n115. This statement does not appear to be true for the following reasons:\n(a) Birdichand knew full well that PW 30 was a police contact constable and as he was not prepared to persuade the doctors to give a death certificate, his attitude was hardly friendly as he was insisting that the matter should be reported to the police.\nIt is, therefore, difficult to believe that Birdichand would take such a great risk in laying all his cards on the table knowing full well that the witness was not so friendly is he thought and therefore he might inform the police; thereby he would be in a way digging his own grave.\n(b) On a parity of reasoning it would have been most improbable on the part of the appellant, after having decided to report the matter to the police, to ask PW 30 to report the time of death as 5.30 a.m. knowing full well his attitude when he came to the apartments.\n116. It is not at all understandable how the witness could have mentioned the time of Manju's death as 5.30 a.m. or, at any rate, whether death was known to her husband and when he himself having gone to the apartments near about 4.15 a.m. knew full well that Manju had died earlier and that Dr. Lodha and Dr. Gandhi had certified the same and advised Birdichand to report the matter to the police. In the original Ext. 120 (in Marathi language), it appears that the time of death given by the witness is 'Pahate' which, according to Molesworth's Marathi-English Dictionary, means 'The period of six ghatika before sunrise, the dawn' i.e., about 2 hours 24 minutes before sunrise (one ghatika is equal to 24 minutes). This would take us to near about 3.00 a.m. Either there is some confusion in the translation of the word 'Pahate' or in the words '5.30 a.m.', as mentioned in the original Ext. 120. However, nothing much turns on this except that according to the witness Manju must have died around 3.00 a.m. which is consistent with the evidence of Dr. Lodha that when he examined Manju at about 2.30 a.m. he found her dead and rigor mortis had already started setting in.\n117. We are not concerned here with the controversy whether the report was admissible u/s. 154 or S. 174 of the Code of Criminal Procedure but the fact remains that the police did receive the information that the death took place at 5.30 a.m. The High Court seems to have made a capital out of this small incident and has not made a realistic approach to the problem faced by Birdichand and his family. Being a respectable man of the town, Birdichand did not want to act in a hurry lest his reputation may suffer and naturally required some time to reflect and consult his friends before taking any action. The allegation that A-3 told him to report the time of death as 5.30 a.m. is not at all Proved but is based on the statement of PW 30, before the police. Thus, the approach made by the High Court to this aspect of the matter appears to be artificial and unrealistic as it failed to realise that the question of the time of death of the deceased as 5.30 a.m. could never have been given by the appellant or any other accused because they knew full well that the two doctors had examined the whole matter and given the time of death as being round about 1.30 a.m. Having known all these facts how could anyone ask PW 30 to give the time of death at the police station at 5.30 a.m.\n118. Thus, it will be difficult for us to rely on the evidence of such a witness who had gone to the extent of making wrong statements and trying to appease both Birdichand and the prosecution, and, therefore, his evidence does not inspire any confidence.\n119. The last part of the case on this point is the evidence of PWs 2 and 4, where the appellant is said to have told them that he had sexual intercourse with his wife near about 5.00 a.m. on the 12th June, 1982. Apart from the inherent improbability in the statement of the appellant, there is one other circumstance which almost clinches the issue. If appears that Kalghatgi (PW 20). Inspector-in-charge of the Police Station made a query from Dr. Banerjee which is extracted below:\n\"Whether it can be said definitely or not as to whether sexual intercourse might have taken just prior to death?\"\nThe above query was made in Ext. 129 and the answer of the Doctor appears in Exhibit 187 which is extracted below :\n\"From clinical examination there was no positive evidence of having any recent sexual intercourse just prior to death.\"\n120. This positive finding of the Doctor therefore knocks the bottom out of the case made out by the prosecution that the appellant had told PWs 2 and 4 about having sexual intercourse with his wife. Unfortunately, however, the High Court instead of giving the benefit of this important circumstance to the accused has given the benefit to the prosecution which is yet another error in the approach made by the High Court while assessing the prosecution evidence. Having regard to the very short margin of time between the arrival of the appellant in his bedroom and the death of Manju, it seems to be well-nigh impossible to believe that he would try to have sexual intercourse with her. This circumstance, therefore, falsifies the evidence of PWs 2 and 4 on this point and shows the extent to which the witnesses could go to implicate the appellant.\n121. Finally, in view of the disturbed nature of the state of mind of Birdichand and the catastrophe faced by him and his family, it is difficult to believe that the grief expressed and the tears shed by the appellant when PW 2 met him could be characterised as fake. If it is assumed that the accused did not commit the murder of the deceased then the weeping and wailing and expressing his grief to PW 2 would be quite natural and not fake.\n122. There are other minor details which have been considered by the High Court but they do not appear to us to be very material.123. Taking an overall picture on this part of the prosecution case the position seems to be as follows:\n(1) if the accused wanted to give poison while Manju was wide awake, she would have put up stiffest possible resistance as any other person in her position would have done. Dr. Banerjee in his post-mortem report has not found any mark of violence or resistance. Even if she was overpowered by the appellant she would have shouted and cried and attracted persons from the neighbouring flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short-while before the appellant.\n(2) Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju in a glass of water, if she happened to ask for it. But if this was so, she being a chemist herself would have at once suspected some foul play and once her suspicion would have arisen it would be very difficult for the appellant to murder her.\n(3) The third possibility is that as Manju had returned pretty late to the flat she went to sleep even before the arrival of the appellant and then he must have tried to forcibly administer the poison by the process of mechanical suffocation, in which case alone the deceased could not have been in a position to offer any resistance. But this opinion of the Doctor has not been accepted by the High Court which, after a very elaborate consideration and discussion of the evidence, the circumstances and the medical authorities, found that the opinion of the Doctor that Manju died by mechanical suffocation has not been proved or, at any rate, it is not safe to rely on such evidence. In this connection, we might refer to the finding of fact arrived at by the High Court on this point:\n\"In view of the above position as is available from the evidence of Dr. Banerjee and from the observations made by the medical authorities it will not be possible to say that the existence of the dark red blood in the right ventricle exclusively points out the mechanical suffocation particularly when such phenomenon is available in cases of poisoning by potassium cyanide.\"\n123. In view of this answer it will not be possible to say conclusively that this particular symptom of observation is exclusively available in case of mechanical suffocation. Thus we have discussed all the seven items on which Dr. Banerjee has relied for the purpose of giving an opinion that there was mechanical suffocation. In our view, therefore, those 7 findings would not constitute conclusive date for the purpose of holding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation.\n124. It is not necessary for us to repeat the circumstances relied upon by the High Court because the finding of fact speaks for itself. This being the position, the possibility of mechanical suffocation is completely excluded.\n(4) The other possibility that may be thought of is that Manju died a natural death. This also is eliminated in view of the report of the Chemical Examiner as confirmed by the post-mortem that the deceased had died as a result of administration of potassium cyanide.\n(5) The only other reasonable possibility that remains is that as the deceased was fed up with the maltreatment by her husband, in a combined spirit of revenge and hostility after entering the flat she herself took potassium cyanide and lay limp and lifeless.\nWhen the appellant entered the room he must have thought that as she was sleeping she need not be disturbed but when he found that there was no movement in the body after an hour or so, his suspicion was roused and therefore he called his brother from the adjacent fiat to send for Dr. Lodha.\n125. In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide, as alleged by the defence, can be safely ruled out or eliminated.\n126. From a review of the circumstances mentioned above, we are of the opinion that the circumstance of the appellant having been last seen with the deceased has not been proved conclusively so as to raise an irresistible inference that Manju's death was a case of blatant homicide.\n127. This now brings us to an Important chapter of the case on which great reliance appears to have been placed by Mr. Jethmalani on behalf of the appellant. Unfortunately, however, the aspect relating to interpolations in the post-mortem report has been completely glossed over by the High Court which has not attached any importance to the infirmity appearing in the medical evidence in support of the said interpolations. Although the learned counsel for the appellant drew our attention to a number of interpolations in the post-mortem report as also the report sent to the Chemical Examiner, we are impressed only with two infirmities which merit serious consideration. To begin with, it has been pointed out that in the original post-mortem notes which were sent to Dr. Banerjee (P.W. 33) for his opinion, there is a clear interpolation by which the words 'can be a case of suicidal death' appear to have been scored out and Dr. Banerjee explained that since be had written the words 'time since death' twice, therefore, the subsequent writing had been scored out by him. In other words, the Doctor clearly admitted the scoring out of the subsequent portion and we have to examine whether the explanation given by him is correct. In order to decide this issue we have examined for ourselves the original post-mortem notes (Exhibit 128) where the writing has been admittedly scored out by Dr. Banerjee. The relevant column against which the scoring has been done is column No. 5 which runs thus:\n\"Substance of accompanying Report from Police Officer or Magistrate, together with the date of death, if known. Supposed cause of death, or reason for examination.\"\n128. The last line indicates that the Doctor was to note two things -\n(1) the date of death, if known, and\n(2) the supposed cause of death. This document appears to have been written by P.W. 33 on 12-6-1982 at 4.30 p.m.\nThe relevant portion of the words written by the Doctor are 'time since death' which were repeated as he states in his statement. After these words some other words have been admittedly scored out and his (P.W. 33) explanation was that since he had written 'time since death' twice, the second line being a repetition was scored out. A bare look at Ex. 128 does not show that the explanation given by the Doctor is correct. We have ourselves examined the said words with the help of a magnifying glass and find that the scored words could not have been 'time since death'. The only word common between the line scored out and the line left intact is 'death'. To us, the scored out words seem to be 'can be a case of suicidal death'. Dr. Banerjee however stuck to his original stand which is not supported by his own writing in the document itself. If seems to us that at the first flush when he wrote the post-mortem notes it appeared to him that no abnormality was detected and that it appears to be a case of suicide rather than that of homicide. This, therefore, is the strongest possible circumstance to make the defence highly probable, if not certain. Furthermore, the Doctor's explanation that the scored words were \"time since death\", according to the said explanation, the scored words are only three whereas the portion scored out contains as many as seven words. Hence the explanation of the Doctor is not borne out from the document.\n129. It is true that the Doctor reserved his opinion until the chemical examiner's report but that does not answer the question because of column No. 5 of post-mortem notes Dr. Banerjee has clearly written \"can be a case of suicidal death\" which indicates that in the absence of the report of the chemical examiner, he was of the opinion that it could have been a case of suicide. In his evidence, P.W. 33 stated that in Exh. 128 in column No. 5 the contents scored out read 'time since death' and since it was repeated in the next line, be scored the words in the second line. Despite persistent cross-examination the Doctor appears to have stuck to his stand. It cannot, therefore, be gainsaid that this matter was of vital importance and we expected the High Court to have given serious attention to this aspect which goes in favour of the accused.\n130. Another interpolation pointed out by the learned counsel is regarding position of tongue as mentioned in Exh. 134. In the original while filling up the said column the Doctor appears to have scored out something; the filled up entry appears thus - 'mouth is closed with tip (something scored out) seen caught between the teeth'. But in the carbon copy of the report which was sent to the Chemical Examiner (Exh. 132) be has added 'caught between tee teeth' in ink but in the original there is something else. This is fortified by the fact that the copy of the report actually, sent to the chemical examiner does not contain any interpolation against the said column where the filled up entry reads 'Inside mouth'.\n131. The combined effect of these circumstances show that Dr. Banerjee (P.W. 33) tried to introduce some additional facts regarding the position of the tongue. Perhaps this may be due to his final opinion that the deceased died due to mechanical suffocation which might lead to the tongue being pressed between the teeth. This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor, the entries must have been made after the copy was sent to the Chemical Examiner. However, this circumstance is not of much consequence because the opinion of the Doctor that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation has not been proved. This aspect need nor detain us any further because the High Court has not accepted the case of mechanical suffocation.\n132. So far as the other findings of Dr. Banerjee are concerned we fully agree with the same. A number of comments were made on behalf of the appellant about Dr. Banerjee's integrity and incorrect reports but subject to what we have said, we do not find any substance in those contentions.\n133. In its judgment the High Court has given a number of circumstances which according to it, go to prove the prosecution case showing that the appellant had administered the poison during the night of 11th June, 1982. These circumstances may be extracted thus:\n(1) In the bed-room Manju died of poisoning between 11.30 p.m. and 1 a.m. in the night between 11/12th June, 1982.\n(2) Accused No. 1 was present in that bed-room since before the death of Manju i.e. since about 11.15 p.m.\n(3) Accused No. 1 did not return to the flat at 1.30 a.m. or 1.45 a.m. as alleged.\n(4) The conduct of accused No. 1 in not calling for the immediate help of Dr. Shrikant Kelkar and/or Mrs. Anjali Kelkar is inconsistent with his defence that he felt suspicious of the health of Manju when he allegedly returned to the flat at 1.50 a.m.\n(5) Indifferent conduct of accused No. 1 when Dr. Lodha and Dr. Gandhi went to the flat in Takshila apartment. Accused No. 1 did not show any anxiety which one normally finds when the doctor comes to examine the patient. Accused No. 1 should have accompanied the doctor when they examined Manju and should have expressly or by his behaviour disclosed his feelings about the well being of his wife. It was also necessary for him to disclose the alleged fact that he saw Manju in a suspicious condition when he returned at about 1.30 a.m. or so.\n(6) An attempt of Birdichand to get the cremation of Manju done before 7 a.m. on 12-6-1982 even by spending any amount for that purpose. This conduct though of Birdichand shows the conduct of a person to whom accused No. 1 had gone and informed as to what had happened.\n(7) Delay and false information to police at the hands of Mohan Asava. Though the information is given by Mohan as per the phone instructions of accused No. 3 it is presumed that accused No. 1 must have told accused No. 3 about the incident and on that basis accused No. 3 gave instructions to Mohan Asava.\n(8) Accused No. 1 himself does not take any action either personally or through somebody else to give correct information to police.\n(9) Arrangement of the dead body to make show that Manju died a peaceful and natural death.\n(10) Accused No. 1 has a motive to kill Manju as he wanted to get rid of her to continue relations with Ujwala.\n(11) Absence of an anklet on left ankle of Manju is inconsistent with the defence that Manju committed suicide.\n(12) The conduct of the accused in concealing the anklet in the fold of the Chaddar is a conduct of a guilty man.\n(13) The door of the bedroom was not found bolted from inside. This would have been normally done by Manju if she had committed suicide.\n(14) Potassium cyanide must not have been available to Manju.\n(15) Manju was 4 to 6 weeks pregnant. This is a circumstance which would normally dissuade her from committing suicide.\n(16) Denial of the part of accused No. 1 of admitted or proved facts.\n(17) Raising a false plea of absence from the bedroom at the relevant time.\n134. We have already discussed most of the circumstances extracted above and given out opinion, and have also fully explained the effect of circumstances Nos. 1, 2, 3, 4, 5 and 6. We might again even at the risk of repetition say that too much reliance seems to have been placed by the High Court on circumstance No. 4 as the appellant did not immediately call for Dr. Shrikant Kelkar (P.W. 26) and Dr. (Mrs.) Anjali Kelkar (P.W. 27). In a matter of this magnitude it would be quite natural for the members of the appellant's family to send for their own family doctor who was fully conversant with the ailment of every member of the family. In these circumstances there was nothing wrong if the appellant and his brother went to a distance of 1 1/2 Km. to get Dr. Lodha.\nSecondly, Dr. Shrikant Kelkar was a skin specialist whereas Dr. (Mrs.) Anjali Kelkar was a Paediatrician and the appellant may have genuinely believed that as they belonged to different branches, they were not at all suitable to deal with such a serious case. The High Court was, therefore, wrong in treating this circumstance as an incriminating conduct of the appellant.\n135. Circumstance No. 5 is purely conjectural because as soon as Dr. Lodha came be examined Manju and advised that Dr. Gandhi be called. We fail to understand what was the indifferent conduct of the appellant when he had sent for the two Doctors who examined the deceased. The appellant was in the same room or rather in an adjacent room when the deceased was being examined. From this no inference can be drawn that the appellant was indifferent to the state in which Manju was found.\n136. As regards circumstance No. 6 we have already explained this while dealing with the evidence of Mohan Asava, P.W. 30. As regards circumstance No. 7, the High Court has presumed that there being no dependable evidence that the information given to the police by P.W. 30 was false and that the appellant must have told A-3 about the incident on the basis of which he gave instructions to P.W. 30. This is also far from the truth as has been pointed out by us while dealing with the evidence of P.W. 30.\n137. Circumstance No. 8 is that P.W. 30 was asked to report the matter to the police. When the dead body was lying in the flat what action could the appellant have taken except reporting the matter to the police through one of his known persons. So far as circumstances Nos. 9 and 10 are concerned, they do not appear to us to be of any consequence because, as shown by us, from a reading of the letters (Exhs. 30, 32 and 33) and the conduct of the appellant, we do not find any evidence of a clear motive on the part of the appellant to kill Manju.\n138. Circumstances Nos. 11 and 12 are also of no assistance to the prosecution because whether the anklet was in the chaddar or elsewhere is wholly insignificant and does not affect the issue in question at all. Circumstance No. 13 is also speculative because if the bedroom was not found bolted from inside that would itself not show that Manju could not have committed suicide. Various persons may react to circumstances in different ways. When Manju entered her bedroom her husband had not come and since she went to sleep she may not have bolted the door from inside to enable her husband to enter the room. As regards circumstance No. 14, the High Court has overlooked a very important part of the evidence of P.W. 2 who has stated of Part I of the printed paperbook thus:\n\"The plastic factory at Beed is a partnership concern in which two sons of Dhanraj, my wife and sister-in-law, i.e., brother's wife are partners.\"\n139. Dr. Modi's Medical Jurisprudence and Toxicology shows that 'Cyanide is also used for making basic chemicals for plastics'. Apart from the fact that the High, Court in relying on this circumstance has committed a clear error of record, it is an additional factor to show that cyanide could have been available to Manju when she visited Beed for the last time and had stayed there for more than a week.\n140. Circumstance No. 15 - the fact that Manju was 4 to 6 weeks pregnant would dissuade Manju from committing suicide is also purely speculative. A pregnancy of 4 to 6 weeks is not very serious and can easily be washed out. Moreover, when a person has decided to end one's life these are matters which do not count at all. On the other hand, this circumstance may have prompted her to commit suicide for if a child was born to her, in view of her ill-treatment by her husband and her in-laws, the child may not get proper upbringing. Any way, we do not want to land ourselves in the field of surmises and conjectures as the High Court has done.\n141. Circumstance No. 16 is wholly irrelevant because the prosecution cannot derive any strength from a false plea unless it has proved its case with absolute certainty. Circumstance No. 17 also is not relevant because there is no question of taking a false plea of absence from the bedroom at the relevant time as there is no clear evidence on this point.\n142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement u/s. 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat 1951 Indlaw SC 81  this Court held that any circumstance in respect of which an accused was not examined u/s. 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination u/s. 342 or S. 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra 1975 Indlaw SC 464, this Court held thus:\n\"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.\"\n143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat 1979 Indlaw SC 439, where the following observations were made:\n\"In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.\"\n144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination u/s. 313 of the Criminal Procedure Coda have to be completely excluded from consideration.\n145. We might mention here an important argument advanced by counsel for the appellant and countered by the Additional Solicitor-General. It was argued before the High Court that it was highly improbable that if the betrothal ceremony of appellant's sister, which was as important as the marriage itself, was going to be performed on the 13th of June, would the appellant choose a day before that for murdering his wife and thereby bring disgrace and destruction not only to his family but also to her sister. We have already adverted to this aspect of the matter but it is rather interesting to note how the High Court has tried to rebut this inherent improbability, on the ground that in a case of administration of poison the culprit would just wait for an opportunity to administer the same and once he gets the opportunity he is not expected to think rationally but would commit the murder at once. With due respect to the Judges of the High Court, we are not able to agree with the somewhat complex line of reasoning which is not supported by the evidence on record. There is clear evidence, led by the prosecution, that except for a week or few days of intervals. Manju always used to live with her husband and she had herself complained that be used to come late at night.\nHence, as both were living alone in the same room for the last four months there could be no dearth of any opportunity on the part of the appellant to administer poison if he really wanted to do so. We are unable to follow the logic of the High Court's reasoning that once the appellant got an opportunity he must have clung to it. The evidence further shows that both Manju and appellant had gone for a honeymoon outside Pune and even at that time he could have murdered her and allowed the case to pass for a natural death. However, these are matters of conjectures.\n146. The Additional Solicitor-General realising the hollowness of the High Court's argument put it in a different way. He submitted that as the deceased was 4-6 weeks pregnant the appellant realised that unless the deceased was murdered at the behest it would become very difficult for him to murder her, even if he had got an opportunity, if a child was born and then he would have to maintain the child also which would have affected his illicit connections with Ujvala. This appears to be an attractive argument but on close scrutiny it is Untenable. If it was only a question of Manju's being 4-6 weeks pregnant before her death, the appellant could just as well have waited just for another fortnight till the marriage of his sister was over which was fixed for 30th June, 1982 and then either have the Pregnancy terminated or killed her. Moreover, it would appear from the evidence of P.W. 2 that in his community the Kohl ceremony is not merely a formal betrothal but a very important ceremony in which all the near relations are called and invited to attend the function and a dinner is hosted. We might extract what P.W. 2 says about this:\n\"At the time of Kohl celebration of Manju, on 2-8-1981 my relatives i.e. my sister from outside had attended this function and many people were invited for this function. A dinner was also hosted by me. In that function the father of the bridegroom is required to spend for the dinner, while the presentations made to the bride are required to be given or done at the expenses of the side of bridegroom. This programme is not attended by the bridegroom.\"\n147. As Birdichand and others were made co-accused in the case they were unable to give evidence on this point but it is the admitted case of both the parties that the accused belonged to the same community as P.W. 2. In these circumstances, it is difficult to accept the argument that the appellant would commit the murder of his wife just on the eve of the Kohl ceremony, when he could have done the same long before that ceremony or after the marriage as there was no hurry nor any such impediment which would deny him any opportunity of murdering his wife.\n148. We now come to the nature and character of the circumstantial evidence. The law on the subject is well settled for the last 6-7 decades and there have been so many decisions on this point that the principles laid down by Courts have become more or less exiomatic.\n149. The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the present case which, as we shall show, are clearly distinguishable. The High Court was greatly impressed by the view taken by some Courts, including this Court, that a false defence or a false plea taken by an accused would be an additional link in the various chain of circumstantial evidence and seems to Suggest that since the appellant had taken a false plea that would be conclusive, taken along with other circumstances, to prove the case. We might, however, mention at the outset that this is not what this Court has said. We shall elaborate this aspect of the matter a little later.\n150. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves. Complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.\n151. Before discussing the cases relied Upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh 1952 Indlaw SC 89. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date for instance, the cases of Tufail v. State of Uttar Pradesh 1969 Indlaw SC 573, and Ramgopal v. State of Maharashtra 1971 Indlaw SC 555. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case 1952 Indlaw SC 89 (supra):\n\"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.\"\n152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:\n(1) the circumstances from which the conclusion of guilt is to be drawn fully, established.\nIt may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra 1973 Indlaw SC 181, where the following observations were made:\n\"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.\"\n(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,\n(3) the circumstances should be of a conclusive nature and tendency,\n(4) they should exclude every possible hypothesis except the one to be proved, and\n(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.\n153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.\n154. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as, to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, 1952 NZLR 111, thus:\n\"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime, morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury, that upon no rational hypothesis other than murder can the facts be accounted for.\"\n155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'.\n156. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there in certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay 1959 Indlaw SC 124 Lagu's case as also the principles enunciated by this Court in Hanumant's case 1952 Indlaw SC 89 (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases - Tufail's case 1969 Indlaw SC 573  (supra), Ramgopal's case 1971 Indlaw SC 555 (supra), Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19-2-1958), Dharambir Singh v. State of Punjab  (Criminal Appeal No. 98 of 1958 decided on 4-11-1958)\nThere are a number of other cases where although Hanumant's case 1952 Indlaw SC 89 has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration 1973 Indlaw SC 211. Mohan Lal Pangasa v. State of U.P. 1974 Indlaw SC 395, Shankarlal Gyarasilal Dixit v. State of Maharashtra 1980 Indlaw SC 47, and M. G. Agarwal v. State of Maharashtra 1962 Indlaw SC 520, a five-Judge Bench decision.\n157. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar 1955 Indlaw SC 25, to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus:\n\"But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation .............. such absence of explanation or false explanation would itself be an additional link which completes the chain.\"\n158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied :\n(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,\n(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and\n(3) the circumstance is in proximity to the time and situation.\n159. If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the Court and not otherwise. On the facts and circumstances of the present case this does not appear to be such a case. This aspect of the matter was examined in Shankarlal's case 1980 Indlaw SC 47 (supra) where this Court observed thus:\n\"Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused.\"\n160. This Court, therefore, has in no way departed from the five conditions laid down in Hanumant's case 1952 Indlaw SC 89 (supra). Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the Court. When the prosecution is unable to prove any of the essential principles laid down in Hanumant's case 1952 Indlaw SC 89, the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General.\n161. Moreover, in M. G. Agarwal's case1962 Indlaw SC 520 (supra) this Court while reiterating the principles enunciated in Hanumant's case 1952 Indlaw SC 89 observed thus:\n\"If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt.\" In Shankarlal's this Court reiterated the same view thus: \"Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment.\"\n162. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh 1973 Indlaw SC 307, this Court made the following observations:\n\"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.\"\n163. We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal's case 1971 Indlaw SC 555 (supra) this Court held thus:\n\"Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question ? (secondly), had the accused the poison in question in his possession ? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased ? It is only when the motive is there and these facts are all proved that the Court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death.\"\n164. So far as this matter is concerned, in such cases the Court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:\n(1) there is a clear motive for an accused to administer poison to the deceased,\n(2) that the deceased died of poison said to have been administered,\n(3) that the accused had the poison in his possession,\n(4) that he had an opportunity to administer the poison to the deceased.\n165. In the instant case, while two ingredients have been proved but two have not. In the first place, it has no doubt been proved that Manju died of potassium cyanide and secondly, it has also been proved that there was an opportunity to administer the poison. It has, however, not been proved by any evidence that the appellant had the poison in his possession. On the other hand, as indicated above, there is clear evidence of P.W. 2 that potassium cyanide could have been available to Manju from the plastic factory of her mother, but there is no evidence to show that the accused could have procured potassium cyanide from any available source. We might here extract a most unintelligible and extraordinary finding of the High Court -\n\"It is true that there is no direct evidence on these two points, because the prosecution is not able to lead evidence that the accused had secured potassium cyanide poison from a particular source. Similarly there is no direct evidence to prove that be had administered poison to Manju. However, it is not necessary to prove each and every fact by a direct evidence. Circumstantial evidence can be a basis for proving this fact.\"\n166. The comment made by the High Court appears to be frightfully vague and absolutely unintelligible. While holding in the clearest possible terms that there is no evidence in this case to show that the appellant was in possession of poison, the High Court observes that this fact may be proved either by direct or indirect (circumstantial) evidence. But it fails to indicate the nature of the circumstantial or indirect evidence to show that the appellant was in possession of poison. If the Court seems to suggest that merely because the appellant had the opportunity to administer poison and the same was found in the body of the deceased, it should be presumed that the appellant was in possession of poison, then it has committed a serious and gross error of law and has blatantly violated the principles laid down by this Court. The High Court has not indicated as to what was the basis for coming to a finding that the accused could have procured the cyanide. On the other hand, in view of the decision in Ramgopal's case 1971 Indlaw SC 555 (supra) failure to prove possession of the cyanide poison with the accused by itself would result in failure of the prosecution to prove its case. We are constrained to observe that the High Court has completely misread and misconstrued the decision in Ramgopal's case 1971 Indlaw SC 555. Even prior to Ramgopal's case 1971 Indlaw SC 555 there are two decisions of this Court which have taken the same view. In Chandrakant Nyalchand Seth's case (Criminal Appeal No. 120 of 1957 decided on 19-2-1958) this Court observed thus:\n\"Before a person can be convicted of murder by poisoning, it is necessary to prove that the death of the deceased was caused by poison, that the poison in question was in possession of the accused and that poison was administered by the accused to the deceased. There is no direct evidence in this case that the accused was in possession of Potassium Cyanide or that he administered the same to the deceased.\"\n167. The facts of the case cited above were very much similar to the present appeal. Here also, the Court found that the circumstances afforded a greater motive to the deceased to commit suicide than for the accused to commit murder. This view was reiterated in Dharambir Singh's case (Criminal Appeal No. 98 of 1958 decided on 4-11-1958) where the Court observed as follows:\n\"Therefore, along with the motive, the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the same to the deceased; (Mt. Gajrani v. Emperor 1933 Indlaw ALL 391). It is only when the motive is there and these facts are all proved that the Court may be able to draw the inference, in a case of circumstantial evidence, that the poison was administered by the accused to the deceased resulting in his death.\"\nWe feel that it was not right for the High Court to say, when this link in the chain had failed, that it could not be very difficult for anybody to procure potassium cyanide and therefore the absence of proof of possession of potassium cyanide by the accused was practically of no effect. On the facts as found by the High Court it must be held that the second of the three facts which have to be proved, in case of poisoning based on circumstantial evidence had not been proved, namely that the accused was in possession of the poison that had been found in the body ............. Can it be said in these circumstances when the proof of a very vital fact, namely, that the accused was in possession of potassium cyanide, has failed that the chain of circumstantial evidence is so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and that the evidence which remains after the rejection of this fact is such as to snow that within all human probability the act must have been done by the accused.\n168. We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open -\n(1) that it may be a case of suicide, or\n(2) that it may be a case of murder and both are equally probable, hence the prosecution case stands disproved.\n169. We now proceed to deal with some of the judgments of this Court on which great reliance has been placed by the High Court. In the first place, the High Court relied on the case of Pershadi v. State of Uttar Pradesh 1956 Indlaw SC 120. This case appears to be clearly distinguishable because no point of law was involved therein and on the facts proved and the very extraordinary conduct of the accused, the Court held that the circumstantial evidence was consistent only with the guilt of the accused and inconsistent with any other rational explanation. Indeed, if this would have been our finding in this particular case, there could be no question that the conviction of the accused would have been upheld.\n170. The next case on which the High Court placed great reliance is Lagu's case1959 Indlaw SC 124 (supra). This case also does not appear to be of any assistance to the prosecution. In the first place, the case was decided on the peculiar facts of that case. Secondly, even though the corpus delicti was not held to be proved yet the medical evidence and the conduct of the accused unerringly pointed to the inescapable conclusion that the death of the deceased was as a result of administration of poison and that the accused was the person who administered the same. This, however, is not the case here. On the other hand, we have held that the conduct of the appellant has not been proved to be inconsistent with his guilt and on this ground alone the present case can be easily distinguished. If at all it is an authority, it is on the point that this Court is not required to enter into an elaborate examination of the evidence unless there are very special circumstances to justify the same. As this Court in that case was clearly of the view that the High Court had fully considered the facts and a multitude of circumstances against the accused remained unexplained, the presumption of innocence was destroyed and the High Court was therefore right in affirming the conviction. Of course, Sarkar, J. gave a judgment. From a detailed scrutiny of the decision cited above (Lagu's case) we find that there is nothing in common between the peculiar facts of that case and the present one. Hence, this authority is also of no assistance to the prosecution.\n171. Reliance was then placed on the case of Ram Dass v. State of Maharashtra 1977 Indlaw SC 362, but we are unable to see how this decision helps the prosecution. The High Court relied on the fact that as the accused had taken the deceased immediately to the Civil Hospital in older to stop the poison from spreading, this particular fact was eloquent enough to speak for the innocence of the accused. A careful, perusal of that decision shows that this Court did not accept the prosecution case despite circumstances appearing in that case which are almost similar to those found in the present one. Moreover, here also the accused had immediately sent for their family Doctor after they had detected that Manju was dead. The reason for a little delay in lodging the FIR has already been explained by us while dealing with the facts. In the decision cited above, it was clearly held that the case against the accused was not proved conclusively and unerringly and that two reasonable views were possible, the relevant portion of which may be extracted thus:\n\"On a consideration of the evidence and the circumstances referred to above, we are satisfied that this is a case in which the circumstantial evidence did not prove the case against the accused conclusively and unerringly, and at any rate two reasonable views were possible.\"\n172. We have already found in the instant case that taking the prosecution at the highest the utmost that can be said is that two views-one in favour of the accused and the other against him - were possible. Ram Dass's case also therefore supports the appellant rather than the prosecution.\n173. The last case relied upon by the High Court is Shankarlal's case 1980 Indlaw SC 47 (supra) but we are unable to see how tins case helps the prosecution. The observations on which the High Court has relied upon appears to have been torn from the context, On the other hand, this decision fully supports the case of the appellant that falsity of defence cannot take the place of proof of facts which the prosecution has to establish in older to succeed. This decision has already been dealt with by us while considering the merits of the present case and it is sot necessary to repeat the same.\n174. These are the only important cases of this Court on which the High Court seeks to rely and which, on a close examination, do not appear to be either relevant or helpful to the prosecution case in any way. On the other hand, some of the observations made in these cases support the accused rather than the prosecution.\n175. This now brings us to the fag end of our judgment. After a detailed discussion of the evidence, the circumstances of the case and interpretation of the decisions of this Court the legal and factual position may be summarised thus:\n(1) That the five golden principles enunciated by this Court in Hanumant's decision 1952 Indlaw SC 89 (supra) have not been satisfied in the instant case. As a logical corollary, it fellows that it cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused bad committed the murder of Manju. In other words, the prosecution has not fulfilled the essential, requirements of a criminal case which rests purely on circumstantial evidence.\n(2) That, at any rate, the evidence clearly shows that two views are possible-one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered the poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated, Hence, on this ground alone the appellant is entitled to the benefit of doubt resulting in his acquittal.\n(3) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison, i.e., possession of poison with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fail.(4) That in appreciating the evidence, the High Court has clearly misdirected itself on many points, as pointed out by us, and has thus committed a gross error of law.\n(5) That the High Court has relied upon decisions of this Court which are either inapplicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable.\n(6) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be re-enforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error of law.\n(7) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and in view of our findings it is absolutely clear that the High Court has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits.\n(8) We entirely agree with the High Court that it is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (P.W. 33) which shows that poison was forcibly ad ministered by the process of mechanical suffocation.\n(9) We also agree with the High Court that there is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arrayed as accused but they had to be acquitted by the High Court, for lack of legal evidence.\n(10) That in view of our finding that two views are clearly possible in the present case, the question of defence being false does not arise and the argument of the High Court that the defence is false does survive.\n176. This was a fit case in which High Court should have given at least benefit of doubt to the appellant.\n177. Normally, this Court does not interfere with the concurrent findings of fact of the Courts below, in the absence of very special circumstances or gross errors of law committed by the High Court But where the High Court ignores or overlooks the crying circumstances and proved facts, violates and misapplies the well established principles of criminal jurisprudence of decisions rendered by this Court on appreciation of circumstantial evidence and refuses to give benefit of doubt to the accused despite facts apparent on the face of the record or on its own findings or tries to gloss over them without giving any reasonable explanation or commits errors of law apparent on the face of the record which results in serious and substantial miscarriage of justice to the accused, it is the duty of this Court to step in and correct the legally erroneous decision of the High Court.\n178. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any Court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction, however strong or genuine, cannot amount to a legal conviction supportable in law.\n179. It must be recalled that the well established rule of criminal justice is that 'fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and meticulous approach was necessary to be made.\n180. Manju (from the evidence on the record) appears to be not only a highly sensitive woman who expected whole-hearted love and affection from her husband but having been thoroughly disappointed out of sheer disgust, frustration and depression she may have chosen to end her life at least this possibility is clearly gleaned from her letters and mental attitude. She may have been fully justified in entertaining an expectation that after marriage her husband would look after her with affection and regard. This is clearly spelt out in the letters where she hinted that her husband was so busy that be found no time for her. A bard fact of life, which cannot be denied, if that some people to view of their occupation or profession find very little time to devote to their family. Speaking in a light vein, lawyers, professors, Doctors and perhaps Judges fall within this category and to them Manju's case should be an eye-opener.\n181. For the reasons given above we bold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. We, therefore, allow the appeal, set wide the judgments of the Courts below and acquit the appellant, Sharad Birdichand Sarda, of the charges framed against him and direct him to be released and set at liberty forthwith.\nA. Varadarajan, J.\n182. This appeal by special leave is directed against the judgment of a Division Bench of the Bombay High Court in Criminal Appeal No. 265 of 1983 and Confirmation Case No. 3 of 1983, dismissing the appeal and confirming the sentence of death awarded to the first accused Sharad Birdhichand Sarda (hereinafter referred to as the 'appellant') by the Additional Sessions Judge, Pune in Sessions Case No. 203 of 1982. The appellant, Rameshwar Birdhichand Sarda and Ramvilas Rambagas Sarda were accused 1, 2 and 3 respectively in the Sessions Case.\n183. The appellant and the second accused are the sons of one Birdhichand of Pune whose family has a cloth business. In addition, the appellant who is said to be a graduate in Chemical Engineering had started a chemical factory at Bhosari, a suburb of Pune. The third accused is uncle of the the appellant and the second accused. The appellant is the husband of Manjushree alias Manju while the second accused is the husband of Anuradha (P.W. 35). Birdhichand's family has its residential house at Ravivar Peth in Pune and owns a flat in a building known as Takshasheela Apartments in Mukund Nagar area of Pune.\n184. Manju, the alleged victim in this case, was the eldest amongst the five children of Rameshwar (P.W. 2) and Parwati (P.W. 20). Anju (P.W. 6) is the second daughter of P.W. 2 who is a Commercial Tax and Income-tax Consultant since 1960. P.W. 2 is living in his own house situate in Subash Road in Beed city since 1973, prior to which he was living in a rented house in Karimpura Peth in that city. Meena (P.W. 5) is a school and college mate and friend of Manju who passed the B.Sc. examination in Chemistry in the First Class in 1980 while P.W. 5 who had passed the 10th standard examination together with Manju was still studying in college. Rekha (P.W. 3) whom Manju used to call as Vahini is another friend of Manju. She is living with her husband Dr. Dilip Dalvi in a portion of P.W. 2's house in Subash Road, Pune as his tenant. P.W. 20's elder brother Dhanraj Rathi (P.W. 22) is a resident of Pune where he is doing business in the sale of plastic bags for the manufacture of which be has a plastic factory called Deepak Plastics at Beed. It is a partnership concern, of P.W. 20 and some others including P.W. 22's third son Shrigopal. Deepak is one of the two sons of P.Ws. 2 and 20\n185. After Manju passed her B.Sc. degree examination in 1980 her marriage with the appellant was settled by a formal betrothal ceremony which took place in June 1981. The marriage of the appellant and Manju was performed at the expense of P.W. 2 at Beed on 11-2-1982. The appellant and Manju left for Pune on 12-2-1982 after the marriage. Subsequently, P.W. 2 sent his elder son Deepak for fetching Manju from the appellant's house at Pune and they accordingly came back to Beed on 22-2-1982. The appellant went to Beed four or five days later and took Manju back to Pune on the next day after pleading his inability to stay in P.W. 2's house for some more days. This was Manju's first visit to her parents' house after her marriage with the appellant. She is said to have been very happy during that visit. Thereafter Manju came to her parents' house along with her maternal uncle Dhanraj Rathi (P.W. 22) on or about 2-4-1982. It is the case of the prosecution that during that visit Manju was uneasy and had generally complained against the appellant to P.Ws. 3 and 6. P.W. 2 planned to keep Manju in his house for about three weeks on that occasion. But news of the death of the appellant's grandfather was received in P.W. 2's house in Beed and, therefore, P.Ws. 2 and 20 and Manju went to Pune for condolences on 11-4-1982. After meeting the appellant's father and others at Pune, P.Ws. 2 and 20 returned to Beed leaving Manju in the appellant's house in Pune. That was the second visit of Manju to her parents' house after marriage with the appellant. P.Ws. 2 and 29 came to Pune again on or about 13-5-1962. After staying for some time as usual in the house of P.W. 22, P.Ws. 2 and 20 visited the house of Birdhichand on that occasion.\nIt is the case of the prosecution that P.Ws. 2 and 20 found Manju disturbed and uneasy and that they, therefore, took her to the house of P.W. 22 with the permission of Birdnishand. It is also the case of the prosecution that on reaching P.W. 22's house Manju completely broke down and started weeping in the arms of P.W. 20. P.Ws. 2 and 20 returned to Beed from Pune and sent their second son Pardeep four or five days later to fetch Manju, who had, however, by then gone with the appellant to Tirupati in Andhra Pradesh. After learning that the appellant and Manju had returned to Pune, P.W. 2 sent his son Deepek to fetch Manju to Beed. Accordingly Deepak brought Manju to Beed accompanied by the third accused daughter Kavita on 25-05-1982. This was Manju's third and last visit to her parents' house after her marriage with the appellant. It is the case of the prosecution that Manju was totally disturbed and frightened during that visit and that she complained to her mother P.W. 20 against the appellant and she in turn conveyed to P.W. 2 what she heard from Manju. Birdhichand went to Beed on 2-6-1982 without any prior intimation for taking Manju to Pune on the ground that Manju's presence in his family house at Pune was necessary for the betrothal ceremony of his daughter Shobha fixed for 13-6-1982 as well as for her marriage fixed for 30-6-1982. It is the case of the prosecution that when Manju came to know that her father-in-law Birdhichand had come for taking her to Pune she wept and expressed her unwillingness to go to Pune and that, however, on the assurance of Birdhichand that he would see to it that nothing happened to the life of Manju, P.W. 2 permitted Manju to go to Pune along with Birdhichand and she accordingly went to Pune on 3-6-1982 along with Kavita and Birdhichand.\n186. The family of Birdhichand and his sons including the appellant is joint. As stated earlier they have their family's residential house at Ravivar Peth, Pune besides the flat which they owned in the Takshasheela Apartments situate at some distance from their family house. Their flat has two bed-rooms besides a hall and other portions. Birdhichand's two married sons, the appellant and the second accused used to go to the family's flat in the Takshasheela Apartments for sleeping during the nights. The appellant and Manju used to sleep in one of the two bed-rooms while the second accused and his wife Anuradha (P.W. 35) and their children used to sleep in the other bed-room.\n187. Manju had written amongst under three letters, Ex. 33 dated 25-4-1982 to her friend Vahini (P.W. 3) and Ex. P-30 dated 8-5-1982 and P-32 dated 8-6-1932 to her younger sister Anju (P.W. 6). In Ex. 33 Manju has stated inter alia that she was feeling lonely though all persons in Pune were very good and everybody was loving and that one reason is that there are many elderly persons in the house and, therefore she does not dare to do any work independently and her fear which is in her mind every time leads to confusion. She has also stated in that letter that she becomes angry if he (appellant) does not speak to her when she goes and talks to him oven ten times and that till now this man (appellant) had no time to mind his wife. She has stated in that letter that she dare not ask him (appellant) whether his clothes be taken for washing and that at present her status is only that of an unpaid maid-servant. She has finally stated in that letter that on the day on which self-pride in the appellant is reduced no other person will be more fortunate than she but it is not certain whether she will be alive until that date. In Ex. 30 she has stated inter alia that she was undergoing a very difficult test and was unable to achieve her object, that it would be well and good only if she controls herself and that some other way will have to be evolved when that becomes impossible. In Ex. 32 she has stated that though she was happy at Pune she does not know why there is such a dirty atmosphere in the house and it is felt every moment that something will happen. She has also stated in that letter that no work had been started in the house though Sobha's 'sari' function is fixed for 13-6-1982 and, therefore, she is out of her mind.\n188. The case of the prosecution as regards the alleged occurrence during the night of 11/12-6-1982 is thus : On 11-6-1982 at about 10.30 p.m. Manju accompanied by Anuradha, (P.W. 35) and three children of the latter came to the Takshasheela Apartments by an auto-rickshaw. The night-watchman of the Takshasheela Apartments, Kerba (P.W. 28) has deposed about this fact. Syed Mohideen, (P.W. 7) an auto-rickshaw driver residing in the border of Ganesh Peth and Ravivar Peth in Pune claims to have taken two ladies, three children and a baby by his auto-rickshaw at about 11 p.m. on that day to Mukund Nagar. He has identified the photo of Manju published in a newspaper two or three days later as that of one of the two ladies who travelled by his auto-rickshaw as aforesaid. The second accused had already gone to the flat in the Takshasheela Apartments. The appellant reached the flat about 15 minutes later by a scooter, when the night-watchman (P.W. 28) remarked that he was coming rather late he told P.W. 28 that it was because he had a meeting. After the appellant reached the flat he and Manju retired to their bed-room while the second accused and P.W. 35 retired to theirs.\nThereafter the appellant came out of his bed-room at about 2 a.m. on 12-6-1982 and went to the second accused and both of them, went out of that flat by scooters soon afterwards. The appellant proceeded to Ravivar Peth and called his father while the second accused went to call Dr. Uttamchand Lodha, (P.W. 24) who lives about one and a half kilometres away from the Takshasheela Apartments without seeking the help of Dr. Anjali Kelkar, (P.W. 26) and her husband Dr. Shrikant Kelkar (P.W. 27) who lived close by in the same Takshasheela Apartments. P.W. 24 reached the appellant's flat at about 2.30 a.m. and found Manju dead, with rigor mortis having already set in and no external mark showing the cause of death. He, however, opined that it may be a case of unnatural death and suggested that the police may be informed. When Birdhichand who had arrived at the flat by then advised that some other doctor may be called as he was not satisfied with the opinion of P.W. 24, P.W. 24 suggested that Dr. Anil Gandhi, P.W. 25 may be called if so desired. Thereafter, P.W. 24 and the third accused who had come with Birdhichand went to call P.W. 25 who lives about 7 kilometres away from the Takshasheela Apartments. On their way they contacted P.W. 25 over the phone and took him to the appellant's flat where he examined Manju at about 4 a.m. and pronounced that she was dead. He opined that she might have died three or four hours earlier and stated that there was no external evidence showing the cause of death. He too suggested that the police should be informed to avoid any trouble.\n189. The third accused went to Mohan Asava, (P.W. 30) at about 4.30 a.m. on 12-6-1982 and called him to the appellant's flat after informing him that Manju was dead. P.W. 30, who accompanied the third accused, saw the body of Manju in the flat and left the place after suggesting that the police should be informed. The third accused contacted P.W. 30 over the phone at about 6.30 a.m. and asked him to go and inform the police that Manju had died at 5.30 a.m. P.W. 30 accordingly went to Maharishi Nagar Police Station at about 7 or 7.15 a.m. and informed the Head Constable, (P.W. 31) who thereupon made the entry Ex. 120 to the effect that Manju was found to be dead when the appellant tried to wake her up at 5.30 a.m. on 12-5-1982. P.W. 31 proceeded to the appellant's flat at about 8 a.m. after informing the inspector of Police, P.W. 40 telephonically about the suspicious death of Manju.\n190. On receipt of information from P.W. 22 by a lightening telephone call at about 6 a.m. on 12-6-1982 that Manju was extremely serious P.W. 2 went from Beed to Pune along with his wife P.W. 20 and his son Pardeep and Hiralal Sarda (P.W. 4) by jeep at about 1 p.m. on 12-6-1982 and learnt that Manju was dead. Thereafter P.W. 2 went along with Hiralal Sarda to the Sassoon Hospital where Manju's body had been sent by the police for autopsy.\n191. Dr. Kalikrishnan Banerji, (P.W. 33) who conducted autopsy on the body of Manju did not find any external or internal injury He preserved the viscera, small intestines etc. of Manju and reserved his opinion about the cause of her death. On receipt of the Chemical Examiner's report Ex. 130 to the effect that Manju's viscera contained postassium cyanide poison P.W. 33 finally opined that Manju had died due to potassium cyanide poisoning and simultaneous mechanical suffocation. After completing the investigation P.W. 40 filed the charge-sheet against the appellant and the other two accused on 13-9-1982.\n192. The Additional Sessions Judge, Pune tried the appellant for the offence under Section 302, IPC of murder of Manju by administering potassium cyanide poison or by suffocating her or by both all the three accused for the offence under Section 120-B, IPC of conspiring, to destroy the evidence of the murder of Manju by giving a false report to the police about the time of her death and the third accused for the offence u/s. 109 read with Section 201, IPC and Section 201, IPC for instigating P.W. 30 to give false information to the police and giving false information to P.W. 22 regarding the murder of Manju.\n193. The appellant and the other two accused denied the charges framed against them. The appellant denied that he had anything to do with Ujwala (P.W. 37) with whom he is alleged to have been in love at the relevant time. He admitted that Manju and P.W. 35 accompanied by some children went to their flat in the Takshasheela Apartments at about 10.30 p.m. on 11-6-1982 but denied that they travelled by any auto-rickshaw and stated that they went there by their family's car driven by the second accused. He denied that he went to the flat about 15 minutes later and stated that he returned to the flat only at 1.30 or 1.45 a.m. on 12-6-1982 after attending a meeting in the, Rajasthan Youth Club. He stated that after changing his clothes he looked at Manju and found something abnormal and became suspicious and then went to the second accused and that thereafter he went to call his father and uncle while the second accused went to call Dr. Lodha, P.W. 24.\n194. The trial Court found all the three accused guilty as charged and convicted them accordingly and sentenced the appellant to death under Section 302, IPC and all the three accused to rigorous imprisonment for two years and a fine of Rs. 2, 000/- each under Section 120-B, IPC but did not award any sentence u/s. 201 read with Section 120-B.\n195. The appellant and the other two accused filed appeals against their conviction and the sentences awarded to them. The State filed a criminal revision application for enhancement of the sentence awarded to accused 2 and 3. These appeals, confirmation case and criminal revision application were heard together by the Division Bench of the Bombay High Court, which in a lengthy judgment (195 pages of our paper book) allowed the appellant's appeal in part regarding his conviction and sentence under Section 120-B, IPC but confirmed his conviction and sentence of death awarded under Section 302, IPC and allowed the appeal of accused 2 and 3 in full and acquitted them and dismissed the criminal revision application. Hence, the appellant alone has come up before this Court on special leave against his conviction and the sentence of death.\n196. I had the benefit of reading the judgment of my learned brother Fazal Ali, J. I agree with his final conclusion that the appeal should succeed. The learned Judges of the High Court have relied upon 17 circumstances for confirming the conviction and sentence of death awarded to the appellant. My learned brother Fazal Ali, J. has rightly rejected every one of those circumstances as not conclusively pointing to the guilt of the appellant, including the circumstance that the appellant was last seen with Manju before her death on the ground that the case of the prosecution based on the evidence of Dr. Banerji (P W. 33) that there was any mechanical suffocation of Manju has been disbelieved by the High Court itself and that some entries in the carbon copy Ex. 134 of P.W. 33's report sent to the Chemical Examiner bad been scored and interpolated after his report Ex. 132 to the Chemical Examiner had left his hands, that the original entry in the post-mortem certificate Ex. 134 contained the words 'can be a case of suicidal death' and that the explanation of P.W. 33 that he wrote the words 'time of death' twice and not the words 'can be a case of suicidal death' and, therefore, he scored off one of them is not acceptable at all. The Doctors P.Ws. 24 and 25 did not find any external injury on the body of Manju which they saw at about 2.30 and 4.30 a.m. on 12-6-1982. Even P.W. 33 did not find any external or internal injury on the body of Manju.\nIn these circumstances, unless the prosecution excludes the possibility of Manju having committed suicide by consuming potassium cyanide poison, as rightly pointed out by my learned brother Fazal Ali, J., no adverse inference of guilt can be drawn against the appellant from the fact that he was last seen with Manju, he being no other than her own husband who is naturally expected to be with her during nights. Some of these 17 circumstances cannot, by any stretch of imagination, be held to point to the guilt of the appellant. Circumstance No. 6 is an attempt of the appellant's father Birdhichand to get the body of Manju cremated before 7 a.m. on 12-6-1982 by expressing such a desire to P.W. 30. Circumstance No. 9 is arrangement of the dead body of Manju to make it appear that she died a peaceful and natural death. Circumstance No. 11 is absence of an anklet of Manju from her leg. Circumstance No. 12 is the conduct of the appellant in allegedly concealing the anklet in the fold of the chaddar. Circumstance No. 15 is the fact that according to the medical evidence Manju was pregnant by four to six weeks and it would normally dissuade her from committing suicide. With respect to the learned Judges of the High Court, in my view, by no stretch of imagination, can any of these circumstances be considered to point to nothing but the guilt of the appellant in a case resting purely on circumstantial evidence.\n197. However, since I am unable to persuade myself to agree with my learned brother Fazal Ali, J. on four points, I am writing this separate but judgment, giving my view on those points, namely, (1) ill-treatment of Manju by the appellant, (2) intimacy of the appellant with Ujvala (P.W. 37), (3) admissibility of Manju's letters Exts. 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the appellant u/s. 32(1) of the Evidence Act and (4) conduct of Dr. Banerji (P.W. 33) who had conducted autopsy on the body of Manju.\n198. My learned brother Fazal Ali, J. has observed as follows:\n\"On the other hand the plea of the defence was that while there was a strong possibility of Manju having been ill-treated and uncared for by her husband and her in-laws, being a highly sensitive and impressionate woman, she committed suicide out of sheer depression and frustration arising from an emotional upsurge.\"\n\"On the other hand this circumstance may have prompted her to commit suicide, for if a, child was born to her, in view of her ill-treatment by her husband and her in-laws the child may not get proper upbringing.\"\nI do not recollect any admission by Mr. Ram Jethmalani, learned counsel for the appellant in the course of his arguments about any cruelty or ill-treatment to Manju on the part of the appellant or his parents. The evidence of P.W. 3 is that during Manju's second visit to Beed after her marriage with the appellant she found Manju not quite happy and very much afraid of the appellant. The evidence of P.W. 5 is that during Manju's second visit to Beed, Manju complained to her about the appellant returning home late in the night and avoiding to have a talk with her and that Manju told her that she was afraid of the appellant and apprehended danger to her life at his hands. The further evidence of the P.W. 5 is that during her third visit to Beed she inferred from Manju's face a spell of fear.\nThe evidence of P.W. 6 is that during \" Manju's second visit to Beed, Manju told her that the appellant used to leave the house early in the morning and return late at night under the pretext of work in his factory and that he was even reluctant to talk with her. P.W. 6 has stated that during Manju's third, visit to Beed she was extremely uneasy, disturbed and under a spell of fear, that Manju told her that the appellant did not relish even her question as to why he was not prepared to have a simple talk with her, and that during her third visit to Beed, Manju expressed her unwillingness to go to Pune when Birdhichand went to Beed on 2-6-1982 for taking her to Pune. To the same effect is the evidence of P.Ws. 2 and 20 about how Manju looked in spirit and what she stated during her last two visits. My learned brother Fazal Ali, J. has rightly rejected the oral evidence of P.Ws. 2, 3, 5, 6 and 20. He has extracted the relevant portions of the letters Exts. 30, 32 and 33 in his judgment and has observed that one thing which may be conspicuously noticed in Ext. 30 is that Manju was prepared to take all the blame on herself rather than incriminating her husband or his parents; that it was conceded by the learned Additional Solicitor General that the relevant portion of Ext. 32 does not refer to any ill-treatment of Manju by the appellant or his parents; and that it can be easily inferred from Ext. 33 that Manju did not have any serious complaint against the appellant except that she was not getting proper attention which she deserved from him. These three letters do not establish that Manju made any complaint of any ill-treatment by the appellant or his parents.\"\nIn my view, these three letters and the aforesaid oral evidence of P.Ws. 2, 3, 5, 6 and 20 are inadmissible in evidence u/s. 32(1) of the Evidence Act for reasons to be given elsewhere in my judgment. Thus there is no acceptable evidence on record to show that either the appellant or his parents ill-treated Manju. The High Court also has not found any such ill-treatment in its judgment. On the other hand, what has been found by the High Court in its judgment is that the appellant treated Manju contemptuously. Even while setting out the case of the prosecution the High Court has stated in its judgment that it is alleged that the appellant started giving contemptuous treatment to Manju and in that the appellant has denied in his statement recorded under Section 313, Cr.P.C. that Manju was being treated contemptuously. No question has been put to the appellant in the course of his examination under Section 313, Cr.P.C. about any ill-treatment of Manju by the appellant or his parents.\nMy learned brother Fazal Ali, J. has referred on of his judgment to this Court's decisions in Hate Singh Bhagat Singh v. State of Madhya Bharat 1951 Indlaw SC 81, Shamu Babu Chaugale v. State of Maharashtra, and1975 Indlaw SC 464Harijan Megha Jesha v. State of Gujarat 1979 Indlaw SC 439, and has observed of his judgment that circumstances not put to the appellant in his examination under Section 313, Cr.P.C. have to be completely excluded from consideration in view of those decisions. Therefore, since no question has been put to the appellant in this regard in the course of his examination under Section 313, Cr.P.C., even if there is any evidence about any ill-treatment of Manju by the appellant or his parents it has to be completely excluded from consideration. I felt it necessary to say this in my judgment since I think that in fairness to the appellant it has to be done'.\n199. My learned brother Fazal Ali, J. has set out the case of the prosecution in so far as it connects P.W. 37 with the appellant of his judgment where he has stated that the positive case of the prosecution is that the appellant was not at all interested in Manju and had illicit intimacy with P.W. 37. On this point there is the evidence of P.Ws. 3, 5 and 6. The evidence of P.W. 3 is that during her second visit to Beed, Manju informed her that the appellant had a girl-friend by name Ujvala Kothari and that he introduced her (Ujvala Kothari) to her and told her that she should learn from Ujvala Kothari about how she should behave with him. The evidence of P.W. 5 is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl by name Ujvala Kothari and that she had seen Ujvala's letter addressed to the appellant and an incomplete letter of the appellant addressed to that girl. No such letters have been produced in evidence. The evidence of P.W. 6 is that during her second visit to Beed, Manju told her that the appellant had an affair with a girl by name Ujvala Kothari and also introduced that girl to her in the Pearl Hotel saying that she has complete command over him and that she (Manju) should take lessons from her (Ujvala Kothari) about how she should behave with him.\nThere is no other evidence regarding this alleged illicit intimacy between the appellant and P.W. 37. This alleged illicit intimacy is totally denied not only by the appellant but also by P.W. 37. The alleged incident in the Pearl Hotel, according to the case of the prosecution, took place on 17-3-1982. But there is no reference whatever to any such incident in any of the subsequent three letters of Manju, Exts. 30, 32 and 33, dated 25-4-1982, 8-5-1982 and 8-6-1982 respectively. My learned brother Fazal Ali, J. has rightly rejected the oral evidence not only of P.Ws. 3, 5 and 6 but also of P.Ws. 2 and 20 as untrustworthy of his judgment. However, he has stated that it has been proved to some extent that the appellant had some sort of intimacy with Ujvala Kothari and it bad embittered the relationship between the appellant and Manju.\nIn my view, as already stated, the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and/or his family and even her letters Exts. 30, 32 and 33 are inadmissible in evidence u/s. 32(1) of the Evidence Act. Thus, there is absolutely no reliable or admissible evidence on record to show that the appellant had any intimacy with Ujvala (P.W. 37). I am, therefore, unable to share the view of my learned brother Fazal Ali, J. that the prosecution has proved to some extent that the appellant had some sort of intimacy with P.W. 37 and it had embittered the relationship between the appellant and Manju. I think that I am bound to say this in fairness to not only the appellant but also P.W. 37 who, on the date of her examination in the Court, was a 19 years' old student and has stated in her evidence that she had known the appellant only as the President of the Rajasthan Youth Club in the year 1979 when she was a member of that Club for about 5 or 6 months in that year.\n200. My learned brother Fazal Ali, J. has referred to the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about Manju's alleged complaint against the appellant and or his parents and also to the contents of Manju's letters, Exts. 30, 32 and 33. I have mentioned above the gist of that oral evidence and those three letters. My learned brother has held the said oral evidence and those three letters to be admissible u/s. 32(1) of the Evidence Act while rejecting the oral evidence of those five witnesses as untrustworthy, mainly on the ground that the oral evidence is quite inconsistent with the spirit and contents of those letters. He appears to have relied upon those three letters for two purposes, namely, rejecting the oral evidence of those five witnesses as untrustworthy and supporting the defence version that it may be a case of suicidal death. In my opinion the oral evidence of those five witnesses about what Manju is alleged to have told them against the appellant and/or his parents and the three letters, are inadmissible u/s. 32(1) of the Evidence Act, which reads thus:\n\" Statements, written, or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-\n(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.\"\n201. The alleged oral statements of Manju to P.Ws. 2, 3, 5, 6 and 20 are said to have been made during her second and third visits to Beed in the end of February, 1982 and end of May, 1982 respectively before her death during the night of 11/12-6-1982. She had written the letters, Exts. 33, 30 and 32 on 25-4-1982, 8-5-1982 and 8-6-1982 as stated earlier. The oral evidence of these witnesses and these three letters are not as to the cause of Manju's death or as to any of the circumstances of the transaction which resulted in her death during that night. The position of law relating to the admissibility of evidence u/s. 32(1) is well settled. It is, therefore, not necessary to refer in detail to the decisions of this Court or of the Privy Council or our High Courts. It would suffice to extract what the learned authors Woodroffe and Amir Ali have stated in their Law of Evidence, fourteenth edition and Ratanlal and Dhirajlal in their Law of Evidence (1982 reprint). Those propositions are based mostly on decisions of Courts for which reference has been given at the end.\nThey are these : Woodroffe and Amir Ali's Law of Evidence,\n\"Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the test applied to admissible evidence, namely, the oath and cross-examination. But where there are special circumstances Which give a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source.\"\n\"What is relevant and admissible u/cl. (1) of this section (S. 32) is the statement actually made by the deceased as to the cause of his death or of the circumstances of the transaction which resulted in his death.\"\n\"A statement must be as to the cause of the declarant's death or as to any of the circumstances of the transaction which resulted in his death i.e. the cause and circumstances of the death and not previous or subsequent transaction, such independent transactions being excluded as not falling within the principle of necessity on which such evidence is received. When a person is not proved to have died as a result of injuries received in the incident in question, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances which resulted in his death. Where there is nothing to show that the injury to which a statement in the dying declaration relates was the cause of the injured person's death or that the circumstances under which it was received resulted in his death, the statement is not admissible under this clause.\"(AIR 25 Bombay 45 ).\n\"Circumstances of the transaction resulting in his death. This clause refers to two kinds of statements :\n(i) when the statement is made by a person as to the cause of his death, or\n(ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death\".\nThe words 'resulted in his death' do not mean 'caused his death'. The expression 'any of the circumstances of the transaction which resulted in his death' is wider in scope than the expression 'the cause of his death'. The declarant need not actually have been apprehending death. The expression 'circumstances of the transaction' occurring in S. 32, cl. (1) has been a source of perplexity to Courts faced with the question as to what matters are admissible within the meaning of the expression.\nThe decision of their Lordships of the Privy Council in Pakala Narayanaswami v. Emperor, LR 66 IA 66  1939 Indlaw PC 13, sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder ........ But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.\n\"'Circumstances of the transaction' is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in 'circumstantial evidence' which includes the evidence of all relevant factors. It is on the other and narrower than 'resgestae' Circumstances must have some proximate relation to the actual occurrence, though, as for instance, in the case of prolonged poisoning they may be related to dates at a considerable distance from the date of actual fatal dose.\"\n\"The Supreme Court in the case of Shiv Kumar v. State of U.P. 1966 Cri 281 ) has made similar observations that the circumstances must have some proximate relation to the actual occurrence, and that general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly to the occasion of death will not be admissible.\"\n\"The clause does not permit the reception in evidence of all such statements of a dead person as may relate to matters having a bearing howsoever remote on the cause or the circumstances of his death. It is confined to only such statements as relate to matters so closely connected with the events which resulted in his death that may be said to relate to circumstances of the transaction which resulted in his death. (66 Ind App 66) :'Circumstances of the transaction which resulted in his death' means only such facts or series of facts which have a direct or organic relation to death. Hence statement made by the deceased long before the incident of murder is not admissible.\"\nLaw of Evidence by Ratanlal and Dhirajlal.\n\"Circumstances of the transaction; General expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death are not admissible.\"\n\"Circumstances mast have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. The condition of the admissibility of the evidence is that the cause of the declarant's death comes into question. It is not necessary that the statement must be made after the transaction has taken place or that the person making it must be near death or that the 'circumstance' can only include the acts done when and where the death was caused ....... Dying declarations are admissible under this clause.\"\n202. The alleged oral statements of Manju and what she has stated in her letters, Exts. 30, 32 and 33 may relate to matters perhaps having a very remote bearing on the cause or the circumstances of her death. Those circumstances do not have any proximate relation to the actual occurrence resulting in her death due to potassium cyanide poison, though, as for instance in the case of prolonged poisoning they may relate to dates considerably distant from the date of the actual fatal dose. They are general impressions of Manju indicating fear or suspicion, whether of a particular individual or otherwise and not directly related to the occasion of her death. It is not the case of the prosecution that the present case is one of prolonged poisoning. Since it is stated by the learned authors Woodroffe and Amir All in their treatise that the decision of their Lordships of the Privy Council in Pakala Narayanaswami v. Emperor 1939 Indlaw PC 13, sets the limit of the matters that could legitimately be brought within the purview of the expression 'circumstances of the transaction' and that decision is referred to in several other decisions of our Courts, it would be necessary to extract the relevant passage in this judgment. The learned Lords have observed thus:\n\"A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the \"circumstances\" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction : general expression indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, on was not the person accused. Such a statement might indeed be exculpatory of the person accused. \"Circumstances of the transaction\" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in \"circumstantial evidence\" which includes evidence of all relevant facts. It is on the other hand narrower than \"res gestae\". Circumstances must have some proximate relation to the actual occurrence : though, as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose.\"\n203. I am, therefore of the opinion that the oral evidence of these witnesses, P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the appellant and/or his parents and what she has stated in her letters, Exts. 30, 32 and 33, are inadmissible in evidence u/s. 32(1) of the Evidence Act and cannot be looked into for any purpose. At this stage, it may be stated that Mr. Ram Jethmalani, learned counsel for the appellant submitted that the said oral evidence of those five witnesses is inadmissible u/s. 32(1) and that though at first he sought to rely upon the letters, Exts. 30, 32 and 33 which seem to lend support to the defence theory that it may be a case of suicide, he ultimately conceded that what applies to the relative oral evidence of P.Ws. 2, 3. 5, 6 and 20 would equally apply to the letters, Exts. 30, 32 and 33 and that they too would be inadmissible in evidence. The Additional Solicitor General who had strongly relied upon the said oral evidence of these five witnesses and the letters, Exts. 30, 32 and 33 at first proceeded in the end of his arguments on that basis that they are inadmissible in evidence. In these circumstances, I am firmly of the opinion that the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about what Manju is alleged to have told them against the, appellant and/or his parents as well as the letters, Exts. 30, 32 and 33 are inadmissible in evidence u/s. 32(1) of the Evidence Act.\n204. About Dr. Banerji (P.W. 33) who conducted autopsy on the body of Manju what my learned brother Fazal Ali, J. has said in his judgment is thus:\n\"In Column 5 of the post-mortem notes Dr. Banerjee has clearly written 'can be a case of suicidal death' which indicates that in the absence of the report of the Chemical Examiner he was of the opinion that it could have been a case of suicide. In his evidence P.W. 33 has stated that in Ex. 128 in column No. 5 the contents scored out read 'time since the death' and since it was repeated in the next line he scored out the words in the second line. Despite persistent cross-examination the Doctor appears to have struck to his stand. It cannot therefore, be gainsaid that this matter was of vital importance and expected the High Court to have given serious attention to this aspect which goes in favour of the accused ......... In the original while filling up the said column the Doctor appears to have scored out something. The filled up entry appears thus:-\n'mouth is closed with tip (something scored out) seen caught between the teeth'. But in the carbon copy of the report which was sent to the Chemical Examiner (Ex. 132) he has written 'caught between the teeth' in ink; but in the original there is something else. This is fortified by the fact that the copy of the report actually sent to the Chemical Examiner does not contain any interpolation against the said column where the filled up entry reads 'inside mouth' ...... These circumstances show that Dr. Banerjee (P.W. 33) tried to introduce some additional facts regarding the position of the tongue ..... This, however, throws a cloud of doubt on the correctness or otherwise of the actual reports written by him and the one that was sent to the Chemical Examiner. It is obvious that in the carbon copy which was retained by the Doctor the entries must have been made after the copy was sent to the Chemical Examiner.\"\n205. I entirely agree with these findings of my learned brother Fazal Ali, J. But I am unable to share his view that these.\n\"circumstances are not of much consequence because the opinion of the Doctor was that Manju died by forcible administration of potassium cyanide or by the process of mechanical suffocation and that this aspect need not detain the Court any further because the High Court has not accepted the case of mechanical suffocation.\"\nThough a number of comments were made on behalf of the appellant about Dr. Banerji's integrity and incorrect report he does not find any substance in those contentions subject to what he has stated about him.\n206. The fact that the High Court has rejected the case of the prosecution based on Dr. Banerji's report and evidence that it was also a case of mechanical suffocation is not one that could be taken into consideration as a mitigating circumstance in judging the conduct of the Doctor who had conducted the autopsy in a case of suspicious death. The fact that he had reserved his opinion about the cause of death and had then noted in his report that the tongue was inside the mouth but has interpolated the words 'mouth is closed with tip (something scored out) seen caught between the teeth' and 'caught between the teeth' only after receipt of the Chemical Examiner's report to support the view that it was also a case of mechanical suffocation, is not a mitigating circumstance in favour of P.W. 33. The Doctor had scored out the words 'can be a case of suicidal death' and has persisted in his reply that he had scored out only the words 'time since the death' which he claims to have written twice, which explanation has been rightly rejected by my learned brother Fazal Ali, J. The conduct of the Doctor in making these later interpolations and alterations in the records of the postmortem examination in the case of suspicious death in which the appellant has been sentenced to death by the two Courts below, deserves serious condemnation. The Doctor has tampered with material evidence in the case of alleged murder, may be at the instance of somebody else, ignoring the probable consequences of his act.\nIn these circumstances, I am of the opinion that Dr. Banerji (P.W. 33) is a person who should not be entrusted with any serious and responsible work such as conducting autopsy in the public interest. In this case the appellant would have gone to gallows on the basis of the evidence of P.W. 33 as he would have the Court to believe it, and the other evidence, if they had been accepted, but they have been rightly discarded by my learned brother Fazal All, J. as unworthy of acceptance against the appellant.\n207. I agree with my learned brother Fazal Ali, J. that the High Court has dearly misdirected itself on many points in appreciating the evidence and has thus committed a gross error of law.\n208. I feel that something has to be Mated in the judgment in this case about the way the Investigating Officer and the learned Additional Sessions Judge, Pune who had tried the case had gone about their business. Charge No. 3 is against the third accused for instigating Mohan Asava (P.W. 30) to give false information to the police regarding the offence of murder namely, that the appellant found Manju dead when he tried to wake her up at 5.30 a.m. on 12-6-1982. It is the case of the prosecution itself that P.W. 30 informed the police accordingly at 7 or 7.15 a.m. on that day after receipt of telephonic instructions from the third accused at 6.30 a.m. though he had himself seen the dead body of Manju earlier in the appellant's flat where he was taken by the third accused who had gone to his flat at about 4 or 4.15 a.m. and informed him that Manju was dead, and he (P.W. 30) left the appellant's flat a little later at about 5 or 5.15 a.m. after telling Dr. Lodha (P.W. 34) that he was going to report to the police. Thus, it would appear that the case of the prosecution itself is that P.W. 30 is the principal offender as regards giving false information to the police about the death of Manju. Yet the Investigating Officer had not filed any charge-sheet against P.W. 30 but has conveniently treated him as a prosecution Witness. The Additional Sessions Judge, Pune appears to have exercised no control over the evidence that was tendered in this case and to have been oblivious of the scope of the examination of the accused Under Section 313, Cr.P.C. This is reflected by some of the questions put to the appellant. Question No. 24 relates to P.W. 20 not maintaining good health and falling ill now and then. Question No. 25 relates to P.W. 22 being a patient of high blood pressure and having suffered a stroke of paralysis 7 years earlier. Question No. 30 relates to a reception held at Pune on 13-2-1982 in connection with the appellant's marriage with Manju. Question No. 32 relates to P.W. 6 asking the appellant's father Birdhichand for permission to take Manju to Beed with her when the party from P.W. 2's side started from Pune for Beed on 14-2-1982. Question No. 115 relates to P.W. 30 indulging in criminal acts of rowdyism, tax evasion etc. and being known as a contact-man of the police.\nSection 313, Cr.P.C. lays down that in every inquiry or trial for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him the Court may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary and shall, after the witnesses for the prosecution have been examined and before he is called for his defence, question him generally on the case. It is clear that the evidence on the basis of which the above questions have been put to the appellant is wholly irrelevant and that those questions do not relate to any circumstance appearing in the evidence against the appellant. The learned Additional Sessions Judge was bound to exercise control over the evidence being tendered in his Court and to know the scope of the examination of the accused under Section 313, Cr.P.C.\n209. In the end, as I said earlier, I agree with my learned brother Fazal Ali, J. that the appeal has to be allowed. Accordingly I allow the appeal and set aside the conviction and sentence awarded to the appellant and direct him to be set at liberty forthwith.\nSabyasachi Mukharji, J.\n210. I have the advantage of having read the judgments prepared by my learned brothers Fazal Ali, J. and Varadarajan, J. I agree with the order proposed that the appeal should be allowed and the judgments of the Courts below should be set aside and the appellant Sharad Birdhichand Sarda be acquitted of the charges framed against him and he should be released forthwith. I do so with some hesitation and good deal of anxiety, because that would be interfering with the concurrent findings by two Courts below on a pure appreciation of facts. The facts and circumstances have been exhaustively and very minutely detailed in the judgment of my learned brother Fazal Ali, J. Those have also been set out to a certain extent by my brother Varadarajan, J. It will therefore serve no useful purpose to repeat these here. It is necessary, however, for me to make the following observations.\n211. It is a case of circumstantial evidence. It is also undisputed that the deceased died of potassium cyanide on the night of 11th and 12th June. 13th June was the date fixed for the betrothal of the sister of the accused. There is no evidence that the accused was in any way hostile or inimical towards his sister. The deceased had a very sensitive mind and occasionally had suffered from mental depression partly due to the fact of adjusting in a new family and partly due to her peculiar mental make up but mainly perhaps due to the family set up of the accused husband. There is no direct evidence of administering poison. There is no evidence either way that either the deceased or the accused had in her or his possession any potassium cyanide. In these circumstances my learned brothers, in view of the entire evidence and the letters and other circumstances, have come to the conclusion that the guilt of the accused has not been proved beyond all reasonable doubt.\n212. As I have mentioned before, I have read the two judgments by my two learned brothers and on some points namely, four points mentioned in the judgment prepared by my brother Varadarajan, J., he has expressed views different from those expressed by Fazal Ali, J. and these are:\n(1) ill-treatment of Manju by the appellant;\n(2) intimacy of the appellant with Ujwala (P.W. 37);\n(3) admissibility of Manju's letters Exhibits 30, 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the appellant u/s. 32(1) of the Evidence Act; and\n(4) conduct of Dr. Banerji (P.W. 33) who bad conducted autopsy on the body of Manju.\n213. On the three points, namely ill-treatment of Manju by the appellant, intimacy of the appellant with Ujwala (P.W. 37) and the conduct of Dr. Banerji (P.W. 33) who had conducted autopsy on the body of Manju, I would prefer the views expressed by my learned brother Fazal Ali, J. On the question of admissibility of Manju's letters Exs. 30. 32 and 33 and the oral evidence of P.Ws. 2, 3, 5, 6 and 20 about the alleged complaints made by Manju against the accused u/s. 32(1) of the Evidence Act, my learned brother Fazal Ali, J. has observed about S. 32(1) as follows:\n\"The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend on vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible u/s. 32.\"\n214. I would, however, like to state here that this approach should be taken with a great deal with caution and care and though I respectfully agree with Fazal Ali, J. that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut-and-dried formula of universal application, it must be emphasised that whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purposes that for instance where a death takes place within a short time of marriage and the distance of time is not spread over three or four months, the statement would be admissible under S. 32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstances like the circumstances in the present case such statement may be admissible and that too not for proving the positive fact but as an indication of a negative fact, namely raising some doubt about the guilt of the accused as in this case.\n215. For the purpose of expressing my respectful concurrence with the views of Justice Fazal Ali, it is not necessary for me to agree and I do not do so, with all the detailed inferences that my learned brother has chosen to draw in respect of the several matters from the exhibits in this case. I am also with respect not prepared to draw all the inferences that my learned brother has chosen to draw in the paragraph beginning with the expression \"the careful perusal of this letter revealed the following features\". This my learned brother was speaking in respect of Ex. 33. I, however, respectfully agree with my learned brother when he says that a close analysis and reading of the letter namely Ex. 33 clearly indicates:\n(a) that the deceased was extremely depressed.\n216. Similarly I have some hesitation about the English rendering of Ex. 32 (33 ?) which is letter dtd. 8th June, 1982 which has been set out by my learned brother and which has been set out in his judgment which contains the expression \"I do not know why there is such a dirty atmosphere in the house?\" As the original letter was read out in Court and we had the advantage of that, I am inclined to take the view that the correct and the more expressive expression would be \"I do not know why there is such a foul atmosphere in the house?\" Read in that light and in the context of other factors, this letter causes some anxiety. If the deceased was sensing foul atmosphere, why was it ? But this again is only a doubt. It does not prove the guilt of the accused.\n217. In view of the fact that this is a case of circumstantial evidence and further in view of the fact that two views are possible on the evidence on record, one pointing to the guilt of the accused and the other his innocence, the accused is entitled to have the benefit of one which is favourable to him. In that view of the matter I agree with my learned brothers that the guilt of the accused has not been proved beyond all reasonable doubt.\n218. In the premises as indicated before, I agree with the order proposed.\nAppeal allowed\n"}
+{"id": "OZM4OtBJTf", "title": "", "text": "Ram Singh @ Chhaju v State of Himachal Pradesh\nSupreme Court of India\n\n28 January 2010\nCriminal Appeal No. 1248 of 2008\nThe Judgment was delivered by : H. L. Dattu, J.\n1.  This appeal, by the accused, arises out of the judgment of High Court of Himachal Pradesh in Criminal Appeal No. 142 of 1994 dated 20.3.2008, whereby the appellant is convicted for the offence of rape punishable under Section 376 of Indian Penal Code by reversing the judgment of Additional Sessions Judge, Kangra Division in Sessions Case No. 9 of 1992 dated 2.8.1993. The High Court has come to the conclusion that the prosecution has brought home the charge under Section 376 of I.P.C. and has sentenced the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of one year. The accused feeling aggrieved sought special leave to appeal, on the same being granted, this appeal is before us.\n2.  Co-accused Naresh Singh alias Titta died during the pendency of appeal before the High Court.\n3.  We shall state the facts of the case as put forth by the prosecution:- Smt. Chanchala Devi, hereinafter referred to as the \"victim\", is the resident of village Dhabian and, was midwife by profession. Shri Chattar Singh is the husband of Smt. Chanchala Devi. Shri Ashok Kumar (PW-7) is her son. The accused are the residents of village Guriyal, which is situated at a distance of about 2 Kms from village Dhabian. Smt. Chanchala Devi - Victim was present in her house on August 13, 1989. She had gone to bed along with her husband after taking her meal on that day. Her son Ashok Kumar (PW-7) aged about 24 years was present in the house and was sleeping in the courtyard of the house. That night i.e. on the night of 12/13th August, 1989, PW-7 Ashok Kumar woke up his mother Chanchala Devi and told her that Naresh Singh alias Titta (dead) has come to call her as his Bhabi, who was not named by him, has been having labour pains in village Guriyal. The victim went out of the room and saw Naresh Singh alias Titta sitting on the cot of her son in the verandah of the house. The case of the prosecution is that, though the victim refused to the request made by Naresh Singh alias Titta stating that it was not convenient for her as she was having tooth ache, however, after being persuaded by Naresh Singh alias Titta and also by her son PW-7 Ashok Kumar, the victim agreed to accompany Naresh Singh alias Titta to his house situated at village Guriyal. When they had covered a distance of about 30 yards from the house of victim, the appellant Ram Singh alias Chhaju also met them. They all continued walking towards the house of Naresh Singh alias Titta. When they had reached a place known as Tapukar, Naresh Singh alias Titta caught hold of the victim and the appellant Ram Singh alias Chhaju laid her on the ground and opened her trousers. The victim tried to raise alarm, but the Naresh Singh alias Titta dealt a fist blow on her mouth and then gagged it. Both the accused performed sexual intercourse forcibly with the victim and thereafter sneaked away from the place. After returning home, victim had narrated the whole incident to her husband and son. The son of the victim PW-7 Ashok Kumar brought PW-4 Niaz Deen, the Pradhan of the Panchayat on the same night. He was apprised of the incident by the husband of the victim. On his advice, on the following day i.e. on 14.8.1989, the victim being accompanied by her husband reported the matter at police station Nurpur, where her statement was recorded on the basis of which the first information report was registered on 14.8.1989. She was got medically examined at about 12.15 P.M. on the same day. The doctors had opined that victim had been subjected to sexual intercourse 12 to 14 hours prior to her medical examination. The accused were also got medically examined by Dr. Anil Mahajan (PW-3), who had opined that there was nothing suggesting that the accused were incapable of performing sexual intercourse. On completion of the investigation, the final report was filed in the court of Sub- Divisional Magistrate, Nurpur. The case was committed by the learned Magistrate to the Additional Sessions Court, Kangra Division at Dharmashala (Himachal Pradesh) on 6.5.1992, and the same was numbered as Sessions Case No. 9 of 1992. Charges were framed under Section 376 read with Section 34 of Indian Penal Code and put up for trial before the Additional Sessions Judge, Nurpur.\n4.  The accused persons pleaded not guilty to the charge. Their defence was that they have been falsely implicated by the victim on account of animosity.\n5.  In support of its case, the prosecution examined the victim Smt. Chanchala Devi (PW1) who has supported the prosecution version in all its material particulars. Niaz Deen (PW-4) was also examined as a witness of fact, but he was declared hostile and cross examined by State counsel. Dr. S. Mahajan, (PW-2) was examined to prove the medical examination report of the victim. Dr. Anil Mahajan (PW-3) was examined to prove the medical examination report of the accused. Sardar Balwant Singh, (PW-5) was examined to prove the statement of the accused made before the Station House Officer, but, he was declared hostile and cross examined by the State counsel. Ashok Kumar, (PW-7), son of the victim was examined to corroborate the statement of the victim.\n6.  The trial court has found that the prosecution has not been able to prove that the accused persons had sexual intercourse with the victim. Accordingly, has acquitted the appellant herein of the crime.\n7.  The State of Himachal Pradesh had carried the matter by filing Criminal Appeal No. 142 of 1994 under Section 378 of the Code of Criminal Procedure before the High Court of Himachal Pradesh against the decision of the trial court. The High Court has allowed the appeal vide its judgment dated 20.3.2008, by setting aside the judgment and order of the trial court and after hearing the accused while deciding on the quantum of sentence, has convicted the accused under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo rigorous imprisonment for a period of one year which has given rise to this appeal.\n8.  While assailing the judgment of the High Court, the learned counsel for the appellant has contended that the finding of conviction of the High Court is unreasonable and not justified on the material on record. It is not proved by reliable and independent evidence that the incident alleged had taken place. It is also not proved from the medical evidence that rape had been committed by the appellant and the co-accused and there is no corroboration of the evidence of the victim by any independent evidence and the testimony of the victim is not reliable and trustworthy and the conviction on the sole testimony of the victim is not justified.\n9.  Learned counsel for the appellant has laid great stress on the proposition that the testimony of the victim required corroboration and as no independent corroboration was available, the trial court rightly had passed an order of acquittal which should not have been upset by the High Court in an appeal filed by the State.\n10.  The High Court in its judgment has stated that the trial court has erred in appreciating the testimony of the witnesses to the extent the victim has nowhere mentioned in her statement that the appellant Naresh Singh alias Titta (dead) had taken any particular name when he had requested her to accompany him to facilitate the delivery of his Bhabhi. The High Court has also observed that there is no contradiction in the testimony of victim and her son PW-7 Ashok Kumar as both have testified that there was reluctance shown by victim to accompany the appellant Naresh Singh alias Titta (dead) at around 12.00 a.m. at night, to facilitate the delivery of his Bhabhi. The High Court has also observed that the Trial Judge was not justified in coming to the conclusion that Ashok Kumar (PW-7) could not have heard the narration of the incident by the victim to her husband since he was sleeping in the court yard. The High Court has also noticed that the observation of Additional Sessions Judge that the victim did not name the culprits while narrating the incident to PW-4 Niaz Deen Pradhan of village Dhabian contradicts the prosecution case, cannot be held to be correct as the husband of victim in her presence had already told that she was raped by the appellants. Therefore, it is not reasonable to expect from the victim who was under shock due to the incident, to narrate the same to PW-4 Niaz Deen Pradhan in presence her husband and son.\n11.  The High Court has also found it difficult to accept the reasoning of the Trial Court about the fact that there were no injuries on the person of the victim belied her testimony that she was subjected to forcible sexual intercourse. The High Court has observed that the victim was suffering from toothache because of which she was unable to firmly resist, and further she could not raise alarm since her mouth had been gagged by the accused persons. The Court has also observed that though the blow with the fist was given on her mouth by the appellant, it may not have caused any serious injury. However, being an old lady of more than 40 years at the relevant time and the appellants being young men both around 20 years, the victim could not have been put up a strong defence. The High Court has also pointed towards the finding that the spot where the victim was raped, shown in the spot inspection map Ext.PK and which has been proved by the Investigation Officer PW-11 Govardhan Dass, shows that at the site of incident, grass and plants of some crop were found damaged and ruffled. The High Court is also not convinced with the trial court's observation that the victim at the late hours of the night should have been accompanied either by her husband or her son. The High Court observes that there was nothing unusual about victim going alone with the appellants as it is normal practice to go with male members to facilitate the deliveries as the midwives are respected like mothers. Therefore, there was no reason for herself or her husband and son to disbelieve the appellant and deny the request of appellant in that situation. The entire conspectus of the case was viewed by the High Court in vivid detail to come to the conclusion that the appellant was guilty of the crime.\n12.  It was submitted before us by the learned counsel for the appellant that there was no injury on the person of the victim. According to him, if there was sexual assault on the victim, she would have resisted the offender and in that process she would have received some injuries on other parts of the body. Much importance cannot be given to the absence of defence injuries, because it is not inevitable rule that in the absence of defence injuries the prosecution must necessarily fail to establish its case. In the first information report and also in the evidence of PW-1, it has come on record that she could not cry out for help since her mouth was gagged by the accused. It has also come in the evidence that the victim was aged about 40 years and the accused persons were young and aged about 20 years and, therefore, she was not in a position of equal strength so as to resist the appellants. Even in the absence of any injuries on the person of the victim, in our view, with the other evidence on record, the prosecution is able to establish that the offence was committed.\n13.  It was contended by the learned counsel for the appellant that the blood stained clothes which were said to have been handed over to the Officer-in-Charge at the Police Station by the husband of the victim were not sent for chemical examination and, therefore, the corroboration with which such evidence could offer was absent. In our view, the failure of the investigating agency cannot be a ground to discredit the testimony of the victim. The victim had no control over the investigating agency and the negligence, if any, of the investigating officer could not affect the credibility of the statement of PW-1 - the victim. Having regard to the facts and circumstances of this case, we are satisfied that on the basis of the evidence on record, the conviction of the appellant can be sustained.\n14.  It is also submitted that in the absence of any injury on the private parts of the victim, the High Court should have disbelieved the prosecution story. In our view, it is difficult to accept the submission of the learned counsel. The reason being the doctor who has been examined as PW-2 has found that the victim PW-1 was used to sexual intercourse and as such absence of injury on the private parts of the victim may not be very significant. PW-1 was also used to sexual intercourse. The evidence of the victim has been corroborated by the evidence of PWs.2 and 3, the two post occurrence witnesses, as well as by the FIR which was lodged without any delay. Therefore, it is difficult to differ from the findings of the High Court.\n15.  In the present case, the testimony of the victim inspires confidence. Her testimony is not only corroborated by other witnesses but also by the medical evidence. Even if the statement of Niaz Deen, PW-4 is not taken into consideration, the other corroborative evidence in the case is sufficient to connect the accused with the crime.\n16.  Before we conclude, out of sheer deference to learned counsel for the appellant, we intend to notice the feeble submission made by the learned counsel for the appellant. It is contended by the learned counsel that the findings and the conclusion reached by the Sessions Court is one of the possible view in the facts and circumstances of the case and therefore, the High Court ought not to have taken a different view and passed an order of conviction against the appellant. In aid of this submission, the learned counsel has invited our attention to the observations made by this Court in the case of Perla Somasekhara Reddy and Ors. Vs. State of A.P. ( 2009) 7 Scale 115 2009 Indlaw SC 760. In our considered view, the submission of the learned counsel has no merit. This Court in the aforesaid case by way of universal application has not stated, that, whenever there is a judgment and order of acquittal by the Sessions Court, the High Court under no circumstances would interfere with the said order even when it comes to the conclusion that the findings and conclusion reached by the trial court is based on mere conjecture and hypothesis and not on the legal evidence. In fact, in the aforesaid decision this Court has taken note of what has been stated by this Court in the case of Chandrappa and Ors. Vs. State of Karnataka (2007) Crl.L.J. 2136 2007 Indlaw SC 121, wherein apart from others, it is stated, that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; the Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law; various expressions, such as, \"substantial and compelling reasons\", \"good and sufficient grounds\", \"very strong circumstances\", \"distorted conclusions\", \"glaring mistakes\", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of \"flourishes of language\" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion; an appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court; and if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\n17.  In the present case, the High Court on re-appreciation of evidence on record has differed with the findings of the Sessions Court on the innocence of the accused and has found him guilty of the charges leveled against him. The High Court after evaluating the manner in which the evidence and other materials on record has been appreciated as well as the conclusions arrived at by the Sessions Court, has come to the conclusion that the findings of the Sessions Court are perverse and has resulted in miscarriage of justice has re-appreciated the evidence and materials on record and has found that the appellant is guilty of the offence alleged. Therefore, in our view, the decision on which reliance has been placed by learned counsel for the appellant would not assist him in any manner whatsoever.\n18.  The result of the aforesaid discussion leads to only one conclusion that the accused committed forcible rape on the victim on the intervening night of 12/13th August, 1989, as alleged by her, and his conviction by the High Court is quite justified being based on evidence on record. It is, therefore, confirmed.\n19.  We, therefore, find no merit in this appeal and the appeal is, accordingly, dismissed.\nAppeal accordingly dismissed\n"}
+{"id": "7nvdE2ODH0", "title": "", "text": "Balbir Singh v State of Punjab\nSupreme Court of India\n\n3 March 2005\nAppeal (Crl.)  713-714 of 2004\nThe Judgment was delivered by : K. G. Balakrishnan, J.\n1.  The Additional Sessions Judge, Bhatinda, tried four accused for the offences punishable under Section 302 read with Section 34 IPC. Initially, the final report filed by the police was against five accused, but one of the accused was discharged. The Sessions Judge acquitted all the four accused. The State of Punjab filed a criminal appeal against the acquittal of the accused persons and the de-facto complainant filed a revision challenging the acquittal. The appeal and the revision were considered by the High Court and the Division Bench found all the four accused guilty of the offences punishable under Section 302 read with Section 34 IPC and each one of them was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, with a default sentence of six months further imprisonment. Aggrieved by the findings of the High Court, A-2 and A-3 have filed Criminal Appeal Nos. 776-777 of 2004 and the fourth accused, Balbir Singh has filed Criminal Appeal Nos. 713-714 of 2004. During the pendency of the appeal before the High Court, the first accused, Gorkha Singh passed away.\n2.  The incident giving rise to these appeals happened on 1.10.1993 at about 9.30 AM. Deceased Tara Singh had purchased an agricultural field in village Kailey Bander from one Gurdial Kaur in 1990 and since then he had been cultivating that land with the help of his sons, PW-2 Badal Singh, Gurdev Singh and Harpal Singh. According to the prosecution, the appellants herein expected to inherit the property owned by Gurdial Kaur on her death and the purchase of the property by Tara Singh was resented to by them and they bore a grudge against him. On the date of the incident, PW-2 Badal Singh and his father deceased Tara Singh were coming back from the field. PW-3 Jaswinder Kaur, the daughter-in-law of deceased Tara Singh was also in the near vicinity. When Tara Singh reached near the field of one Mithu Singh, the four appellants, namely, Sikander Singh, Gora Singh, Gorkha Singh and Balbir Singh emerged from the nearby field and Gora Singh told that Tara Singh must be taught a lesson. Sikander Singh, threw away his 'Sotti' (wooden stick) and caught hold of Tara Singh. The turban of Tara Singh fell down whereupon Gorkha Singh, who was armed with a 'kulhari' (axe) gave a blow on the left side of the head of Tara Singh. Gora Singh, who was armed with an axe, also hit Tara Singh on the right side of his head. Balbir Singh also gave two blows to Tara Singh with a 'Ghope' (pointed rod). PW-2 Badal Singh and PW-3 Jaswinder Kaur cried out, but the appellants continued to give blows to Tara Singh, who fell on the ground and died. PW-2 Badal Singh left PW-3 Jaswinder Kaur near the dead body of his father and went to meet the Sarpanch of village Kailey Bander. The Sarpanch was not available, so PW-2 reported the incident to his brother, Bhag Singh.\n3. He had also met Chowkidar Banta Singh. It may be noticed that Tara Singh was formerly a permanent resident of village Virk Khurd and only after the purchase of the property from Guardial Kaur he had come down and settled near the agricultural field. PW-2 Badal Singh then proceeded to his village Vir Khurd and met Jaswant Singh, the elder brother of his father and along with him he went to the police station and gave the First Information Report.\n4.  The Asstt. Sub-Inspector Bhajan Singh PW-5 took over the investigation and reached the place of incident. He recovered the turban and shoes worn by deceased Tara Singh and some blood- stained soil from the place of incident. He held inquest over the dead body and sent the same for post-mortem examination through the Head Constable. There were as many as thirteen injuries on the body of deceased Tara Singh. PW-1 Dr. Kulbir Singh, who conducted the post-mortem deposed that injury no. 11 was fatal and the two horizontal bruises measuring 15 x 2 cms had corresponding internal injury and the seventh and the eighth ribs of deceased Tara Singh were fractured and the fractured ribs had pierced the lung tissue. According to him, the death was due to hemorrhage and shock.\n5.  During their examination under Section 313 of the Criminal Procedure Code, the accused set up a very curious plea to the effect that they were falsely implicated and that deceased Tara Singh was attacked by two unknown persons and that DW-1 Gurjant Singh was a witness to the incident and the accused examined Gurjant Singh as DW-1. He deposed that while he was sitting in his house, he heard an alarm and when he reached the place, he saw two persons causing injuries to Tara Singh, but he could not identify them. He found Tara Singh dead on the spot and went to inform his relations and he could not meet anyone. He came to know that Tara Singh was formerly a resident of village Virk Khurd and proceeded to Virk Khurd in his car. There he met PW-2 Badal Singh and then they came back to Kailey Bander. PW-2 Badal Singh made consultation with Jaswant Singh and gave the First Information statement to the police.\n6.  The Sessions Judge, of course, did not accept the evidence of DW-1, but he acquitted the accused mainly for the reason that there was inordinate delay in giving the First Information statement to the police by PW-2 and as the witness could not satisfactorily give any explanation, this was taken as a serious lapse on the part of the prosecution. Another reason given by the Sessions Judge was that PW-2 Badal Singh could not have been present at the scene of occurrence as he did not make any attempt to save his father from the assailants. According to the Sessions Judge, had PW-2 been present at the scene of occurrence, he would have certainly intervened to save his father. The Sessions Judge was also of the view that there was no penetrating injury found on the body of the deceased Tara Singh, although according to PW-2, the accused had given a piercing thrust on the body of the deceased Tara Singh with a 'Ghope' and that there were contradictions between the medical evidence and the oral evidence.\n7.  The High Court reversed the findings of the Sessions Judge and held that the delay in giving the F.I.R. was of no consequence as it was satisfactorily explained by PW-2. The High Court was also of the view that PW-2 being a young man could not have intervened in the attack on his father as there were four assailants, who were armed. According to the High Court, the same could not be taken as a factor to disbelieve PW-2. The High Court thus reversed the findings of the Sessions Judge.\n8.  We heard Shri Ranjit Kumar, learned Senior Counsel for the appellants and also the counsel for the State of Punjab. The evidence of PW-2 and PW-3 shows that the accused attacked the deceased with various weapons. The prosecution evidence shows that deceased Tara Singh and his family members were originally the residents of village Virk Khurd. They had purchased the agricultural property in question about three years before the incident and constructed a hutment nearby and started living there. When PW-2 saw the ghastly incident of attack on his father by the assailants, he could not seek the help of anybody from the village Kailey Bander where the incident took place, probably because he had no acquaintance there. He went in search of the Sarpanch of the village but could not meet him and therefore he was constrained to go to his own village Virk Khurd and met his father's elder brother and then went to the police station. It cannot be said that a young person like PW-2 acted in an unreasonable manner. The counsel for the appellants pointed out that two of his brothers were in the nearby field, but PW-2 did not inform them. As stated before, deceased Tara Singh with his family members had come to village Kailey Bander three years before the incident and probably they too may not have any acquaintances. Therefore, it is quite probable that for this reason PW-2 chose to go to the village Sarpanch. The High Court was fully correct in holding that PW-2 cannot be disbelieved for not having intervened in the melee as there were four assailants who were armed with weapons. In our view, the High Court rightly reversed the findings of the Sessions Judge. The contention of the appellants counsel that there were contradictions between the medical evidence and oral evidence also is of not much consequence as the witness could not be in a position to specifically say as to which portion of the weapon was used when there was a sudden attack by a group of persons.\n9.  Coming to the nature of the offence committed by the appellants, there is evidence to the effect that the appellants only wanted to teach a lesson to Tara Singh. They were aggrieved by the fact that deceased Tara Singh had purchased the agricultural land which they expected to get from Gurdial Kaur. Two of the assailants were armed with axes, but they did not use the sharp edge of those weapons and the injuries sustained by deceased Tara Singh would show that there were no deep penetrating injuries. Most of the injuries were of minor nature, having possibly been caused by the blunt edge of the weapon. The doctor, who conducted the post-mortem examination deposed that injury no. 11, namely, two bruises on the back of the deceased Tara Singh fractured two of his ribs. The evidence of PW-2 and PW-3 clearly is to the effect that it was Sikander Singh who caused those injuries, which ultimately proved fatal. Two other injuries were caused by Gorkha Singh, the first accused. Appellants Gora Singh and Balbir Singh are not alleged to have caused any fatal injury to the deceased Tara Singh. Gora Singh, though armed with a 'Kulhari' (axe), used the blunt portion of that axe.\n10. Sikandar Singh was armed with a 'Sotti' (wooden stick). He caught hold of deceased Tara Singh to enable other assailants to cause injury to him and Sikandar Singh himself gave 'Sotti' blows on the back of the deceased which resulted in causing fracture of the ribs and, in turn, piercing of the lung tissues of the deceased Tara Singh. There is no dispute that these injuries were caused on Tara Singh. It is clear that Sikandar Singh dealt the fatal blows which ultimately resulted in the death of the deceased. If the entire prosecution evidence is considered in the background of the so called motive alleged, it is very difficult to discern that these appellants had any common intention to cause the death of the deceased. The 'Sotti' blows dealt on the back of deceased Tara Singh proved fatal causing fracture of ribs which pierced his lung tissues.\n11.  On careful analysis of the prosecution evidence and the role played by each one of the appellants, we are of the view that the evidence does not show that these appellants shared a common intention to cause the death of the deceased. However, appellant Sikandar Singh caused injuries on deceased Tara Singh which proved to be fatal at the end. The act committed by Sikandar Singh would come within the offence punishable under Section 304 Part I IPC as he could be attributed with the knowledge that the injury caused by him is likely to cause death. The grievous injuries caused by other appellants, namely Gora Singh and Balbir Singh, would fall within the mischief of Section 326 IPC.\n12.  In the result, we set aside the conviction and sentence of all the appellants under Section 302 read with Section 34 IPC and alter the conviction of the appellants as follows: Sikandar Singh is found guilty of the offence punishable under Section 304 Part I IPC and he is sentenced to undergo imprisonment for a period of seven years and the other appellants, namely, Gora Singh and Balbir Singh are found guilty of the offence punishable under Section 326 IPC and sentenced to imprisonment for a period of three years.\n13.  The appellants are entitled to set off the period of imprisonment already undergone by them. The appeals are accordingly disposed of.\nAppeal disposed of\n"}
+{"id": "30pNIhsHFk", "title": "", "text": "Hiten P. Dalal v Bratindranath Banerjee\nSupreme Court of India\n\n11 July 2001\nAppeal (Cr.) 688 of 1995\nThe Judgment was delivered by : Ruma Pal, J\n1. The appellant was found guilty of an offence u/s. 138 of the Negotiable Instruments Act, 1881 by the Special Court set up under the Special Court (Trial of Offences relating to Transactions in Securities) Act, 1992 (referred to as, the \"Act\"). The appellant was sentenced to rigorous imprisonment for a term of one year and a fine for a sum of Rs. 1 lakh, in default to undergo further rigorous imprisonment for a term of three months. Aggrieved by the judgment and order of the Special Court, the appellant has preferred this appeal.\n2. In the course of the hearing of the appeal before this Court, learned counsel for the appellant raised a preliminary issue based on the language of sub S. 2 of S. 3 of the Act. It was contended that the jurisdiction of the Special Court was limited to offences committed between 1 April 1991 and on or before 6 June 1992 and the offence alleged having taken place after 6 June 92, the Special Court had no jurisdiction to try it. The Bench then hearing the appeal, recorded in its order dated 7 Sepetember 1999:\n\"... ... ... Prima Facie we are not in agreement with the contention raised by the learned counsel for the appellant on first principles but the learned counsel for the appellant has brought to our notice a judgment of this Court in the case of Minoo Mehta vs. Sharak D. Mehta (1998) 2 SCC 418 1998 Indlaw SC 438. In the aforesaid judgment on facts of that case this question possibly did not arise for consideration but even otherwise Their Lordships have come to the conclusion :\n'Therefore, every offence pertaining to any transaction in securities which is covered by the sweep of the Act, that is if such transaction has taken place between 1 April 1991 and on or before 6 June 1992 would be subjected to the provisions of the Act regarding trial of such an offence.'\nHaving held so in the later part of the said paragraph the Lordships have come to the conclusion:\n'The offence referred to in sub-s. (2) of S. 3 which is within the sweep of S. 7 of the Act must be on offence committed by any person and must have the following two characteristics:\nSuch offence must relate to transactions in securities; and\nSuch offence should be alleged to have been committed between 1April 1991 and on or before 6 June 1992'.\nThis statement of law is contrary to what their Lordships have said in the earlier paragraph as referred to earlier and we are not in agreement with the enunciation made in the second part of above. In this view of the matter, we think it appropriate that this appeal should be placed before a 3-Judge Bench.\"\nThe matter was thereafter placed before this Bench and heard.\n3. The apparently contradictory observations in Minoo Mehta V. Shavak D. Mehta 1998 Indlaw SC 438, need resolution with reference to the provisions of the Act.\nthe Act was promulgated on 6 June 92 to \"provide for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith or incidental thereto.\"\n4. The jurisdiction of the Special Court was specified in S. 7 and was limited to offences referred to in s. 3(2) of theAct. S. 3(2) insofar as it is relevant provides:\n\"....... Any offence relating to transactions in securities after the 1 day of April 1991 and on and before 6th June 1992.....\"\n5. The question is - does the period specified qualify the word \"offence\" or the word \"transactions\" ? If it is the former, the jurisdiction of the Special Court would be, as contended by the appellant, limited to offences committed within the period specified whenever the transactions may have taken place. The respondent has however contended that the period qualifies the word 'transactions' and that this was not only clear from the language of the statutory provisions but also supported by authority.\n6. In our view the respondent's submission is correct and must be accepted. The Statement of Objects and Reasons of theAct gives the background and the focus of thrAct as :\n\"large scale irregularities and malpractices were noticed in transactions in both the Government and other securities, indulged in by some brokers in collusion with the employees of various banks and financial institutions.\"\n7. The preamble to thrAct also makes it clear that the purpose of the enactment was to deal with those particular transactions in securities. In sub-s. (2) of S. 3 the statutory period occurs after the word transaction. If the period were to qualify the word 'offence' the section would have read \"any offence after the 1st day of April and on or before 6 June 1992\" From the language used it is apparent that the period relates to the transaction in securities and that the date of the offence is immaterial. Other sections of theAct also show that the object of Act is those particular transactions which were carried out during a particular period of time. Thus S. 4 of thrthe Act allows the Custodian, under certain circumstances to cancel \"any contract or agreement entered into at any time after the first day of April 1991 and on or before the 6th June of 1992\". The position has been further clarified by Section 9-A(1)(b) (introduced by way of amendment in 1994) which confers on the Special Court all the jurisdiction, powers and authority as were exercisable immediately before the commencement of the amended Act by any civil court in relation to, inter-alia, any matter or claim -\n\"arising out of transactions in securities entered into after the 1st day of April 1991, and on or before the 6th day of June, 1992, in which a person is notified under sub- s. (2) of Sec. 3 is involved as a party, broker, intermediary or in any other manner.\"\n8. In these circumstances the inevitable conclusion is that the ambit of the Special Courts jurisdiction, whether in criminal proceedings or in civil disputes is in respect of the transactions in securities entered into after the 1st day of April 1991 and on or before 6th day of June, 1992. That the period mentioned in S. 3(2) refers to the transactions and not to the offence is a view which found favour with this Court in Harshad Shantilal Mehta V. Custodian and Others 1998 Indlaw SC 732 A Bench of three-Judges of this Court after considering the various sections of theAct held\n\"Therefore, the jurisdiction of the Special Court in civil as well as criminal matters is in respect of transactions during the statutory period of 1 April 1991 to 6 June 1992; and in relation to the properties attached, of a notified person. The entire operation of the said Act, therefore, revolves around the transactions in securities during this statutory period.\"\n9. In our opinion the decision in Mino Mehta V. Shavak D. Mehta 1998 Indlaw SC 438 (supra), does not decide to the contrary. In that case shares had been lodged with the accused by the complainant in December 1991. The accused was to arrange the sale of the shares and to pay the sale proceeds to the complainant. In January, 1992 the accused sold the shares and misappropriated the sale proceeds. Thus the transactions in securities as well as the offence of misappropriation had both taken place during the period specified in S. 3 sub-s. (2). The only issue before the Court was whether the Special Court would have jurisdiction to deal with offences even if the accused was not notified by the Custodian. The learned Judges decided the issue in the affirmative.\nWhile reaching its conclusion, the Court observed:\n\" ................The scheme of Section 7, in the light of the Preamble of theAct and the main purpose for enactment of theAct, appears to be that all criminal proceedings pertaining to prosecutions in connection with the accused involved in transactions in securities during the relevant period will lie before the Special Court and not before ordinary courts as the section starts with a non obstante clause stating that notwithstanding anything contained in any other law, only Special Courts will have exclusive jurisdiction to try such offences.\"\n10. Because the offence and the transactions overlapped, the learned Judges did not make a distinction between the transaction and the offence when they summed up their conclusions by saying :\n\"The offence referred to in, sub-s. (2) of Section 3, which is within the sweep of S. 7 of theAct must be an offence committed by any person and must have the following two characteristics:\nSuch offence should be alleged to have been committed between 1 April 1991 and on or before 6 June 1992.\" The use of the word 'offence' in item 2 was an obvious error because what was meant has been made clear by the Court in the judgment which reads: \"Before parting with this case we may state that the learned Senior Counsel for the appellant also submitted that the offence alleged against the appellant was not relating to any transaction in securities during the relevant time but qua the sale consideration alleged to have been received by the appellant out of the said transaction and for which alleged offence u/s. 409 prosecution is sought to be launched against the appellant. It is difficult to agree with this contention. A conjoint reading of the recitals in the complaint which obviously must be assumed to be true at this stage would show that the accused is alleged to have entered into transaction in securities, namely, the shares during the relevant period and out of the said transaction is alleged to have received sale proceeds which he has not handed over or transmitted to the complainant who claims to be entitled to the said amount. Thus the offence alleged is certainly relating to the transaction in securities as said to have been entered into by the accused during the relevant period.\"\n11. It is clear therefore that the summing up did not correctly reflect the Actual view of the Court. In the present case the four cheques which are the subject matter of the criminal proceedings were admittedly executed by the appellant on 24 December 1991, 26 December 1991, 17 February 1992, and 27 March 1992 i.e. within the statutory period. The cheques were drawn on the Andhra Bank in favour of the Standard Chartered Bank (briefly referred to as 'the Bank') for the sums of Rs.27 Crores, Rs.14.5 Crores, Rs.17 Crores, and Rs.19,95,75,000/- respectively. According to the Bank the cheques were issued for payment of loss suffered by the Bank arising out of transactions in securities entered into by the Bank through or at the instance of the appellant during the statutory period. According to the Bank on 21 May 1992 all four cheques were returned dishonoured by the Andhra Bank with the remark \"Not arranged for\". The Bank served notices on the appellant u/s. 138 of the Negotiable Instruments Act on 31 May 1992 and 1 June 1992 calling upon the appellant to make payment in respect of the four cheques within 15 days from the date of the receipt of the notices. The appellant did not pay. The transactions as alleged being within the statutory period, the Special Court had the jurisdiction to entertain the complaint and the preliminary objection of the appellant is, in the circumstances, rejected.\n12. On the merits of the case also, we do not find any reason to interfere with the decision of the Special Court. In the complaint filed on behalf of the Bank by one Bratindranath Banerjee (the respondent herein), on 14 July 1992, it was alleged that the appellant was acting as a broker in respect of security transactions between the Bank and other banks and financial institutions. According to the complaint the appellant had issued the four cheques in discharge of his liabilities to the Bank. The four cheques were presented to Andhra Bank but were dishonoured. A First Information Report was lodged against the appellant and others. In the written statement filed by the appellant u/s. 247 of the Code of Criminal Procedure it was said that pursuant to an oral information from the Bank's officer that the Bank was working on some new scheme and methods of augmenting its income and request for assistance for the same, the appellant agreed to \"certain formalities and adjustments as and when required\". Pursuant to this arrangement, the appellant had executed and sent several cheques to the bank including the four cheques (Ext. B, C, D & E) which related to certain intended transactions of purchase of security by the appellant from the Standard Chartered Bank. According to the appellant none of these intended transactions actually materialised and as a result the cheques were never to be acted upon or encashed. It was denied that the appellant was liable to make any payment in respect of the four cheques. According to the appellant although the transactions had not taken place and the cheques should have been returned the four cheques were not returned back to the appellant by the Bank through oversight.\n13. It is unnecessary to consider the various preliminary stages of the Trial before the Special Court except to note that charges were framed on 26 August 1992 by the Special Court against the appellant u/s. 138 of the Negotiable Instruments Act, 1881.\n14. That the four cheques were executed by the appellant in favour of the Standard Chartered Bank (hereafter referred to as the Bank), has not been denied nor was it in dispute that the cheques were dishonoured because of insufficient funds in the Appellants' account with the drawee, viz. Andhra Bank. Because of the admitted execution of the four cheques by the appellant, the Bank was entitled to and did in fact rely upon three presumptions in support of its case, namely, under Sections 118, 138 and 139 of the Negotiable Instruments Act. S. 118 provides, inter-alia, that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption which arises u/s. 138 provides more specifically that where any cheque drawn by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawee bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to twice the amount of the cheque, or with both. The nature of the presumption u/s. 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non-payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case.\n15. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank u/s. 139 of the Negotiable Instruments Act. This section provides that \"it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in S. 138 for the discharge, in whole or in part, of any debt or other liability\". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability\n16. Because both Ss. 138 and 139 require that the Court \"shall presume\" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 1957 Indlaw SC 9, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. \"It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused\". Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court \"may presume\" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.\n17. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, \"after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists\" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram vs Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 1961 Indlaw SC 528, this Court held that the presumption of law under S. 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised u/s. 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575 1962 Indlaw SC 82, where this Court reiterated the principle enunciated in State of Madras vs Vaidyanath Iyer (Supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which \"might reasonably be true and which is consistent with the innocence\" of the accused. On the other hand in the case of a mandatory presumption \"the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......\"\n[See also V.D. Jhingan vs. State of Uttar Pradesh AIR 1966 SC 1762 1966 Indlaw SC 347; Sailendranath Bose vs. The State of Bihar AIR 1968 SC 1292 1968 Indlaw SC 41 and Ram Krishna Bedu Rane vs. State of Maharashtra 1973 (1) SCC 366 1972 Indlaw SC 447.]\n18. We will therefore have to consider whether in the case before us, the appellant had supported his defence by any proof sufficient to rebut the presumption drawn against him. At the trial three witnesses were examined in support of the Bank's case. The first was a Mr. Derek Reed (PW 1), the Bank's Group Security Adviser. Mr. Reed deposed that he had come to India with instructions from the Bank to investigate the fraud which appeared to have been perpetrated in Bombay in which several banks including the Bank were involved. In the course of investigation he found the four cheques Ext. B, C, D & E from the desk of an officer of the Bank who has since been dismissed because of his involvement in the fraud.\n19. The Bank's second witness was Mr. S. Gyananavinayagam (PW2).He was the Manager, Operations in Andhra Bank. He deposed that the four cheques were dishonoured on the ground of insufficient funds in the appellant's account. The third witness Mr. Bratindra Nath Banerjee (PW 3) was the Director of the Bank in-charge of the India Task Force set up by the Bank to investigate the fraud. His was the primary evidence relied upon by the Bank. Broadly speaking, Mr. Banerjee deposed that there were two main areas of fraud perpetrated by the appellant. According to him the first fraud committed by the appellant related to large amounts paid by the Bank at the instance of the appellant or through him, for which the Bank had failed to receive any security or valid bank receipts. The second fraud pertained to the Actual purchase and sale of securities at the instance of the appellant and the failure of the appellant to pay the Bank the difference between the contract rate and delivery rate of the securities. He verified the statements pertaining to the transactions between the appellant and the Bank prepared on the basis of the Bank's books of account and other records maintained in the usual course of the business of the Bank. All the statements (Ex. O, P Q and T) were tendered in evidence and marked as exhibits without any objection by the appellant.\n20. The first statement pertained to the period between 8 November 1991 and 18 December 1991 and showed the contract rates, delivery rates, the rates of difference and the amount of difference of securities mentioned. The statement along with the deal slips, cost memos, instruction issued by the Reserve Bank of India and entry in a clearing sheet in respect of four deal slips were marked as Ext. 'O'. Out of Ext. 'O', difference of rates covered by four deal slips had been settled by the appellant by giving a cheque for Rs.15 crores. The balance amount on this account was Rs.45,77,40,250/-. The second statement prepared and vouched for by Mr. Banerjee was Ext. 'P' prepared in connection with transactions between 28 December 1991 and 17 February 1992. The statement was supported by 18 deal slips. The liability of the appellant on this account was claimed to be Rs.56,50,50,000/-. Ext. 'P' was subsequently corrected by Ext. 'T' which gave the figure of appellant's liability for the period covered by Ext. 'P' as Rs.39,50,50,000/-. The third statement was marked as Ext. 'Q'. This gave particulars of the claim for the period 21 February 1992 to 27 March 1992. The appellants liability for this period was claimed to be Rs.30,97,34,135/-. Ext. 'Q' was supported by five deal slips.\n21. All the deal slips which were printed forms and serially numbered showed the contract rate and the delivery rates.. They were prepared by dealers of the Bank. Mr. Banerjee also stated that the use of the abbreviation 'DIR' in the column which required the name of the Broker, referred to the Appellant. The witness also showed that in respect of certain transactions where the contract rate was less than the delivery rate, the appellant was paid by the Bank. In dealing with the appellant's case namely that the cheques had been given for intended deals which had never taken place, Mr. Banerjee said that he had gone through all the deal slips which had been brought with him to the Court and that there was no evidence of any cancellation of any deal between the appellant and the Bank.\n22. In the course of his examination, Mr. Banerjee also gave evidence of payment made by the Bank to the appellant amounting to Rs.1240 crores and of the loss suffered by the Bank on account of the non-furnishing of bank receipts/securities.\n23. Two further witnesses were produced by the Bank. One proved the appellant's account with the Bank and the second proved the Appellant's account with Andhra Bank for the relevant period.\n24. As far as the appellant's defence was concerned, he did not enter the witness box to support his case that the four cheques in particular had been given in respect of any arrangement or in respect of any transactions which did not materialise. The four witnesses called by the Appellant apart from those subpoenaed to produce documents, were Mr. Ramesh Laxman Kamat (DW 1) Mr. S.R. A. Rao (DW 2), Mr. G. D. Bhalla (DW 3) and Mr. G. CKC Talukdar (DW. 4). The Special Court found that the evidence of DW 1 was not credit-worthy and that \"almost all points including inconsequential points and points which could not be denied, (he) prevaricated ....... (and) ...... sought to deny the truth until truth could no longer be denied.\" DW 1 was then a Deputy General Manager of the State Bank of India (referred to as SBI). He had sought to contend that a number of transactions mentioned in the four statements viz. Exs. O, P and Q were ready forward transactions between the Bank and SBI, and did not reflect the sale and purchase of securities. It was a case which he was unable to substantiate with reference to the documents already on record or produced from the custody of the CBI. The documents produced by the witness himself were found by the Special Court to be suspect.\n25. The second witness for the defence, Mr. SRA Rao also sought to establish that one transaction in Ex.O was non- existent or a dummy transaction. The third defence witness,Mr. G.D. Bhalla, Branch Manager of Andhra Bank, proved that the appellant had made payments of several crores to the Bank.\n26. The fourth witness, G.K. Talukdar, a staff officer of the Reserve Bank of India produced a list stipulating contract rates of several securities, in an attempt to show that the contract rates claimed by the Bank were not correct. It was not stated that the list applied to the Bank or that other rates could not be contracted for.\n27. The brunt of the evidence given by the appellant's witnesses was as to the nature of the transactions between the appellant and the Bank. However, not one of the defence witnesses gave any evidence in support of the only defence of the Appellant, namely that the four cheques in question had been given towards intended transactions which did not take place. No one said why the appellant had executed and delivered the particular cheques to the Bank or that the appellant had not given the four cheques to discharge his debts to the Bank. Nor did any defence witness claim that the cheques were given an account of any ready forward transactions. In fact, DW 1 in cross- examination admitted that it was not the practice of a purchasing party to hand over cheques in advance. The appellant alone could have said why he had admittedly executed the four cheques, handed them over to the Bank and never asked for their return. He did not choose to do so.\nAs said by the Special Court :\n\"Thus according to the Accused, the cheques Exs. B and C were delivered on 23 December 1991. This ostensibly was for intended purchases of 2 crores and 1.08 crores Units. According to him the cheque Ex. D was given on 17 February 1992. This ostensibly for intended purchase of 1,22,50,000 Units. The Ex. was allegedly given on 27th March 1992 for intended purchase of 7 crore Units of Can Star and 10 crore Units of Can Premium. Apart from what is stated in the Written Statement there is no evidence or proof in support of this case.\"\n28. The burden was on the appellant to disapprove the presumptions under Ss. 138 and 139 a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the four cheques were given for intended transactions was not the answer given by the Appellant to the notice u/s. 138. Then he had said that the cheques were given to assist the Bank for restructuring (Ex.H). It was necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, in its totality, rendered the existence of the fact presumed, improbable. (Vide Trilok Chand Jain Vs. State of Delhi 1975 (4) SCC 761 1975 Indlaw SC 220 ). The appellant has done neither. In the absence of any such proof the presumptions under Ss. 138 and 139 must prevail.\n29. We may also mention here that in proceedings initiated by the Bank to recover monies from the appellant in connection with the first area of fraud mentioned by B. Banerjee (PW 3), this Court in Standard Chartered Bank vs. Custodian (2000 (6) SCC 427 2000 Indlaw SC 276) upholding the decision of the Special Court, found that the appellant was liable to pay the Bank a sum of Rs.280.00 crores which is several times the amount covered by the four cheques in question. The argument of the Appellant before the Special Court that no offence u/s. 138 had in fact been committed because he could not have paid within the period of 15 days after receipt of the notice even if he wanted to, was rightly rejected. The appellant's submission was based on the fact that he had been notified by the Custodian u/s. 3 of theAct and all his properties had consequently stood attached. But, as observed by the Learned Special Court, the Special Court had before it a number of applications by a number of parties asking for permission to fulfill their obligations under contracts. In some cases the Court had granted them. There was nothing which prevented the Appellant from applying to the Special Court for permission to fulfill his obligations or to pay off his debts under the cheques Exs. B, C, D & E. No attempt had bean make by the Appellant to make any payment towards the dishonoured cheques. The appellant would not have paid even if he could have. This is clear not only from the correspondence, and the appellant's conduct but also from his defence of total denial of liability. The argument was therefore wholly academic.\n30. The Special Court found the appellant's defence improbable and the evidence adduced at his instance flawed and unbelievable. After meticulously scanning both the oral and documentary evidence and ultimately drawing on the presumptions statutorily provided under sections 118, 138 and 139 of the Negotiable Instruments Act, the appellant was found guilty. For the reasons stated earlier, there is no ground for us to decide differently and to differ from the view taken by the Special Court in holding the appellant guilty of the offence with which he was charged. We therefore affirm the conviction and sentence imposed on the appellant by the Special Court and dismiss the appeal with costs assessed at Rs.10,000/-.\nAppeal dismissed.\n"}
+{"id": "8NBQv2WNl7", "title": "", "text": "Kuldeep Singh v Commissioner of Police and Others\nSupreme Court of India\n\n17 December 1998\nC.A. No. 6359-6361/1998\nThe Judgment was delivered by: S. Saghir Ahmad, J.\n1. Leave granted.\n2. The appellant, a constable in the Delhi Police was dismissed, after a regular departmental enquiry, from service, by order dated 03.05.1991, passed by Dy Commissioner of Police, South District, New Delhi, which was upheld in appeal by Addl. Commissioner of Police by his order dated 22.07.1991. The appellant then approached the Central Administrative Tribunal, Principal Bench, New Delhi and the Tribunal, by the impugned judgment dated 28th February, 1997, dismissed the Claim Petition.\n3. A writ Petition filed before the Delhi High Court against this judgment was dismissed on 19.09.1997 as not maintainable as the judgment passed by the Tribunal was given before the date on which the decision of this Court was rendered in L.Chandra Kumar Vs. Union of India & Others, AIR 1997 SC 1125, (1997) 3 SCC 261 1997 Indlaw SC 2816, in which it was held that a writ petition against the order passed by the Tribunal, constituted under the Administrative Tribunal Act, 1985, would be maintainable (prospectively) before a High Court. The Review Application filed against the judgment of the Tribunal was dismissed on 26.05.1997.\nLearned counsel for the appellant has contended that the findings recorded by the Enquiry Officer cannot be sustained as the enquiry itself was held in utter violation of the principles of natural justice. It is also contended that there was no evidence worth the name to sustain the charge framed against the appellant and therefore, the findings are perverse particularly as no reasonable person could have come to these findings on the basis of the evidence brought on record.\n4. Learned counsel appearing on behalf of Union of India has, on the other hand, contended that the enquiry was held in consonance with the principles of natural justice and during the course of the enquiry, full opportunity was given to the appellant to defend himself. As far the evidence is concerned, it is contended that though it is true that none of the complainant was examined but on account of Rule 16(3) of the Delhi Police Rules, 1980, it was not required to produce the complainant in person as the Rule itself contemplated that in the absence of a witness whose presence could not be procured without undue delay, inconvenience or expense, his statement, already made on an earlier occasion, could be placed on record in the departmental enquiry and the matter could be decided on that basis. It was under this Rule that the previous joint statement of the complainants was brought on record without examining any of them. Learned counsel for the respondents contended that the scope of judicial review in disciplinary proceedings is extremely narrow and limited. The court cannot, it is contended, re-examine or re-appraise the evidence and substitute its own conclusion in place of the conclusions arrived at by the Enquiry Officer or the disciplinary authority on that evidence.\n5. It is no doubt true that the High Court u/art. 226 or this Court u/art. 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.\n6. In Nand Kishore vs. State of Bihar, AIR 1978 SC 1277 = (1978) 3 SCC 366 = 1978 (3) SCR 708 1978 Indlaw SC 172, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.\n7. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao. 1964 2 LLJ 150 = AIR 1963 SC 1723 = 1964 (3) SCR 25 1963 Indlaw SC 183, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain, 1969 2 LLJ 377 (SC) = AIR 1969 SC 983 1968 Indlaw SC 209 and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. 1976 Labour & Industrial Cases 4 (SC) = AIR 1976 SC 98 = 1976 (2) SCR 280 = (1976) 1 SCC 518 1975 Indlaw SC 381. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others. AIR 1984 SC 1805 = 1985 (1) SCR 866 = (1984) 4 SCC 635 1984 Indlaw SC 210 , it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.\n8. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of \"guilt\" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.\n9. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with.\n10. In the light of the above principles, let us scrutinise the case in hand.\n11. The charge framed against the appellant in the instant case is as under:-\n\"You, Constable Kuldeep Singh No.2138/SD. are hereby charged that while posted at P.P. Amar Colony on 22.2.1990. You kept illegally Rs.200/out of Rs. 1000/- given by the factory owner, Smt. Meena Mishra running her factory at A-25, Garhi Lajpat Nagar for the payment of her laborers, Shri Radhey Shyam S/O Shri Phool Vash. Shri Rapal Singh S/O Shri Brahma Nand and Shri Shiv Kumar S/O Shri Ganga Ram. All these three laborers had made a complaint that Smt. Meena Mishra had stopped their payment or Rs. 2200/- for three months.\nThe above act your part amounts to grave misconduct and unbecoming of a police officers which renders you, constable Kuldeep Singh No. 2138/SD, liable for punishment u/s 21 of Delhi Police Act, 1978.\nSd/- Shakti Singh\nSHAKTI SINGH\nInspector,\nEnquiry Officer,\nDE Cell, Vigilance, Delhi.\"\n12. The list of witnesses who were proposed to be examined at the domestic enquiry, as set out in the charge-sheet, was:-\n13. The list of documents, indicated in the charge-sheet, was:-\nList of documents.\n1.Copy of report of SHO/Lajpat Nagar, dated 5.3.1990 against Constable Kuldeep Singh No.2138/SD.\n2.Copy of Laborers Statement.\nSO/DE Cell.\"\n14. The charge against the appellant thus was that on 22.2.1990, three laborers namely, Radhey Shyam, Rajpal Singh and Shiv Kumar who were working in the factory of Smt. Meena Mishra at A-25, Garhi, Lajpat Nagar, and had not been paid their salary by the factory owner had approached the appellant who was posted at Police Post, Amar Colony, attached to P.S. Lajpat Nagar, New Delhi, for his help in the matter. The appellant along with the aforesaid laborers went to the factory owner who gave Rs. 1000/- to the appellant for payment to the three laborers but the appellant did not pay the whole of the amount to them and instead gave them only Rs. 800/-, keeping an amount of Rs. 200/- in his own pocket.\n15. In order to prove this charge, the Department examined Inspector D.D. Sharma, SHO, P.S. Lajpat Nagar; and Smt. Meena Mishra. Their statements have been reproduced in copious details in the findings submitted by the Enquiry Officer, a copy of which has been placed on the record. Smt. Meena Mishra stated that the three persons, namely, Rajpal Singh, Radhey Shyam and Shiv Kumar, were working in her factory, to whom she had made payment separately and individually. She stated. that she had paid Rs. 563/- to Rajpal; Rs.211/- to Shiv Kumar and another sum of Rs. 808/- jointly to Radhey Shyam and Rajpal. She stated that she had not paid Rs. 1000/- to Kuldeep Sing (appellant) on 22.2.1990, as she had asked the three laborers to come after a few days and it was then that the whole of the amount described above which was due from her was paid to them.\n16. Inspector D.D. Sharma, who was, at the relevant time. posted as S.H.O. P.S. Lajpat Nagar, New Delhi. stated that he had received a complaint from Radhey Shyam, Rajpal Singh and Shiv Kumar. They were summoned to the Police Post, Amar Colony where the contents of the complaint were verified from them and their statement was recorded. No other witness was examined on behalf of the Department, not even the complainants, Rajpal Singh and Radhey Shyam, though their names were mentioned in the charge-sheet for being examined as witnesses against the appellant.\n17. The appellant examined one of the complainants, namely, Shiv Kumar in defence who supported the appellant that Smt. Meena Mishra had not made any payment on 22.2.1990 but had called him and two other complainants, namely, Radhey Shyam and Rajpal Singh after few days and when they went again to her, she made the full payment.\n18. The appellant also examined constable Shoukat Ali who was posted, at the relevant time, at Police Post Amar Colony. He stated that Radhey Shyam, Shiv Kumar and Rajpal Singh had come to the Police Post to make a complaint against Smt. Meena Mishra that she had not paid them their salary. This constable directed them to meet the Emergency Officer, ASI Bhopal Singh who sent the appellant with them to Smt. Meena Mishra. The appellant came back and informed ASI Bhopal Singh that Smt. Meena Mishra had agreed to pay the amount due from her to these three persons after a few days.\n19. ASI Jagdish Prasad and ASI Bhopal Singh, who were also examined in defence, corroborated the above statement of constable Shoukat Ali.\n20. ASI Bhopal Singh further stated that the appellant was deputed by him to go to Smt. Meena Mishra with the complainants and the the appellant, on his return from the factory, told him that Smt. Meena Mishra had agreed to make payment to the three laborers a few days later. The witness, however, stated that all the three laborers had come to Police Post, Amar Colony of P.S. Lajpat Nagar on 22.2.1990 where their statement was recorded by ASI Jagdish Prasad on the dictation of SHO D.D. Sharma. This statement was placed on the record before the Enquiry Officer. This was the entire evidence produced at the domestic enquiry.\n21. What immediately strikes the mind is that Smt. Meena Mishra, who is alleged to have paid the amount of Rs. 1000/- to the appellant, stated in clear terms as a witness for the Department, that she had not made any payment to the appellant. This payment is not proved in any other manner as none of the three recipients of the above amount, who were the complainants, has been produced at the departmental enquiry, though two of them, namely, Radhey Shyam and Rajpal Singh were proposed to be examined.\n22. Non-production of the complainants is sought to be justified with reference to Rule 16(3) of the Delhi Police Rules, 1980. Rule 18(3) is an under:-\n\"If the accused police officer does not admit the misconduct, the E.O. shall proceed to record evidence in support of the accusation as is available and necessary to support the charge. As far as possible the witnesses shall be examined direct and in the presence of the accused, who shall be given opportunity to take notes of their statements and corssexamine them. The E.O. is empowered, however, to bring on record the earlier statement of any witness whose presence cannot, in the opinion of such officer be procured without undue delay, inconvenience or expense necessary provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a Magistrate and is either signed by the person making it or has been recorded by such officer during an investigation or a judicial enquiry or trial. The statements and documents so brought on record in the departmental proceedings shall also be read out to the accused officer and shall be given an opportunity to take notes, Unsigned statements shall be brought on record only through recording the statements of the officer or Magistrate who had recorded the statement of the witness concerned. The accused shall be bound to answer any questions which the E.O. may deem fit to put to him with a view to elucidating the facts referred to in the statements or documents thus brought on record.\"\n23. This Rule, which lays down the procedure to be followed in the departmental enquiry, itself postulates examination of all the witnesses in the presence of the accused who is also to be given an opportunity to crossexamine them. In case, the presence of any witness cannot be procured without undue delay, inconvenience or expense, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him then also it could be brought or record. The further requirement is that the statement either should have been signed by the person concerned, namely, the person who has made that statement, or it was recorded during an investigation or a judicial enquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the Officer or the Magistrate who had earlier recorded the statement of the witness whose presence could not be procured.\n24. Rule 16(3) is almost akin to Ss. 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition-precedent\" for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(3) cannot be exercised.\n25. Rajpal Singh and Radhey Shyam, who were the original complainants along with Shiv Kumar, were not examined and the Enquiry Officer, regarding their absence, has stated in his report as under:-\n\"The two prosecution witnessess Rajpal Singh and Radhya Shyam have not attended to proceeding.\nThey have not been found residing in their vill. now and it had come to notice that the defaulter has managed their disappearance and has settled them some where in Devli Khanpur and also has arranged their employment but the addresses of those PWs are not known. Such is the act of the defaulter to create his defence and is an attempt to hide his misconduct. Though their complaint Ex. PW-1/A has been exhibited and has been taken on file to ascertain the facts and for natural justice.\"\n26. This will show that the blame for the non-availability of these two witnesses has been laid on the appellant who was already under suspension and it is not understandable as to how and on what basis or on what material, the Enquiry Officer came to the conclusion that the appellant was responsible for their disappearance or had procured employment for them in Devli Khanpur. If it was known to the Enquiry Officer that they were available in Devli Khanpur, was any attempt made to contact them at Devli Khanpur or to bring them to the enquiry proceedings from that place, is not indicated by the Enquiry Officer in his report making it obvious that the factors necessary for the exercise of jurisdiction under Rule 16(3) were not present and it was not open to the Enquiry Officer to have taken recourse to this Rule to bring on record the previous statement of the complainants which allegedly was recorded by Inspector D.D. Sharma. Moreover, the so-called previous statement itself of the complainants appears to be a highly suspicious document for the reason that S.H.O., D.D. Sharma had stated before the Enquiry Officer that he had received a complaint of Radhey Shyam, Rajpal Sing and Shiv Kumar whereupon all the three persons were summoned by him and after verifying the facts from those complainants had recorded their statement which he had dictated to ASI Jagdish Prasad. There were, therefore, two documents:\n(i) The original complaint made by the aforesaid three persons:\n(ii) The statement of these persons, recorded by ASI Jagdish Prasad, at the dictation of S.H.O., D.D. Sharma, after verifying the facts, set out in the complaint, from these persons.\n(1) The original complaint was not placed on the record and it was the statement, recorded by S.H.O., D.D. Sharma, which was produced before the Enquiry Officer. The absence of original complaint, therefore, indicates that there was, in fact, no complaint in existence which further supports the statement of Department's own witness Smt. Meena Mishra that no payment was made by her on 22.02.1990. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Art. 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Art. 311(2) means \"Hearing\" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.\n27. In State of Mysore vs. Shiv Basappa 1963(2) SCR 943 = AIR 1963 SC 375 1962 Indlaw SC 139, the witness was not examined in the presence of the delinquent so far as his examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with.\n28. In Kasoram Cotton Mills Ltd. vs. Gangadhar 1964(2) SCR 809 = AIR 1964 SC 708 1963 Indlaw SC 49 AND State of U.P. vs. Om Prakash Gupta, AIR 1970 SC 679 1969 Indlaw SC 448, the above principles were reiterated and it was laid down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for cross-examination by the delinquent.\n29. Having regard to the law as set out above, and also having regard to the fact that the factors set out in Rule 16(3) of theDelhi Police (F & A) Rules, 1980, did not exist with the result that Rule 16(3) itself could not be invoked, we are of the opinion that the Enquiry Officer was not right in bringing on record the so-called previous statement of witnesses Radhey Shyam and Rajpal Singh.\n30. It will be noticed that there were three complainants but only two, namely, Radhey Shyam and Rajpal Singh were proposed to be examined. Why was not the third complainant, Shiv Kumar, proposed to be examined? The reason becomes obvious from the fact that when he was examined as a Defence witness, he fully supported the appellant by stating that no payment was made by Smt. Meena Mishra on that date. But he was held by the Enquiry Officer to be an impostor on the ground that he had not proved himself to be actual Shiv Kumar. The Enquiry Officer has observed as under:-\n\"DW 1, Sh. Shiv Kumar is a prepared witness and has not proved himself to be actual Shiv Kumar. This DW 1 has denied that he had visited the police station and had never met with SHO. Moreover he has denied to have signed EX PW-A/A. He had not made any complaint to the SHO. His version has been contradicted by ASI Jagdish Prasad, DW-4 the writer of this complaint Ex PW-1/A. Both these defaulter himself. So the statement of DW-1, Shiv Kumar has not been relied upon because he is not actual Shiv Kumar who is a complainant in this case and is a false person who has been produce by the defaulter.\"\n31. The reasons why he has been held to be an impostor or a false person have not been indicated. The finding in this regard is wholly arbitrary and perverse.\n32. The findings recorded by the Enquiry Officer, have also been upheld by the Deputy Commissioner of Police, South District, New Delhi who had passed the order on 3rd of May, 1991 by which the appellant was dismissed from service. The Addl. Commissioner of Police, before whom the appeal was filed by the appellant, also agreed with the findings recorded by the Enquiry Officer as also the Deputy Commissioner and dismissed the appeal on 22.07.1991.\n33. From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs. 1000/- to Rajpal Singh, one of the labourers, on 8th of February, 1990. This document was not mentioned in the chargesheet in which only two documents were proposed to be relied upon against the appellant, namely, copy of the report of S.H.O., Lajpat Nagar dated 5th of March, 1990 against the appellant and the copy of the labourers' statement. This document has, therefore, to be excluded from consideration as it could not have been relied upon or even referred to by the Dy. Commissioner of Police. Moreover, according to the charge framed against the appellant, payment was made on 22.2.90 and not on 08.02.90 as indicated in the voucher and, therefore, voucher, for this reason also, has to be excluded.\n34. To sum up, the charge against the appellant consisted of two components, namely :\n(a) On 22.2.90 Smt. Meena Mishra paid Rs. 1000/- to the appellant for being paid to the three labourers.\n(b) Appellant paid Rs. 800/- to labourers and kept Rs. 200/- with himself.\n35. Smt. Meena Mishra, appearing as a witness for the Department, denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.\n36. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principles of natural justice as also that of \"Reasonable Opportunity\", contemplated by Art. 311(2) of theConstitution. The \"Bias\" in favour of the Department had so badly affected the Enquiry Officer's whole faculty of reasoning that even non-production of the complainants was ascribed to the appellant which squarely was the fault of the Department. Once the Department knew that the labourers were employed somewhere in Devli Khanpur, their presence could have been procured and they could have been produced before the Enquiry Officer to prove the charge framed against the appellant. He has acted so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed \"fix him up\".\n37. For the reasons stated above, the appeals are allowed. The judgment and order dated 28th February, 1997, passed by the Central Administrative Tribunal, is set aside.\n38. The order dated 3rd of May, 1991, passed by Deputy Commissioner of Police by which the appellant was dismissed from service as also the order passed in appeal by Addl. Commissioner of Police are quashed and the respondents are directed to reinstate the appellant with all consequential benefits including all the arrears of pay up-to-date which shall be paid within three months from today. There will, however, be no order as to costs.\nAppeals allowed\n"}
+{"id": "nipuaUkxRF", "title": "", "text": "Krishna Janardhan Bhat v Dattatraya G. Hegde\nSupreme Court of India\n\n11 January 2008\nAppeal (Cr.) 518 of 2006\nThe Judgment was delivered by: S. B. Sinha, J.\n1.  Appellant and one R.G. Bhat were jointly running a business in the name and style of Vinaya Enterprises at Hubli together. Appellant executed a Power of Attorney in his favour.\n2.  Allegedly, he had handed over four blank cheques to the said constituted attorney for meeting the expenses of the business. The counter foil of the cheque books was also allegedly filled in by Shri R.G. Bhat. The cheque bearing No. 044483 was shown to have been a self drawn one for a sum of Rs. 1500/-.\n3.  Disputes and differences having arisen between the appellant and the said R.G. Bhat in connection with running of the said business, the power of attorney granted in his favour was cancelled by the appellant. Disputes and differences between the parties were referred to the Panchayat. In the meeting of the Panchayat held on 02.10.1996, complainant/respondent who is the brother-in-law of the said R.G. Bhat was admittedly present. He participated therein. The result of the said meeting of the Panchayat is not known but it is not in dispute that the appellant herein issued a public notice through his advocate in a local newspaper on 3.10.1996 to the following effect:\n4.  My client Sh. Krishna Janardhana Bhat, Proprietor of Vinaya Enterprises, Tarihal Hubli has given authority to give notice as follows. My client appointed Shri Raghavendra Ganapati Bhat as his power of Attorney Holder on 21.8.1993 to run Vinay Enterprises as agent. He has started misusing the terms and conditions of the Power of Attorney. Hence my client cancelled the Power of Attorney on 21.8.96 by giving notice. If at all anybody deals with him on the Power of Attorney my client is not responsible in future.\n5.  On the premise that the respondent advanced a sum of Rs. 1,50,000/- to the appellant on 14.6.1998 and the latter on his own went to his house on 20.7.1998 to return the loan by an account payee cheque which having been dishonoured when presented; a complaint petition was filed.\n6.  Prior thereto, a notice was sent on 27.8.1998 which was allegedly served on the appellant on 5.9.1998. He on that day itself sent a reply alleging in substance that the complainant had been colluding with R.G. Bhat in regard thereto, stating: Your client D.G. Hegde Goddalamane is husband of sister of my power of attorney holder R.G. Bhat (Proprietor Prasad Enterprises Tarihal Industrial Estate) of Hubli. I do not have any dealing with him as alleged in your letter.Knowing that the power of attorney holder R.G. Bhat has lost faith and having acted illegally and in anticipation of his committing further illegal acts I have legally cancelled my power of attorney and published the notice in a famous Kannada daily Samyukta Karnataka on 3.10.96.\n7. From that date I do not have any relation with him or any of his relatives including your client. Please verify the handwriting and signature on the cheque and advice your client not to do such (illegalities) colluding with his brother-in-law.\n8.  The learned Trial Judge convicted the appellant and sentenced him to undergo imprisonment for six months and further directed payment of compensation for a sum of Rs. 1,50,000/-. An appeal preferred there against was dismissed by the Sessions Judge by a judgment and order dated 28.7.2004.\n9.  The High Court in exercise of its revisional jurisdiction, however, on a revision petition filed by the appellant, partly allowed the same by reducing the substantive sentence to one week.\n10.  The Special Leave Petition was filed by the appellant in person. As it was noticed by a Bench of this Court that some question of law arises for its consideration, Mr. S. Balakrishnan, learned senior counsel was requested to assist the Court.\n11.  Mr. Balakrishnan urged that the learned Trial Judge, the Sessions Court as also the High Court committed a serious illegality insofar as it misread and misapplied the provisions of S. 139 of the Negotiable Instruments Act (for short the Act ). It was contended that the procedural requirements of S. 138 are:\n(i) There is a legally enforceable debt.\n(ii) The drawer of the cheque issued the cheque to satisfy part or whole of the debt.\n(iii) The cheque so issued has been returned due to insufficiency of funds. It was urged that only ingredient No. 2 is a subject matter of presumption under S. 139 of the Act and not the first one. It was argued that except the word of mouth of the complainant nothing has been brought on record to prove the offence as against the appellant.\n12.  Mr. S.N. Bhat, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the appellant has rightly been found guilty of commission of an offence under S. 138 of the Act as bouncing of the cheque issued by him carries a mandatory presumption in terms of S. 139 read with S. 118 (a) of the Act.\n13. It was urged that it is not believable that the appellant despite referring the dispute to the Panchayat and issuing a paper publication on 3.10.1996 would not insist on taking back the cheque book from his erstwhile constituted attorney or would not inform the bank thereabout. Moreover, he having come out with a positive defence, it was for him to prove the same.\n14.  Before we embark upon the factual issue involved herein, we would notice the manner in which the court proceeded to determine the case. The learned Trial Judge framed the following points for its determination:\n(1) Whether the complainant proves the hilt that the accused to discharge earlier debt of Rs.1,50,000/-, has got issued a cheque on 20.7.1998 for Rs.1,50,000/- drawn at Vijay Bank, Tarahal Branch, Hubli?\n(2) If so, whether the said cheque came to be dishonoured as funds insufficient after its presentation and despite of issuance of notice, the accused did not pay the due amount within stipulated time without any cause, thereby Negotiable Instruments Act?\n15.  The learned Trial Judge noticed the contents of the claim petition as also the evidence of PW-1. It also noticed the suggestions given to the said PW-1 by the appellant herein. Upon taking into consideration the same as also the statement of the appellant u/s. 313 of the Code of Criminal Procedure, it posed a question as to whether there was no debt payable by the accused to the complainant and if so, whether the complainant colluding with R.G. Bhat had created the cheque with an intention to cause loss to the appellant.\n16. It, however, without making any further discussion, answered the said question directly on the material brought on record referring to a decision of the Karnataka High Court in S.R. Muralidar v. Ashok G.Y. [ILR 2001 Karnataka 4127] in extenso and opining that his decision in the case is similar to that of the Karnataka High Court, stating:\n\"Considering the proposition of law, in the present case also the accused admitted the signature on Ex.P.1. But, the contention is that his P.A. Holder mis-utilized his signed blank cheques through his relative complainant and the fact of the present case and fact of the decision mentioned by me are similar one and the observation made by the Hon ble High Court in the above decision and principle laid down therein are clearly applicable to the case in hand. Therefore, the defence taken by the accused herein without stepping into the witness-box, is not acceptable one and there is no cogent evidence produced by the accused to prove his special reasons for issuance of the cheque in question\".\n17.  It again referred to a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Others [AIR 1999 SC 3762 1999 Indlaw SC 755] and made almost a similar observation holding that as the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant stating: Here, the accused has not produced any evidence to discard the testimony of PW-1. Therefore, the presumption is to be drawn in favour of the holder of the cheque, who has received it for discharge of liability in view of the decision of the Honble Supreme Court. Yet again, it relied upon a decision of the Karnataka High Court in M/s. Devi Tyres v. Nawab Jan [AIR 2001 Karnataka H.C.R. 2154], wherein it was opined: There is issued that the amount is payable and no criminal court is required to embark upon any enquiry that goes behind the Act of issuance of the cheque. If the drawer contends that there were certain special reasons whereby a cheque was issued and that the cheque was not intended to be encashed or honoured, the onus of establishing this shifts squarely to the accused.\n18.  The complainant s case was, thus, primarily accepted for the reason that the appellant did not step into the witness box.\n19.  The appellate court took an identical stand. It proceeded on the premise that the statement of accused u/s. 313 of the Code of Criminal Procedure regarding misuse of blank cheque by the complainant and filling up Rs. 1,50,000/- instead of Rs. 1500/- is contradictory to his own admission in the reply to the notice issued to him.\n20. On what basis the said opinion was formed is not known. The appellate court refused to enter into the question as to whether the prosecution case is wholly unreliable, as the complainant had not been able to show his source of income so as to enable him to advance a huge loan of Rs. 1,50,000/-, holding: Now as far as the financial ability of the complainant to issue cheque for such huge amount to the accused is not a matter to be considered by the trial court or by me also since issue of Ex.P.1 and its dishonour is proved by the complainant beyond reasonable doubt.\n21.  The High Court in exercise of its revisional jurisdiction although accepted the contention of the appellant that the presumption under S. 139 of the Act extends only to the extent that the holder of the cheque received the cheque for the discharge in whole or in part of any debt or other liability and the same only means that cheque was issued for consideration, but does not extend to the extent that the cheque was issued for the discharge of the debt or liability as pleaded by the accused , opined that the complainant had discharged that onus by adducing his own evidence. Observing that the appellant did not step into the witness box, it was opined that although the relationship between the appellant and Shri R.G. Bhat was strained, there was nothing to show that the relationship between the appellant and the complainant became strained despite the fact that a panchayat meeting was held in regard to the said dispute in 1996. The High Court, however, refused to go into the factual aspect of the matter stating that it was exercising a revisional jurisdiction, stating:\n22. Since the burden of proving that the cheque had been misused is on the accused-petitioner, and there being a concurrent finding of the Trial Court and the Appellant Court with regard to that holding that the petitioner had failed to discharge that burden, I do not find any ground to interfere in the order of the Trial Court and that the Appellate Court, so far as they hold the petitioner guilty of an offence punishable under S. 138 of the Negotiable Instruments Act.\n23.  Before embarking upon the legal issues, we may analyse the deposition of PW-1 Complainant. He was a resident of village Goddalmane. Appellant is a resident of village Kekkar. As he was running an industry at Hubli, he sometimes resided in Hubli also. They were said to be friends. He asked him to give a loan of Rs. 1.5 lakhs in the first week of June, 1998 and the amount was handed over to him on 14th June, 1998. It was allegedly agreed that on the appellant s failure to repay the said loan within one month, 15% interest would be charged. No document was executed; no pronote was executed; no receipt was obtained. Appellant is said to have come to his house suo moto on 20.07.1998 and handed over the cheque which was sent to Varada Grameen Bank for collection whereupon notice had been issued.\n24. Despite the fact that he was aware that a dispute had been raised in regard to the writings in the cheque, the same was not proved. Merely, the cheque was tendered and it was marked as an exhibit. The cheque appears to have been issued as a proprietor of a business concern.Despite the fact that R.G. Bhat was his brother-in-law, he denied that he was running the said business. He also feigned his ignorance as to whether the said industry was being run by R.G. Bhat on the basis of the Power of Attorney executed by the appellant. He, however, accepted that they had been running it together. He also accepted the relationship between him and R.G. Bhat. He knew about the dispute. He accepted that a panchayat meeting was held in regard thereto. Surprisingly, he denied his knowledge in regard to the existence of the power of attorney stating that the same was not made in his presence. He admitted that he was present on 2.10.1996 in the panchayat meeting to resolve the problem arising out of the dispute between R.G. Bhat and the appellant. He accepted that wooden and steel materials were placed in Vinay Enterprises and R.G. Bhat had been running the same type of industry in Tarihal Industrial Estate.\n25.  According to him, he had been running such an industry in the name of Prasad Enterprises even prior to 1996. His acquaintance, according to him, with the appellant was only through his brother-in-law. He did not say that he had friendship with the appellant. There also does not appear to be any business transactions between them. He could not state about the denomination of the notes although according to him he had drawn the amount from the society.\n26. He did not produce any books of accounts or any other proof to show that he got so much money from the bank. He admittedly did not have any written document pertaining to the accused. He accepted that there was no witness to the transaction. He, of course, denied certain suggestions, but the suggestions put to him were required to be considered by the court below in the backdrop of the facts and circumstances of the case.\n27.  The courts below failed to notice that ordinarily in terms of Section 269SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only.\nSection 271D of the Income Tax Act reads as under: 271D. Penalty for failure to comply with the provisions of section 269SS.\n(1) If a person takes or accepts any loan or deposit in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.\n(2) Any penalty imposable under sub-s. (1) shall be imposed by the Joint Commissioner.\n28.  Indisputably, a mandatory presumption is required to be raised in terms of S. 118(b) and S. 139 of the Act. S. 13(1) of the Act defines negotiable instrument to mean a promissory note, bill of exchange or cheque payable either to order or to bearer . S. 138 of the Act has three ingredients, viz.:\n(i) That there is a legally enforceable debt;\n(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre- supposes a legally enforceable debt; and\n(iii) That the cheque so issued had been returned due to insufficiency of funds.\n29. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. S. 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under S. 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.\n30.  The courts below, as noticed here in before, proceeded on the basis that S. 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.\n31.  An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.\n32.  In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35 1999 Indlaw SC 966] interpreting S. 118(a) of the Act, this Court opined: Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under S. 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable.\n33. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument.\n34.  The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under S. 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities . Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.\n35.  A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.\n36.  In M.S. Narayana Menon Alias Mani v. State of Kerala and Another [(2006) 6 SCC 39 2006 Indlaw SC 1308], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant.\n37.  Four cheques, according to the accused, appear to have been drawn on the same day. The counterfoil of the cheque book, according to the appellant, was in the handwriting of R.G. Bhat wherein it was shown that apart from other payments, a sum of Rs. 1500/- was withdrawn on a self- drawn cheque. The courts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G. Bhat.\n38.  Disputes and differences between him and R.G. Bhat stood established by admission of the respondent himself. Similar industry was being run by R.G. Bhat although he was acting as the constituted attorney of the appellant. According to the appellant, R.G. Bhat had cheated him. The counterfoil showed that not more than Rs. 20,000/- had ever been withdrawn from that bank at a time.\n39. The courts were required to draw an inference as to the probability of the complainant s advancing a sum of Rs. 1.5 lakhs on mere asking and that too without keeping any documentary proof. Even there was no witness. The purported story that the appellant would himself come forward to return the amount by a cheque knowing fully well that he did not have any sufficient funds is difficult to believe.\n40.  In K. Prakashan v. P.K. Surenderan [2007 (12) SCALE 96 2007 Indlaw SC 1381], this Court following M.S. Narayana Menon 2006 Indlaw SC 1308 (supra) opined:\nThe Act raises two presumptions; firstly, in regard to the passing of consideration as contained in S. 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in S. 139 discharged in whole or in part any debt or other liability. Presumptions both u/ss. 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in S. 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-'-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.\n41.  It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. In John K. John v. Tom Varghese & Anr. [JT 2007 (13) SC 222 2007 Indlaw SC 1039], this Court held:\nThe High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay installments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under S. 139 of the Act, no exception thereto can be taken.\n42.  Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16 2001 Indlaw SC 19949] wherein this Court held:\n22 Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.\n23 In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man . [See also K.N. Beena v. Muniyappan and Another (2001) 8 SCC 458 2001 Indlaw SC 19809]\n43. We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith.\n44.  But, we may at the same time notice the development of law in this area in some jurisdictions. The presumption of innocence is a human right. [See Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699 2004 Indlaw SC 266, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 2005 Indlaw SC 272 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1 SCC 70 2006 Indlaw SC 766] Art. 6(2) of he European Convention on Human Rights provides : Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law . Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused rights and the interest of the society is required to be taken into consideration.\n45. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under S. 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e,g,. Honest and reasonable mistake of fact. In a recent Article The Presumption of Innocence and Reverse Burdens: A Balancing Duty published in [2007] C.L.J. (March Part) 142 it has been stated:-\n46.  In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment.\n47. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that.\n48.  It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by S. 139 should be delicately balanced. Such balancing acts indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.\n49.  Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon 2006 Indlaw SC 1308 (supra) and later cases, we are of the opinion that the High Court should have entertained the revision application.\n50. For the reasons aforementioned, the appeal is allowed. The judgments of conviction and sentence passed against the appellant are set aside.\nAppeal allowed.\n"}
+{"id": "hF4vTYYojm", "title": "", "text": "Budh Singh and Others v State of Uttar Pradesh\nSupreme Court of India\n\n12  May  2006\nAppeal (crl.) 1123 of 1999\nThe Judgment was delivered by : S. B. Sinha, J.\n1. The Appellants have preferred this appeal being aggrieved by and dissatisfied with the judgment and order dated 01 September 1999 passed by the High Court of Allahabad in Criminal Appeal No. 2079/93, whereby and whereunder the judgment and order dated 13 August 1993 passed by the IVth Additional Sessions Judge, Moradabad in S.T. No. 604/2002 acquitting the Appellants herein for commission of offences under Sections 148, 302 and 307/149 of the Indian Penal Code (\"IPC\", for short) and under Section 27 of the Arms Act, 1959 was reversed convicting them under Sections 148, 307/149 and 302/149 of the Indian Penal Code for intentionally causing death of one Ram Gopal (deceased) and his wife Chatarvati, as also for attempt to commit murder of their son Rajveer Singh (the first informant).\n2. Appellant No. 1-Budh Singh, Appellant No. 2-Prem Singh and Appellant No. 3-Jagan Singh are real brothers. The Appellant No. 4Mahesh Singh is son of Budh Singh whereas Appellant No. 6-Rajendra Singh is son of Prem Singh. Appellant No. 5-Ram Raj is not related to other Appellants, but he is stated to be belonging to the group of the other appellants. The deceased Ram Gopal owned agricultural land towards west side of the village Lalapur Pipalsana. Some lands belonging to the Gram Samaj were situate adjoining the said land.\n3. Appellant No. 1-Budh Singh and one Kanhai were said to have illegally occupied about 40-45 bighas land of the said Gram Samaj.\n4. They allegedly intended to take possession of the land belonging to the deceased on the pretext that the same also belonged to Gram Sabha. The dispute between the parties in regard to the said land had been pending for the long. At about 9.00 p.m. on 12 April 1992, the deceased and his wife Chatarvati were said to be irrigating their sugarcane field with the help of motor pump. It was said to be a moonlit night. A lantern had also been kept hanging from a nearby tree. The Appellants, at that point of time, allegedly came to the agricultural land of the deceased. Appellant No. 1-Budh Singh was said to be armed with double barrel gun, whereas Prem Singh, Jagan Singh and Ram Raj were armed with country made guns and Mahesh and Rajendra Singh were said to be armed with country made pistols.\n5. They stopped running of the motor, as a result whereof there had been exchange of abuses. The appellants allegedly said that the land belonged to Gram Samaj and they would cultivate the same. At that Time, hearing the noise, Chet Ram-P.W. 2, Shiv Singh-P.W. 3, Veer Singh and Sawan Singh allegedly arrived at the place of occurrence. They were allegedly having torches is their hands. The Appellant No. 1-Bugh Singh allegedly fired from his gun upon Ram Gopal, whereas Appellant No.5-Ram Raj fired a shot on the wife of the deceased Chatarvati. Appellant No. 6-Rajendra Singh is said to have fired a shot on Rajveer Singh. Other accused persons also stated to have fired their respective weapons. On receiving injuries on their person, both Ram Gopal and his wife Chatarvati ran a few paces, but fell down dead at some distance. P.W. 1Rajveer Singh, who was, at the material time, about 16 years old, thereafter went to the house of one Hori Singh and scribed a First Information Report (FIR). He, thereafter, went to the Thakurdwara Police Station is a tractor belonging to one Jagraj Ram accompanied by two persons, namely, Chet Ram-P.W. 2 and Veer Singh. The police station was situated, at a distance of about 28 kms. from the place of occurrence. He lodged a First Information Report at about 00.25 hours 13 April 1992. The said FIR was dispatched to the Court at about 6.25 a.m. on 13 April 1992, but the same reached the Court on 18 April 1992. At the police station, one R.A. Singh, Sub-Inspector was present. A wireless message was also allegedly sent at about 1.00 a.m. to P.W. 7-S.P.S. Thomar, S.I. of the police station, who was, at the relevant point of time, posted at the police outpost Suraj Nagar. The said P.W. 7-S.P.S. Thomar reached the place of occurrence. He found the dead bodies lying on the field. He also made an attempt to arrest the accused in the night. In the meantime, P.W. 1, who had also received a gunshot injury, was examined by P.W. 4-Dr. S.K. Verma, the Medical Officer (Incharge) of the Primary Health Centre, Thakurdwara at about 4 a.m. on 13 April 1992. He advised P.W. 1 that an X-ray of the injured part of the body required to be taken. X-ray however, was taken on 18 April 1992 by P.W. 6-Dr. Om Mehrotra, Senior Radiologist, District Hospital, Moradabad, who found an opaque substance which, according to him, was a metallic pellet seen in upper part of right arm of P.W. 1.\n6. P.W. 1 allegedly came back to his village at about 6 a.m. in the morning. The inquest of the dead bodies started at 8 a.m. and concluded at 9.30 in the morning on 13 April 1992. The dead bodies were sent in a tractor for autopsy at about 12-12.30 during the day time by P.W. 5-Constable Chandra Sen. The post-mortem examination of both the dead bodies were, however, not done on 13 April 1992, because no autopsy surgeon was available. The post-mortem of the deceased was carried out by P.W. 9-Dr. Madan Mohan, G.D.M.O., Central Police Hospital, Moradabad on 14 April 1992. The ante-mortem injuries found on the dead bodies are as under.\n\"Injuries found on the dead body of Ram Gopal :\n1. Multiple gunshot wounds entry 0.3 cm x 0.3 cm in front of chest, abdomen above the interior sup. Illiac spine in an area 40 cm x 2 cm. Margins inverted and lacerated. No charring blackening and tattooing present. On opening the left lung and heart, pleura and pericardium underneath are lacerated. Direction posterior and downward.\n2. Gunshot wound 0.3 cm x 0.3 cm entry in front and outer and upper part of right thigh above 12 cm below the ant. Sup. Illiac spine, margin lacerated and inverted. No charring blackening and tattooing present.\n3. Gunshot wound entry 0.3 cm x 0.3 cm in front of left thigh 10 cm below interior, superior illiac spine .....  with margins inverted. No charring blackening present.\"\n\"Injuries found on the dead body of Chatarvati :\n1. Gunshot wound of entry 6 cm x 3 cm on rt. Side chest upper part over clavical medical part x chest cavity deep. Piece of left lung cavity out of no injuries. Margin lacerated inverted. Skin around this wound is charred, blackened and tattooing present. The right clavical 1st rib, rt. and IInd rib, right fractured. Direction from anterior to posterally medially and size 18 metallic pellets, one Cap and two wadding recovered from the right lung and cavity with Abrasion 2 cm x + cm on left side chest below the left clavical middle part.\"\n7. Before the learned Trial Court, P.W. 1-Rajveer Singh, P.W. 2-Chet Ram and P.W.-Shiv Singh were examined as eye-witnesses to the occurrence. Three police personnel being P.W. 5-Constable Chandra Sen, P.W. 7-S.P.S. Tomar and P.W. 8-Constable Shailesh Tyagi were examined to prove the post-mortem report of the deceased as also the injury report of P.W. 1. P.W. 4-Dr. S.K. Verma, P.W. 6-Dr. Om Mehrotra and P.W. 9-Dr. Madan Mohan were examined whereas the radiological report was proved by P.W. 6. The learned Trial Judge, by reason of a judgment and order dated 13.8.1993, acquitted the appellants, inter alia, holding :\n(i) The First Information Report was ante-timed and ante-dated;\n(ii) The exact time of occurrence has not been proved;\n(iii) The injuries on the person of P.W. 1 was doubtful;\n(iv) The evidences of P.W. 2 and P.W. 3, who were chance witnesses, were not reliable;\n(v) The medical evidence does not support the prosecution case.\n8. On an appeal preferred thereagainst by the State, a Division Bench of the High Court, on the other hand, by a judgment and order dated 01 September 1999, reversed the said judgment of the Trial Court.\n9. Mr. Sushil Kumar, learned Senior counsel appearing on behalf of the appellant submitted that the High Court committed a manifest error in interfering with the judgment of the Trial Court without assigning sufficient and cogent reasons therefor. The learned Senior Counsel urged that the prosecution has failed to prove that the injuries suffered by P.W. 1 was a gunshot injury. The learned Counsel also contended that the prosecution failed to prove its case from all angles. In this connection, our attention has been drawn to the fact that if, the medical evidence is taken to be correct, the mode and manner in which the occurrence took place cannot be said to have been proved. It is further submitted that the prosecution has failed to explain as to why the FIR, which is said to have been lodge on 13 April 1992 at about 00.25 hours, was received by the Court of Chief Judicial Magistrate on 18 April 1992. The explanation sought to be given that the said FIR was; not directly sent to the Court, but through the Circle Officer, also does not satisfy the mandatory requirement of the provisions contained in section 157 of the Code of Criminal Procedure (\"Cr.P.C.\", for short). It was furthermore urged that P.W. 5, who had taken the dead bodies for getting the post-mortem examination done, although started at about 12.30 in the noon, failed to prove that as to why the post-mortem examination could not be held till 14 April 1992 and why the doctors were not available. From the post-mortem report, the learned counsel would submit it would appear that the death could have taken place any time between 3. p.m. on 12 April 1992 and 3 pm. on 13 February 1992, as only liquefied substance had been found in the stomach. Even in regard to the time of arrival of P.W. 5 at the District Headquarters, the said explanation has not been entered in the General Diary. He did not even given any statement before the Investigating Officer under Section 161 Cr.P.C. The learned counsel would submit that P.W. 7, who, at the relevant point of time, was not the officer-in-charge of Thakurdwara Police Station, took up the investigation of the case. He, however, investigated the matter only for eight days. The prosecution has not produced any officer who had investigated the case thereafter. It was further submitted that even in the site plan drawn by P.W.7, the place from where the cartridges had been recovered, has not been shown. We have been taken through the deposition of the eye-witnesses. Our attention has particularly, been drawn to the fact that the agricultural lands belonging to P.W. 3 being situated at a distance of half a kilometer from the place of occurrence, there was no reason as to why at the time when the incident took place, they would suddenly come together and witness the entire occurrence. The said witnesses, according to the defence, were related to the deceased. It was further submitted that the prosecution has also failed to explain as to why Veer Singh, who had accompanied P.W. 1 to the Police Station and who had admittedly on inimical terms with the Appellant No. 6, had not been examined. Similarly no explanation has been offered by the prosecution for non-examination of the eye-witnesses.\n10. Mr. Pramod Swarup, learned counsel appearing on behalf of the State, on the other hand, supported the impugned judgment of the High Court. The learned counsel contended that in view of the consistent evidence adduced on behalf of the prosecution, that not only the FIR was lodged at about mid night at 00.25 hours on 13 April 1992, but the same having been dispatched to the Court at 6.24 hours, it was established that the FIR was not ante-timed. Our attention, in this connection, has also been drawn to the fact that in the inquest report, the crime number has been mentioned, which would clearly prove that the FIR has been lodged prior thereto. Under what circumstances it reached to the Court of Chief Judicial Magistrate only on 18 April 1992, according to Mr. Swarup, might not have been explained but only because of the said, the prosecution case cannot be thrown out. The learned counsel further urged that P.W. 1 was medically examined by Dr. S.K. Verma-P.W. 4. He had only found a lacerated wound which was a simple injury and might not have thought it necessary to provide him with any further medical treatment or advised him to take any X-ray on that date itself and thus, the same had been taken on 18 April 1992.As the report had been proved by the Radiologist, Dr. Om Mehrotra-P.W. 6, non-production of X-ray plate, according to the learned counsel, would not be material.\n11. Our attention has been drawn to the evidence of P.W. 9-Dr. Madan Mohan. It was submitted that from a perusal of the post-mortem examination report, it would appear that no undigested food was found in the stomach of the deceased. They had taken their food at 10 a.m. in the morning on 12 April 1992 and only some liquid was found in their stomach which would clearly go to show that they might have taken water or other liquid substance and in that view of the matter, the learned Trial Judge was not correct in doubting the time of death, as disclosed by PWs. 1, 2 and 3.\n12. The Trial Court, as noticed hereinbefore, recorded a judgment of acquittal upon assigning several reasons. Before adverting to the rival contentions of the parties, it will be beneficial to remind ourselves about the established principles of law that the High Court does not ordinarily set aside a judgment of acquittal in case where two views are possible, although, the view of the Appellate Court is a more probable one. It is, however, true that the High Court, while dealing with a judgment of acquittal, is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the Trial Judge is perverse or otherwise bad in law. The Appellate Court shall also be entitled to take into consideration as to whether in arriving at a finding of fact, the Trial Judge has failed to take into consideration admissible evidence and has taken into consideration evidences brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny by the Appellate Court.\n13. In Balak Ram v. State of U.P., [1975] 3 SCC 219 1974 Indlaw SC 121 this Court has held:\n\"The aforesaid discussion of the various items of evidence must at least yield the result that the conclusion to which the learned Sessions Judge came was a reasonable conclusion to come to. It cannot be denied that two views of the evidence are reasonably possible in regard to the participation of Nathoo, Dr. Kohli and Banney Khan. The High Court, therefore, ought not to have interfered with the judgment of the Sessions Court in their favour.\"\n14. In Shambhoo Missir & Anr. v. State of Bihar, [1990] 4 SCC 17 1990 Indlaw SC 348, it was held :\n\"The High Court did not deal with any of these circumstances pointed out by the trial court and has given no reasons to negative them or to show as to how they were either improper, unjustified or unreasonable. We are, therefore, of the view that High Court has interfered with the order of acquittal passed by the trial court not only for no substantial reasons but also by ignoring material infirmities in the prosecution case.\"\n15. Yet again in Shailendra Pratap & Anr. v. State of U.P., [2003] 1 SCC 761 2003 Indlaw SC 8, the law was laid down in the following terms :\n\"Having heard learned counsel appearing on behalf of the parties we are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was a reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity.\"\n16. In Narendra Singh & Anr. v. State of M.P., [2004] 10 SCC 699 2004 Indlaw SC 266, wherein one of us (Sinha, J.) was a partly it was categorically held that the Court must bear in mind the presumption of innocence of the accused in setting the law. The said view has been reiterated in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr., [2005] 5 SCC 294 2005 Indlaw SC 272 in the following terms :\n\"Presumption of innocence is a human right.  Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Subsection (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the Public Prosecutor to oppose an application for release of an accused appears to be reasonable restriction but clause (b) of subsection (4) of Section 21 must be given a proper meaning.\"\n17. The main contention of the appellant is that the FIR is ante-timed. The learned Trial Judge, in his judgment, assigned three reasons in support of his finding that it was so.\n18. It is not in dispute that the written report, although, is said to have been lodged at 00.25 hours on 13.4.192, the same was received in the Court of the Judicial Magistrate as late as on 18 April 1992. The only explanation offered by P.W. 5 was that although the same has been sent at 6.25 in the evening, it could not be sent directly, as in view of the provisions, the same was to be sent through the Circle Officer. The State has not offered any explanation as to why the Circle Officer, a post held by an officer of the rank of Deputy Superintendent of Police, would not act responsibly. Section 157 Cr.P.C. as also Article 21 of the Constitution of India provide for a safeguard in such a manner directing that FIR should be sent to the Court of Chief Judicial Magistrate within a period of 24 hours.\n19. The learned Trial Judge further was of the opinion that the copy of the FIR had not been served upon the complainant P.W 1 forthwith and the signature of the informant had also not been obtained in chik report . There was no reason as to why Rajveer Singh was not sent for medical examination immediately after registration of the case, although the Primary Health Centre was situated nearby the police station. The Trial Judge further noticed that 'chiti mazroobi' had not been sent from the police station to examine the injured. Such a 'chiti mazroobi', according to the learned Trial Judge, would contain not only the details of the accused, but full particulars of the case, as also the injuries appearing on the person of the victim.\n20. The High Court, however, reversed the said findings opining that issuance of 'chiti mazroobi' was not mandatory, particularly, when P.W. 1 was sent for medical examination along with a Head Constable. It was further opined that the Investigating Officer not being present in the police station, there might have been a delay in medical examination by the doctor. The High Court, without any evidence on record, held that the doctor might not be available and he must have gone to his house for taking rest. It was further opined that P.W. 1 being a young man, must have acted in accordance with the directions of the police.\n21. There is some amount of surmises and conjectures in the opinion of the High Court. The Investigation Officer-P.W. 7, although, might not have been present at the police station, but according to the evidence available on records one R.A. Singh was present. The medical examination report of Rajveer Singh bore the date as 04 April 1997. Why such a wrong date was mentioned, has not been explained. P.W. 1 in his cross-examination categorically admitted that he received the chik report in the morning. A suggestion was given to P.W. 5 that when he reached the place of occurrence, the FIR was not in existence. P.W. 7, the Investigating Officer, in paragraph 19 of his deposition admitted that no date below the signature of the Circle Officer in the first case diary had been mentioned.\n22. The date, which appeared in the case dairy, is 16.4. In terms of the U.P. Police Regulation, to which we may short to a little later, the copies of the case diary were required to be sent to the Superintendent of Police and other high officer the next day. In this case the said requirement was not complied with.\n23. P.W. 7 further admitted that some numerical had been written on the said page but he could not say who wrote them and what was the significance thereof. It further appears from his evidence that no name of the accused had been recorded on the inquest and other papers, which were 18 in number. He could not infer even the gist of the incident from the face of the inquest report. He admitted that he was not able to understand the contents of column 2 of the inquest, i.e., the manner of the report. According to him, he had merely read in the said column \"murder by gunshot\". He admittedly had not mentioned about the nature of the weapon or the person who was responsible for the murder, although in the FIR not only the nature of weapon was mentioned, it was categorically stated as to how the incident took place, including the fact that the DBBL gun held by appellant No. 1 herein was a licensed gun. Yet again, to P.W. 8, Shailesh Tyagi, clear suggestion was given that \"writing of diary was stopped\" and FIR was recorded when Investigating Officer returned in the afternoon on 13 April 1992 from the place of occurrence and thereafter the special report was sent. The FIR, according to the said witness, was sent by post. He merely stated that the Constable who went to the police station, which was at a distance of 50 kms. from the Headquarter, took with him the FIR also but no date or case number had been mentioned in the prescribed column.\n24. He accepted that the FIR was produced before the Court of Chief Judicial Magistrate on 18 April 1992.This Court in Meharaj Singh v. State of U.P., [1994] 5 SCC 188 1994 Indlaw SC 450, as regards the requirement of sending of the FIR to the Court, the inquest report as also the requirements to comply with other formalities provided for external checks, categorically held :\n\"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-time to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.\"\n25. The said decision of this Court was followed by a Three Judge Bench of this Court in Thanedar Singh v. State of M.P., [2002] 1 SCC 487 2001 Indlaw SC 135 and also in, Rajeevan & Anr. v. State of Kerala, [2003] 3 SCC 355 2003 Indlaw SC 160 and Bijoy Singh & Anr. v. State of Bihar, [2002] 9 SCC 147 2002 Indlaw SC 1613.\n26. We are, however, not oblivious of the fact that Meharaj Singh 1994 Indlaw SC 450 (supra) has been distinguished in Rajesh @ Raju Chandulal Gandhi & Anr. v. State of Gujarat, [2002] 4 SCC 426 2002 Indlaw SC 155, stating :\n\"Relying upon the judgment of Meharaj Singh  v. State of U.P1994 Indlaw SC 450. the learned counsel appearing for the appellants has submitted that FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led in the trial. The object of insisting upon prompt lodging of the FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses. One of the external checks which the courts generally look for is the sanding of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante-timed to give it a colour of promptly lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singh 1994 Indlaw SC 450 case is of no help to him in the instant case inasmuch as all requisite details are mentioned in panchnama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Ext. P-37 has not persuaded us to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove.\"\n27. The State of U.P. had made regulations in terms of the Police Act, 1861 which are statutory in nature. Regulation 97 provides as to how and in what from the information relating to commission of a cognizable offence when given to an officer-in-charge of a police station, is to be recorded. Such a First Information Report, known as chik (check) report, should be taken out in triplicate in the prescribed form and the true facts should be ascertained by a preliminary investigation'. In the event a written report is received, an exact copy thereof should be made and the officer-in-charge of the station is required to sign on each of the pages and put the seal of the police station thereupon. The duplicate copy is to be given to the person who brings the written report and the original thereof must be sent to the Superintendent of Police. Regulation 108 emphasizes the need of maintaining the case diary stating that time and place should be noted in the diary by the Investigating Officer when beginning the investigation; whereafter only , he should inspect the scene of the alleged offence and question the complainant and any other person who may be able to throw light on the circumstances. Regulation 109 provides that the case diary must contain the particulars required by Section 172 of the Code of Criminal Procedure in sufficient detail so as to enable the supervising officer to appreciate the facts.\n28. The learned Trial Judge, in view of the aforementioned conduct of the prosecution and the available materials on records, was of the opinion that defence version is possible. The learned Trial Judge recorded that the statement of Veer Singh had not been recorded by the Investigating Officer. The High court opined that Veer Singh was not an eye-witness of the FIR. The High Court committed an error of record as in the FIR it has clearly been stated that Veer Singh went with the complainant P.W. 1-Rajveer Singh to lodge the FIR and he was present in the police station. In the FIR it was clearly stated :\n\"On commotion my uncle Veer Singh and Chetram son of Kalu, Shiv Singh son of Chotte, Sawan son of Bhaggan of our village reached there flashing their torches.\"\n29. The High Court was of the view that evidence shows that the investigation of the case was entrusted to P.W. 7-S.P.S. Tomar, but he was not present at the police station. The said finding may be correct but it has also been brought on record that one R.A. Singh was present. There was no reason as to why he did not taken up the investigation immediately. It is not the case of the prosecution that S.P.S. Tomar was the officer-in-charge of the police station. Shri R.A. Singh could have recorded the statement of P.W. 1, as also the said Veer Singh. According to P.W. 7, he recorded the statement of eye-witnesses after sunrise on 13 April 1992. If that is so, he should have mentioned the said fact in the general diary after he came back to the police station. He admittedly did not do so, although, the same was required to be done in terms of Section 44 of the Police Act, 1861, which is in the following terms :\n\"44. Police-officers to keep diary. It shall be the duty of every officer-in-charge of a police-station to keep a general diary in such from as shall, from time to time, be prescribed by the State Government and to record, therein, all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.\nThe Magistrate of the district shall be at liberty to call for and inspect such diary.\"\n30. Furthermore, even the statement of Sawan Singh had not been recorded under Section 161. P.W. 1, who is an eye-witness, stated that his evidence has been taken at about 7.30 a.m. and only thereafter, inquest had been carried out. Although, inquest had been carried out in his presence, his signatures we're not taken on the 'Panchayatnama'. P.W. 2-Chet Ram stated that the inspector did not examine him about the murder at all and he did not meet the inspector after sealing of the dead bodies. The Investigating Officer, who was examined as P.W. 7 did not contradict him.\n31. We do not know as to whether copy of the statement of P.W. 2, recorded in terms of Section 161 Cr.P.C., had been handed over to the accused. Even the same is not available on record.\n32. The High Court opined that the Investigating Officer might have taken the statement of the witnesses on the next day when he had conducted a raid on the house of the accused. Admittedly, the copy of the FIR reached the place of occurrence only in the morning of 13 April 1992. He did not have with him a copy of the FIR. Without a copy of the FIR, it is surprising that he could make raids.\n33. P.W. 1 was stated to have been examined on 4 O'clock in the morning on 13 April 1992. He, however, stated that he was examined at about 1/1.30 a.m.\n34. If, according to the doctor, some X-ray was to be taken, the same should have been taken immediately. Assuming the High Court is right in its observations that he must have been busy in relation to the investigation in regard to death of his parents, he was admittedly available in the town on 13th April. Post-mortem examination had only been carried out on 14 April 1992. There was not reason as to why he was not taken for an X-ray on 13 April 1992. Even assuming that there was good reason for taking the X-ray on 18 April 1992, it is significant to note, the X-ray plate had not been filed in the Court. A supplementary injury report had been prepared by P.W. 6, but the said report is not admissible in evidence, as the primary document, on the basis whereof he prepared his report, was not made available. He could have been effectively examined as regards the correctness or otherwise of the report only if the X-ray plate was placed on record. According to the Trial Court, although, the number of FIR was mentioned, as we have noticed hereinbefore, other details were lacking. There Investigating Officer also did not explain as to why he waited to make the investigation till 8 a.m. or 9 a.m. of 13 April 1992.\nAccording to the High Court's opinion :\n\"It is quite likely that he may have thought of commencing inquest after finishing the daily chores of life like going to toilet, taking a bath and having some breakfast. After touching a dead body many people do not eat anything without taking a bath. It is quite likely that P.W. 7 may have thought of commencing holding of inquest after taking breakfast etc.\"\n35. No such explanation has been offered by P.W. 7. The opinion of the High Court is based on the surmises and conjectures. We may, at this juncture, also notice the medical evidences brought on record. P.W. 9-Dr. Madan Mohan, performed the post-mortem examination. He conducted the post-mortem examination on 14 April 1992 both of Ram Gopal and Chatarvati. The death, according to him, took place on 1 day before the examination, which would take us about 10 p.m. on 12 April 1992. The ante-mortem injuries found on the body of Ram Gopal are already mentioned. He, in his evidence, stated :\n\"The direction of injury No. 1 of Ram Gopal was from upwards to downwards. The injury No. 1 is possible is somebody is lying and one fires from the side of head towards the legs from the top keeping his barrel parallel to the direction of body, from a distance. But then in that condition injuries No. 2 and 3 are not possible from one fire. There is a bleak possibility that Ram Gopal had received all the three injuries, from three different shots.\"\n36. The direction and dispersal of injury sustained by Ram Gopal did not tally with the prosecution case, which, according to the learned Trial Judge, raises a doubt about the presence of the prosecution witnesses. The High Court, however, opined that the pellets were of small size and could be deflected easily and there is a possibility of it that pellets could change their direction after hitting them with a force. The said opinion was arrived at by the High Court on the premise that the dispersal of pellets, as mentioned in authoritative texts, were regular factory made cartridges. The High Court failed to notice that appellant No. 1 was said to have been carrying licensed double barrel gun and thus authoritative text as regard direction and dispersal of the injuries could be relied upon. The High Court, in this regard, opined as under :\n\"The dispersal of the pellets as mentioned in authoritative texts is with regard to regular factory made cartridges. Besides Budh Singh, the remaining five accused were carrying country made pistols and country made guns. It is quite likely that locally made or hand-filled cartridge had been used where the position of dispersal of pellets may be entirely different.\"\n37. We have not been shown that there was any injury to the bone. Only Budh singh, according to P.W. 1, was responsible for firing from his double barrel licensed gun. It had been noticed by the learned Trial Judge, as also by us, the ante-mortem injuries suffered by Ram Gopal. The opinion of the High Court does not find support from the medical evidence.\n38. The prosecution witnesses, namely, P.Ws. 1, 2 and 3 further stated that the appellants and the deceased had been standing. According to them, only appellant No. 1 fired one shot. From the medical evidence, however, it appears that the direction of injury was from upwards to downwards, which belies the statement of the prosecution witnesses that both of them were in standing position and in fact, were quarrelling with each other. The opinion of the doctor is that at the time of firing Ram Gopal must have been laying down and the firing must have been done from a distance, which would mean from a higher level. In view of the nature of injuries suffered by Ram Gopal, such firing was possible from a distance of 40 to 45 feet and not from a close range. He did not find any charring, bleeding and tattooing marks. Furthermore, the margin of injury was found to be inverted. No corresponding exit would of the bullet was found. Even so far the injuries found on left thigh and right thigh are concerned, the same were inverted in nature. The reasons assigned by the learned Trial Judge in this behalf, thus, cannot be said to be perverse.\n39. P.W. 4-Dr. S.K. Verma also noticed only a lacerated wound on the person of P.W. 1. He did not see any pellet. He did not find any inverted wound. Had he noticed any, he would have mentioned the same. The injury, according to the doctor was with a sharp round object, which, according to the defence, could have been self-inflicted. It is also of some significance to note that both the learned Trial Judge as also the High Court did not place any reliance on the ballistic report of cogent reasons : Firstly, the site of recovery of pellet had not been shown in the site plan; Secondly, the envelope, in which the gun and the empty shell had been packed, did not bear the signatures of the witness and; Thirdly, the exhibits were sent to the ballistic expert after more than a month, i.e., on 15 May 1992.\n40. P.W. 1, in his evidence stated that apart from both his parents, he himself received gunshot injuries in a standing position and the accused were also standing. According to him, his father Ram Gopal ran towards the southern direction after being shot, whereas his mother ran towards north-west. He also ran towards the south. If the medical evidence is to be relied upon, having regard to the nature of ante-mortem injuries suffered by Ram Gopal, it might not have been possible for him to stand up and then run to some distance at all. The High Court referred to the Principles and Practice of Medical Jurisprudence (1984 Edition) by Taylor and Modi's Medical Jurisprudence and Toxicology (1967 Edition) for the purpose of showing that there are many instances where persons had been found to be walking to some distance after receiving gunshot injury in the heart or even run to some distance. The learned counsel appearing on behalf of the State had not been able to show before us that having regard to the nature of the injuries suffered by Ram Gopal, it was possible for him to stand up as was in a laying down position and then, run a few yards.\n41. The learned Trial Judge had drawn an adverse inference as no agricultural implement, as spade etc., were found at the place of occurrence. The High Court, however, reversed the said findings stating that the deceased and their son had been irrigating their field. P.W. 1, however, in his evidence categorically stated :\n\"I was away from the Engine. I flashed the torch as others who were having torches were also far from the engine. I was working at about 10 steps from the engine when the accused came. My mother and father were working near me. I was towards south from the engine. I was making bed (kyari) in the feld. Father was making the bed (kyari). Mother was sitting. We both were making the bed (kyari) withheld of spade. We left the there was the field. When Inspector came at the spot, there was no spade. I had shown to the Inspector the place where we were working. I cannot state the reason if he has not shown the same in the map. I cannot say who had taken away the spades.\"\n42. Apart from the place where they had been working had not been shown in the site plan, the High Court was also not correct to hold that the agricultural implements were not necessary for preparing kyaries.\n43. Indisputably it was P.W. 5, who had taken the dead bodies for post-mortem examination. The High Court noticed that P.W. 5, Constable Chandra Sen gave contradicting statements. He categorically stated that he had come to the place of occurrence at about 9 O'clock with the Inspector. How the FIR reached the hands of the Investigating Officer at 6-6.30 in the morning is a mystery.\nThe High Court opined as under :\n\"It may be mentioned that in his examination-in-chief this witness has merely stated about carrying the dead bodies to the Head Quarter for their post mortem examination. At three different places in his cross-examination  he has said that the matter had become very old and he does not remember the facts. He is not an eye witness of the occurrence nor he gave his statements after refreshing his memory from records. As a constable posted to a police station he may have accompanied the Sub Inspector or Inspector of Police to scenes of commission of crime on many occasions and may have carried the dead bodies to the Head Quarter for post mortem examination. It is quite likely that on account of confusion of mixing of facts with some other case, he may have stated that he reached the spot at 9 a.m. If this is accepted, it would mean that all the three eye witnesses and P.W. 7 S.P.S. Tomar gave false statements that the latter had reached the spot around 1.30 in the night. If his entire cross examination is read, it will clearly show that he did not remember the fact regarding reaching of the I.O. or distance of the bodies and place where they were lying and not much importance can be attached to the same.\"\n44. The evidence on record does not lead to such an inference. If P.W. 5 is to be believed, the same would clearly suggest that three eye-witnesses, as also P.W. 7 gave false evidence. If P.W. 5 made some mixing statement, it was for the prosecution to examine. According to him, he had been present at the place of occurrence throughout the day, till the dead bodies were sent to the Head Quarter.\n45. The Trial Court disbelieved the evidence of P.W. 2 and P.W. 3. But P.W. 3 had changed his statement regarding place of occurrence where Chatarvati had sustained injuries. The ante-mortem injuries found on the dead body of the Ram Gopal clearly belied the statements of P.Ws. 1, 2 and 3. The High Court, however, held that P.Ws. 2 and 3 were not related to the complainant. The following statement of P.W. 2 in his cross-examination goes to show that they were related to the complainant :\n\"The name of my father was Kallu. I have no knowledge how many brothers my grandfather, Guljari were. I do not know my grandfather were five brothers. I do not know if Bihari, Gangu, Bhola, Sandhu were brothers of my grandfather. Ram Gopal and Veer Singh are son of Heera. The name of Heers's father was Nannu. The name of Nannu's father was Bihari. Shiv singh was son of Chotte. I do not know if Chotte was son of Bihari. I do not know if Nannu and Chotte are brothers. It is wrong to suggest that I am concealing deliberately that I am cognate to the Ram Gopal, Veer Singh and Shiv Singh.\nPrem and Jagan are separated. They have different fields and kitchens.\"\nP.W. 3 also stated as under :\n\"My father were two brothers. The name of father's brother was Thakura, I do not know the name of my grandfather. It is wrong to suggest that Nanua was also brother of my father. I do not know the name of my grandfather was Bihari. Heera is son of Nanua. The name of Nanua's father is not Bihari. I have no relatoin with Chetram. Chetram is witness in this case. He has no relationship with me. I am not uncle of Veer Singh.\"\n46. It will bear repetition to state that according to P.W. 2, his statements had not been taken by P.W. 7 under Section 161 Cr.P.C. It is interesting to note what P.W. 7 in his evidence stated :\n\"...I cannot tell about the distance between the place where the dead body of Chatarvati was found and the road which goes towards village from fields which had been shown in site plan, as I had not measured the aforesaid distance. I had not seen the fields of witnesses Veer Singh, Chetram, Shiv Singh & Savan Singh from where after completion of their work they had reached at the place of occurrence. I cannot tell the length of the field having trees belonging to Meer Hasan which is South to the field of witness Chetram, it is very long. No marks of blood was found between the place HD and 'G'. There was heavy crowd in the night.\"\n47. We may notice that admittedly the accused No. 6 was not carrying any weapon. He admittedly had a dispute with Veer Singh. Veer Singh accompanied the complainant to the police station. No role had been attributed to the said accused. It is not clear as to why he was implicated. He did not have any dispute with the deceased, namely, Ram Gopal and Chatarvati. The prosecution did not lead any evidence as to why he would join the appellant Nos. 1 and 2 in commission of the crime. Similarly, appellant Nos. 3 and 4 were cousins. Except making a statement that they had been carrying some country made pistols and fired from their respective weapons, no evidence has been brought on record to that effect. We also fail to understand as to why the Investigating Officer, who took over the investigation from P.W. 7 and who had investigated only for 8 days, had not been examined. No explanation whatsoever has been offered by the prosecution in this regard.\n48. The version of the prosecution is that the lands belonging to P.Ws. 2 and 3 were half a kilometer away and they do not have any field near the field of the deceased. There was no standing crops in the field. The view of the Trial Court, having regard to the aforementioned facts and circumstances of the case, was, therefore, a possible view and as such we need not go into the other contentions as regards the motive or time of death, vis- -vis, the medical opinion etc.\n49. For the reasons mentioned hereinbefore, we are of the opinion that the High Court was not correct in arriving at the conclusion that the view of the Trial Court was wholly perverse and could not be sustained on the materials brought on record by the prosecution. This appeal is, therefore, allowed.\n50. The impugned judgment of the High Court is set aside. The appellants are on bails. They are discharged from their bail bonds.\n"}
+{"id": "Is9hVLXnGB", "title": "", "text": "Rajinder Kumar Kindra v Delhi Administration Through Secretary (Labour) and Others\nSupreme Court of India\n\n27 September 1984\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 2386 of 1984. Appeal by Special leave from the  Judgment and Order dated the 2nd March, 1983 of the Delhi High Court in Writ Petition No. 314 of 1983.\nThe Judgment was delivered by : D. A. Desai, J.\n1. Appellant Rajinder Kumar Kindra was inducted as a peon by M/s Raymond Woolen Mills Ltd. ('employer' for short). In 1972 he was promoted as a salesman and at the relevant time he was serving at the Raymond's retail showroom in Karol Bagh, New Delhi. One Shri R.S. Negi was the Manager-cum-Cashier of the Karol Bagh Show-room of the employer under whom the appellant was working. He was served with a charge-sheet dated December 11, 1975 which reads as under:\n\"That you, Shri Rajinder Kindra, is hereby informed that you, while working as a salesman at Raymonds' Retail Show-room, 2397/1, Hardhian Singh Road, New Delhi-5\nhave misappropriated cash and funds from the amounts of Raymonds' Woolen Mills Ltd., to the extent of Rs. 32,196/88 or a part thereof during the period 10.6.75 to 17.10.75 by manipulating false accounts, submitted bogus cheques into the Mills Account or by taking cash from the chest of the Retail Depot along with Shri R.S. Negi, Manager-cum-Cashier of Raymonds' Retail Show- room, 2397/1, Hardhian Singh Road, Karol Bagh, New Delhi.\nThat you Shri Rajinder Kumar Kindra while acting as a salesman aided, abetted, connived and conspired with the Manager-cum-Cashier Shri R.S. Negi of the said show-room and issued various cheques in the amount of Rs. 15,027/75 from your cheque book with the ulterior motive and design to defraud the Company of the said amount by submitting these bogus cheques into the Mills' Account and thereby causing unlawful gain to yourself and causing unlawful loss to the Company in collusion with Manager-cum-Cashier Shri R.S. Negi.\nThat you Shri Rajinder Kumar Kindra has willfuly/ negligently permitted the user of the cheques in order to defraud the company of the amount of Rs. 15,027/75 in conspiracy with Shri R.S. Negi and you have been habitually negligent and willfully disobedient in the performance of your duties as salesman.\"\n2. One Shri V.K. Soni was appointed as Enquiry Officer to enquire into the aforementioned charges. In the course of enquiry, the appellant denied the charges levelled against him. He stated that the cash used to remain with Manager- cum-Cashier Shri R.S. Negi and it is for him to explain about some cheques drawn and the statement of account submitted by him. He denied himself having issued any cheque. He denied that he was negligent in performance of his duty. The employer examined Shri O.D. Sharma, Shri G.L. Kapur, Shri V.K. Malhotra and Shri Nandan Singh as witnesses for the management. The appellant gave evidence on his behalf and he was cross-examined on behalf of the employer. He also examined one Shri A.K. Godbole as his witness.\n3. The Enquiry Officer Shri V.K. Soni submitted his report dated June 22, 1976. In the report, he Inter alia held that the appellant had been guilty of gross negligence and misconduct in the discharge of his duties and he was 'actively responsible for committing the fraud on the Company with Shri R.S. Negi to the extent of Rs. 15027.75 and all the charges as contained in the charge-sheet against the appellant were held proved.\n4. The employer accepted the report and dismissed the appellant from service with effect from August 25, 1916.\n5. The appellant raised an industrial dispute inter alia contending that the findings of the enquiry officer were perverse and there was no evidence in respect of either the charge of negligence or embezzlement of funds and that the dismissal from service was wholly unjustified. The employer and the appellant by a written agreement agreed to refer the existing industrial dispute arising out of the dismissal from service of the appellant to an arbitrator, as provided by Sec. 10 (A) (1) of the Industrial Disputes Act (Act for short). The first respondent Delhi Administration pursuant to aforementioned written agreement referred the following dispute to Shri G. C. Jain, Presiding Officer of the Labour Court, Delhi who was selected by the parties to be the arbitrator. It reads as under:-\n\"(1) Whether the services of Shri R.K. Kindra were terminated illegally and unjustifiably ?\n(2) Whether the enquiry proceedings were initiated by the principles of natural justice and equity ?\n(3) To what relief if any, is the worker entitled ?\"\n6. The employer contended before the arbitrator that the enquiry held by him is fair and just and full opportunity was afforded to the appellant to participate in the enquiry, to cross-examine witnesses produced by the management and to lead his evidence. It was further contended that the conclusions reached by the enquiry officer and findings recorded by him are borne out by the evidence and permissible inferences drawn from the evidence and they are such that any reasonable person would reach on the evidence the conclusion of guilt of the appellant. It was submitted that the arbitrator cannot sit in appeal over the findings of the enquiry officer. It was further contended that at any rate there is satisfactory evidence to show that the appellant negligently kept his cheque book in relation to his private banking account in such a manner as to be accessible to any one to misuse the same and this was done intentionally, so as to facilitate the commission of fraud presumably by Manager-cum-Cashier Shri R.S. Negi. In the ultimate analyses this was the only misconduct attributed to the present appellant.\n7. The arbitrator held that none of the witnesses of the employer has stated that the appellant misappropriated any amount of the Company or he had manipulated false accounts or had submitted bogus cheques in the account of the employer or had taken away any amount from the chest of the retail depot or had abetted, aided, conspired or connived with Shri R.S. Negi or issued any cheque to defraud the Company. Thus the employer failed to lead any evidence before the arbitrator to impute any misconduct to the appellant as alleged in the charge-sheet. The arbitrator concluded that there was no evidence in support of charge No. 1 and 2 and there was no evidence to prove Charge No. 3. The conclusion reached by the arbitrator may be extracted:\n\"In conclusion, I hold that the findings of the Inquiry Officer were based on no legal evidence and were, therefore, perverse. The enquiry is, therefore, vitiated. I hold accordingly.\"\n8. On these findings nothing remains save and except the consequential order that the dismissal from service of the appellant must be quashed and set aside and the appellant be reinstated in service with all consequential benefits unless of course the employer had sought an opportunity to lead evidence before the arbitrator to substantiate the charges.\n9. No such opportunity was sought and therefore as held by this court in Shanker Chakraborte v. Britannia Biscuits Co. Ltd., 1979 Indlaw SC 17 nothing further was required to be done and the award reinstating the appellant should have followed. Unfortunately making of this consequential order was postponed. The finding of the arbitrator is dated May 24, 1976. It appears that soon thereafter Shri G.C. Jain arbitrator was elevated as a Judge of the Delhi High Court and he consequently before taking his oath did not make the final order which was merely a formal part of his duties.\n10. That unfortunately led to a second reference. This time reference was made under Sec. 10 (A) (1) to Shri N.L. Kakkar, retired Additional District and Sessions Judge, Delhi as an arbitrator. The same three points were referred to Shri Kakkar for his decision. Shri Kakkar after narrating the evidence that was led before the enquiry officer summed up his findings as under:-\n(a) \"That the services of Shri R.K. Kindra, were not terminate illegally or unjustifiably but on account of charges having been successfully proved against him, especially the third charges that is with regard to willfully/negligently permit the user of cheques in order to defraud the company in conspiracy with Shri R.S. Negi and negligence in the performance of his duties as a salesman.\n(b) That the enquiry proceedings were not vitiated by the principles of natural justice and equity as full opportunity was given to the workman and no prejudice was caused to him by any act of the management, although he was given full opportunity to lead his evidence and to cross-examine the witnesses of the management and particularly there was no enmity between the work man and the enquiry officer and the dismissal as such was not wrongful.\n(c) That the workman is not entitled to any relief, and is not entitled to reinstatement with back wages and continuity of service since he has been gainfully employed with Shri Tara Chand at his coal depot ever since his dismissal.\nThe reference by way of award is answered accordingly.\"\n11. The appellant filed a writ petition under Art. 226 in the High Court of Delhi questioning the correctness, validity and the legality of the award made by Shri Kakkar.\n12. A Division Bench of the High Court dismissed the matter in limine, observing that the matter depends upon assessment of evidence and the Court cannot reappraise the same under Art. 226 of the Constitution. Hence this appeal by special leave.\n13. Let it be made absolutely clear at the outset that the only misconduct imputed to the appellant was that he was negligent in keeping his cheque-book in relation to his own private account in such a manner that it enabled Shri R.S. Negi, Manager-cum Cashier of the Branch in which the appellant was a salesman at the relevant time to misuse the cheque forms and thereby defraud the employer. Mr. P.K. Jain learned counsel for employer specifically conceded that the only misconduct alleged against the appellant consists of his negligence in keeping his own cheque-book by which he could operate his own private account in such manner as to enable someone so-minded to misuse the cheque forms. He was repeatedly asked what law, rule, regulation or a standing order, if there be any, which requires an employee to keep his own private cheque-book under lock and key or safe custody so that no one except himself can have access to it and we waited for the answer in vain. It was conceded that the appellant is not guilty of any embezzlement or misappropriation of funds of the employer though a grandiose albeit flamboyant charge was framed that he misappropriated cash and funds from the accounts of the employer to the extent of Rs. 32,196.88 p. or part thereof during the period June 10, 1975 to October 10, 1975 by manipulating false accounts, submitting bogus cheques into the employer's account or by taking cash from the chest of the branch alongwith Shri R.S. Negi, Manager- cum-Cashier of the Branch. There is not a tittle of evidence in support of the allegation of misappropriation or embezzlement of funds or manipulation of accounts by the appellant. This was in terms conceded. The allegation, to be specific, of the employer is that Shri R.S. Negi, Manager- cum-Cashier misused the cheque forms from the cheque-book of the appellant in respect of his private account and embezzled funds of the employer. It was not the case of the employer that applicant drew cheques or embezzled cash from the chest. Another allegation was that the appellant abetted, aided, connived at or conspired with Manager-cum- Cashier Shri R.S. Negi, in charge of the branch and issued various cheques in the amount of Rs. 15,027.75 p. drawn on forms of cheques contained in the cheque-book of the appellant issued to him for operating his own private account with ulterior motive of defrauding the employer by submitting bogus cheques into the account of the employer and thereby caused wrongful gain to himself and wrongful loss to the employer, in collusion with Shri R.S. Negi. Again it was conceded that there is absolutely not an iota of evidence which could indicate that the appellant issued any a cheques himself or that he aided or abetted someone to issue the r bogus cheques. These were the allegations in charges Nos. 1 and 2 and the finding by Mr. Kakkar that they are proved can be styled as perverse on the admission of the employer himself because not a single witness in the course of domestic enquiry so stated. Mr. Jain, learned counsel for the respondent could not point out one single sentence of evidence in support of these two charges.\n14. Mr. P.K. Jain urged that the third charge which was to the effect that the appellant permitted the use of the cheques from the cheque-book issued to him by the Bank in which he was maintaining his own private account to defraud the employer to the tune of Rs. 15,027.75 p. in conspiracy with Shri R.S. Negi and that he was negligent and was guilty of wilful disobedience ill performance of his duties as a salesman was substantiated. It is a composite charge. The first limb of the charge refers to negligence in handling his private cheque book so that in conspiracy with Shri R.S. Negi cheque forms contained in the cheque-book issued to the appellant for operating his private account were used by Shri R.S. Negi to defraud the employer. Rejecting the language improperly used the charge is that the appellant kept his private cheque book unattended or not in safe custody so that Mr. R.S. Negi misused the cheque forms from this cheque book. In support of this allegation, the evidence is that the appellant did not keep his cheque-book under lock and key or in safe custody so that no one else except himself will have access to the same We have not been able to understand apart from appreciating this charge. When a cheque book is issued to a holder of an account by the Bank, there is no law which requires him to keep his cheque book in safe custody. He may keep it in any manner and if in the process some one misuses the cheque and withdraws money from the account of the holder, the bank will be able to disown its liability pleading negligence of the holder of the account. A man can keep his cheque book anywhere he likes and even if it is not in safe custody he does so at his own peril. In the event of misuse as a result of negligent handling of the cheque book, the Bank will be able to disown its liability if someone by misuse of the forms of cheques withdraws any amount from the account in respect of which the cheque book is issued. That is not the case here. The accusation is that the appellant kept his cheque book in such a manner as to be accessible to any one and that some one unscrupulously removed the forms of cheques from the cheque book of the appellant and used them to withdraw money from the appellant's account but from the employer's account. Some one so minded to forge cheque and to withdraw money from some one's account may use anybody's cheque book. In such a situation, the owner of the cheque book unless he has participated in the conspiracy in any manner for facilitating withdrawal of the amount cannot be attributed any misconduct for keeping his cheque book unattended or not in safe custody. There fore first limb of the charge No. 3 can be rejected as per se untenable without anything more.\n15. The second limb of the third charge is that the appellant was negligent and guilty of wilful disobedience in performance of his duties as a salesman. Not a single witness has spoken of any negligence on the part of the appellant in performance of his duties. There is not the remotest suggestion in the evidence to that effect. Not a single witness has spoken about any wilful disobedience in performance of duty. Some flamboyant charges appears to have been cooked up by the employer without any regard for truth or without any regard for responsibility ill making such heinous allegation and levelling serious accusation without an iota of evidence in support of it We repeatedly asked Mr. P.K. Jain, learned counsel for the employer to show from the evidence led before the inquiry officer which order of the employer was disobeyed much less unwilfully by the appellant, as also acts of omission and commission in performance of duty to spell out negligence. The only reply we received was that the appellant kept his cheque book unattended. Keeping one's own cheque book unattended is no part of performance of duties of the employee and there was no order by the employer how appellant should handle his private cheque book.\n16. Let is be made distinctly clear that this Court in this appeal is not re-appreciating evidence. Mr. G.C. Jain, the first Arbitrator who completed a major part of the enquiry in the reference made to him under sec. 10 (A) (1) after meticulously examining the evidence led on behalf of the employer in the enquiry proceedings concluded as under:-\n\"22. I have carefully examined this entire evidence. None of the witnesses has stated that Shri Kindra had misappropriated any amount of the Company or he had manipulated false accounts, or had submitted bogus cheques in the mills account and had taken away any amount from the chest of the retail depot or had abetted, aided conspired or connived with Shri R.S. Negi or issued any cheque to defraud the company. What PW-1 to PW-3 said is that Shri Negi used five cheques from the cheque book of this workman to defraud the company. There is no evidence to show any fraud on the part of Shri Kindra or to connect him with misappropriation by Shri Negi. The mere fact that his cheques were used is not sufficient to hold that he had entered into conspiracy with Shri Negi or that he wilfully or negligently permitted the use of the cheques in order to defraud the company to the amount of Rs. 15,027.75 p. Or part thereof Management's own witness have stated that these cheques were utilised either with the connivance of Shri R.K. Kindra or because of his negligence in respect of the same. None of them has stated with certainty that Shri Kindra was a party to this misappropriation. No doubt the evidence shows that he was not very careful in keeping his cheque book under lock and key. But this circumstance is not sufficient to hold that he had entered into any conspiracy with Shri R.S. Negi or was a party to the misappropriation. Thus there was no evidence in support of charge No. 1 and 2. There is no evidence that Shri Kindra wilfully permitted the user of his cheque book. There is no evidence that his negligence in keeping the cheque book in a drawer without a lock was with a view to defraud the company. There is no evidence that he was habitually negligent or willfully disobedient in the discharge of his duties. The manner of keeping his personal cheque book was not a part of his duties as salesman. Thus there was no evidence to prove charge No. 3 as well.\"\n17. He further concluded in paragraph 23 of his award that the findings of the enquiry officer were based on no legal evidence and were therefore perverse and the enquiry was vitiated. The employer never sought an opportunity to lead evidence before arbitrator to substantiate the charges. In fact on the conclusion recorded by Mr. G.C. Jain he should have made a consequential order of setting aside the order of dismissal and directing reinstatement with back wages but he unnecessarily procrastinated and then before he could attend to the remainder of the work, he was elevated to the bench of the Delhi High Court leaving the appellant to face the music of a fresh enquiry and a complete sommer sault by the new arbitrator.\n18. A fresh reference was made to Sh. N.L. Kakkar, Mr. P.K. Jain, learned counsel for the employer/contended that this Court is only concerned with the award of Mr. Kakkar and the findings recorded by Mr. G.C. Jain are not relevant. We have serious reservations about this submission, but it is not necessary in this case to decide that point. We would now confine ourselves to the award of Shri Kakkar.\n19. In Paragraph 1 to 5, the history of the dispute and the charges framed against the appellant have been set out by Mr. Kakkar. Paragraph 6 deals with what the enquiry officer did. Paragraph 7 reproduces the contentions on behalf of the appellant. Paragraph 8 summarises the contentions on behalf of the employer. Paragraphs 9, 10 and 11 deal with the manner in which the enquiry was held. Paragraph 12 refers to the written arguments submitted on behalf of the employer. In the concluding paragraph 13, Mr. Kakkar states that the circumstances of the case and the evidence produced by the parties before the enquiry officer as well as in the present proceedings and on the consideration of the documents filed and proved, it is held as therein stated. He then recorded his ipse dixit not discussing the evidence or the total absence of it. It may be pointed out that in the course of the enquiry held against the appellant by Mr. U.K. Soni, enquiry officer, the employer had examined 4 witnesses namely Shri O.D. Sharma, Shri G.L. Kapur, Shri V.K. Malhotra and Shri Nandan Singh. No witness was examined before Shri G.C. Jain and the employer relied upon the report of the enquiry officer and the evidence of the four witnesses recorded by the enquiry officer. When the matter came up before Mr. Kakkar, the employer had not examined any witness but had submitted the report of the enquiry officer and the evidence of the aforementioned witnesses. Therefore when it was contended before the arbitrator that even accepting the evidence of the four witnesses, as if unchallenged, no reasonable man could ever come to the conclusion that the misconduct imputed to the appellant in charges No. 1, 2 and 3 could be said to be proved, it was incumbent upon him to examine the evidence. We invited Mr. P.K. Jain to point out to us which evidence is being relied upon in support of the charge of embezzlement and the charge relating to alleged misappropriation of funds. He could not lay his hand on any piece of evidence. Conceding that there is no evidence in support of the charge of embezzlement and misappropriation of funds simultaneously conceding that charges No. 1 and 2 are not proved, he repeatedly emphasised that the only conducts of which appellant is guilty is that the appellant had so deliberately left his cheque book unattended as to be accessible to anyone who may misuse it and this constitutes negligence in performance of duty. Even at the cost of the repetition, we must point out that keeping one's private cheque book in any manner is no par. Of the performance of the duty of the employee. To say the least the charge apart from being frivolous is ludicrous and could not have even framed. Even if the allegation in the charge is left unquestioned it does not constitute misconduct. The employer could not have framed such charges without any evidence in support of them yet Mr. Kakkar holds them proved. Therefore Mr. Kakkar accepted the findings of the enquiry officer which were per se perverse. Not only Mr. Kakkar did not apply his mind to the submission of the appellant that the findings were perverse but he merely recorded his ipse dixit without any manner analysing or examining or applying his mind to the evidence only to find out whether there was any evidence to substantiate the charge and whether any reasonable man would arrive at the conclusion which the enquiry officer had reached. The award of Mr. Kakkar, apart from the fact that it is based on no legal evidence suffers from the additional infirmity of total non-application of mind. Any finding of misconduct based on total absence of evidence must fail.\n20. Mr. Jain contended that once Mr. Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under Art. 226 nor this Court under Art. 136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. We have not at all attempted to re-appreciate the evidence though in exercise of the jurisdiction conferred by sec. 11-A of the Industrial Disputes Act, 1947 both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decided whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to re-appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This court in Workmen of M/s Firestone Tyre Rubber Company of India (P) Ltd. v. Management & Others [1973] 3 SCR 587 1972 Indlaw SC 315, held that since the introduction of sec. 11-A in the Industrial Disputes Act, 1947, the Industrial tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally well-settled that the arbitrator appointed under Sec. 10-A is comprehended in sec. 11-A. This court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [1980] 2 SCR 146 1979 Indlaw SC 37, held that an arbitrator appointed under sec. 10-A of the Industrial Disputes Act, 1947 is comprehended in sec. 11-A and the arbitratal reference apart from sec. 11-A is plenery in scope. Therefore it would be within the jurisdiction both of the arbitrator as well as this court to re- appreciate the evidence though it is not necessary to do so in this case. It is thus well-settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under sec. 10-A or this court in appeal under Art. 136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of Powers conferred by sec. 11-A to do so.\n21. It is equally well-settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated. The industrial tribunal or the arbitrator or a quasi-judicial authority can reject not only such findings but also the conclusion based on no legal evidence or if it is merely based on surmises and conjectures unrelated to evidence on the ground that they disclose total non- application of mind. Viewed from either angle, the conclusion of the enquiry officer as well as of the arbitrator Mr. Kakkar are wholly perverse and hence unsustainable. The High Court, in our opinion, was in clearly error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence.\n22. Between appraisal of evidence and total lack of evidence there is an appreciable difference which could never be lost-sight of and the High Court ought not to have short circuited the writ petition.\n23. If there is absolutely no evidence in support or the only allegation of misconduct namely negligence in not keeping one's private cheque book in safe custody, the conclusion is not only not a plausible one but it is wholly perverse and we are in complete agreement with findings recorded Mr. G.C. Jain that the findings of enquiry officer were perverse and the enquiry was wholly vitiated.\n24. Where the order of dismissal is sought to be sustained on a finding in the domestic enquiry which is shown to be perverse and the enquiry is vitiated as suffering from non- application of mind the only course open to us is to set it aside and consequently relief of reinstatement must be granted and nothing was pointed to us why we should not grant the same.\n25. It was next contended on behalf of the appellant that reinstatement with full back-wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment E so as to reject the claim for back-wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back-wages and all consequential benefits.\n26. Accordingly, the appeal is allowed and the award of the arbitrator Shri Kakkar is set aside and the appellant is re- instated in service with full back-wages and consequential benefits to which he would have been entitled had he not been unlawfully thrown out from service, and the costs of this appeal quantified at Rs. 3,000. The back-wages payable to the appellant and the costs awarded herein shall be paid to him within 2 months from today. The appellant shall be physically reinstated in service within a week from today.\n27. The appellant shall be entitled to all the consequential benefits f his continuous service.\n"}
+{"id": "MbyIbNiCdx", "title": "", "text": "State of Punjab v Gian Kaur and Another\nSupreme Court of India\n\n5 March 1998\nCr.A. No. 122 of 1991 (Cri. A. No. 13-DB of 1987, D/- 19 July 1988 (Punj & Har).), Dt. 5 March 1998.\nThe Judgment was delivered by : G. T. Nanavati, J.\n1.  The State has filed t his appeal against the judgment of the Punjab & Haryana High Court in Criminal Appeal No. 13/87. The High Court acquitted both the respondents for the offence punishable under Section 302 read with Section 34 IPC.\n2.  Both the respondents along with two others were tried for causing death of Rita, Respondents Gian Kaur, Balvinder kaur, Darshan lal and Balbir were the mother-inlaw, sister-in-law, father-in-law and husband respectively of Rita (deceased).\n3.  The prosecution case was that they were not satisfied with the dowry given to her by her parents at the time of her marriage and that had often led to quarrels between the accused and Rita and her parents. According to the prosecution, on 21.6.86 at about 6.00 p.m., Gian Kaur and Balvinder Kaur sprinkled kerosene on her and thereafter Gian kaur set her on fire by throwing a lighted match stick on her.\n4. It was further alleged that the mother-in-law wanted to get her son re-married and for that reason also she wanted to kill her.\n5.  The only evidence which was relied on by the prosecution and on the basis of which the trial court convicted Gian Kaur and Balvinder kaur was the dying declaration recorded by ASI-Darshan Singh PW 5.\n6.  The High Court disbelieved the dying declaration on the ground that even thought according to the medical evidence Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt.\n7. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view.\n8.  This appeal is, therefore, dismissed, Bail bonds are ordered to be cancelled.\n"}
+{"id": "A4dhjkuRv6", "title": "", "text": "Laxmi Smt v Om Prakash and Others\nSupreme Court of India\n\n9 July 2001\nAppeal (crl.) 717 of 1994\nThe Judgment was delivered by : R. C. Lahoti, J.\n1. Nemo moriturus praesumitur mentire No one at the point of death is presumed to lie. A man will not meet his Maker with a lie in his mouth is the philosophy in law underlying admittance in evidence of dying declaration. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684 1993 Indlaw SC 194. The Court added - such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of law, by way of preamble to this judgment, has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34 IPC, seeks reversal of the impugned judgment and invites this court to record a finding of guilty based on the singular evidence of dying declaration made by the victim. The law is well settled: dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.\n2. The deceased Janak Kumari died an unnatural death on 8 March 1982 having sustained extensive burn injuries on 7 March 1982. She was aged about 25 years at the time of her death. Six years before the date of the incident she was married to the accused Om Prakash. The couple had a female child aged about 5 years at the time of the incident. They lived with Smt. Ram Pyari and Kumari Shakuntala, the two co-accused and respectively mother and sister of the accused Om Prakash. Unfortunately, Janak Kumari and Om Prakash could not carry on well and their marital relationship suffered a jolt so much so that on 14 November 1980 on a complaint made by Janak Kumari an offence under Section 385 IPC and Section 4 of Dowry Prohibition Act was registered at P.S. Pahar Ganj, Delhi against these three accused persons. However, the case was consigned to record room on 9 March 1982 under the order of the Metropolitan Magistrate. There were divorce proceedings also initiated by Om Prakash against Janak Kumari which ended in a compromise in December 1981 whereunder Janak Kumari joined back the matrimonial home.\n3. On 7 March 1982 at about 7.20 a.m. the accused Om Prakash informed the police control room on telephone that his wife had set herself unto fire having poured kerosene oil on herself. This information was received by S.I. Badri Nath, PW 19 who directed the police control room van (PCR Van) to rush to the place of the incident. Simultaneously he conveyed message to P.S. Pahar Ganj where it was recorded in the Roznamcha, Exhibit PW 14/E. SI Ramesh Chand Garg, PW 21 was handed over a copy of Exhibit PW14/E for necessary action. ASI Shiv Charan PW 5 reached the residence of the accused persons along with the PCR van. SI Ramesh Chand Garg, PW 21 along with constable Raghbir Singh had also reached there. The three brought the victim Janak Kumari to LNJP Hospital at 8.10 a.m. Janak Kumari was attended to by Dr. C.M. Khanijau, PW9.\n4. On way from the residence of accused persons to the hospital, Janak Kumari made a dying declaration to ASI Shiv Charan, PW 5. This is her first dying declaration. Another dying declaration was made by Janak Kumari to Dr. C.M. Khanijau, PW9 which was recorded by him as Exhibit PW 9/A. SI Ramesh Chand recorded a statement of Janak Kumari between 9 and 10 a.m. This is the third dying declaration, Exhibit PW 21/A. At the request of SI Ramesh Chand, Ajit Shrivastava, Sub-Divisional Magistrate, PW 16 reached the hospital and recorded the statement of Janak Kumari between 1.30 and 1.45 p.m. This statement, Exhibit PW 16/A is the fourth dying declaration. Kishan Lal, PW 3, the brother of the deceased reached the hospital at about 5.30 p.m. and to him Janak Kumari made a statement which is the fifth dying declaration.\n5. All the three accused persons were arrested by the police on 7 March 1982 itself. The half-burnt clothes of the deceased which she was wearing at the time of the incident as also the clothes of the accused, Om Prakash which were seized soon after the incident were sent to CFSL. Both the sets of clothes were found to contain residue of water and kerosene oil.\n6. Janak Kumari succumbed to her injuries and died at about 12 noon on 8 March 1982. Post-mortem on her body was conducted by Dr. B.N. Reddi, PW12.\n7. On completion of the usual investigation, the details whereof are not very material, a challan under Section 302/34 of the IPC was filed against the three accused persons. Charges were framed under Section 302/34 of the IPC against each of the three accused persons who pleaded not guilty. The prosecution examined 21 witnesses. 4 witnesses were examined in defence. We will refer to the relevant parts of the testimony at appropriate places. The learned Additional Sessions Judge having meticulously examined the prosecution evidence and having subjected each of the dying declarations to judicial scrutiny found none of them worthy of reliance so as to base conviction thereon either collectively or individually. On 31 January 1985 the learned Additional Sessions Judge recorded a verdict of not guilty and acquitted all the three accused persons.\n8. The State Government has not filed any appeal putting in issue the acquittal of the accused-respondents. However, Smt. Laxmi, the mother of the deceased Janak Kumari, filed a special leave petition under Article 136 of the Constitution before this Court. Leave was granted.\n9. Before taking up each of the dying declarations for consideration we will briefly set out the prosecution case as emerging from the evidence adduced so as to appreciate the worth of the dying declarations. We would also set out the nature of the injuries suffered and the condition of Janak Kumari after the incident i.e. during the time when she is said to have made dying declarations.\n10. The prosecution case opened with the statement of PW1 Trishla Kumari, aged 23 years, a close neighbour of the accused persons. She was friendly with the deceased being almost of the same age and was often talking to her. She stated that though at one point of time Janak Kumari and the accused Om Prakash had indulged into litigation and Janak Kumari had left the matrimonial home but after her returning back a few months before the date of the incident they were living well having sorted out their differences. At about 7 a.m. on the date of the incident while she was busy collecting water from the tap inside her house she heard the cries of Janak Kumari and she came out. She saw Janak Kumari burning. She threw water from her bucket on Janak Kumari and got the fire extinguished. The accused persons were also trying to extinguish the fire. Om Prakash accused had helped Janak Kumari in putting on a gown in place of her clothes which were burnt. Om Prakash had also put a blanket over Janak Kumari with a view to extinguish the fire. There are two very important disclosures made by her. Firstly, she stated, that before Janak Kumari left Om Prakash and the litigation started, Janak Kumari used to stand in the street and often abuse her in-laws. The other fact, revealed by her, is that after her return although apparently Janak Kumari and Om Prakash were living well having sorted out their differences yet once Janak Kumari had confided in this witness by telling her that she would kill herself and get the accused persons implicated.\n11. The five dying declarations made by the deceased on 7 March 1982, i.e. the date of the incident, pressed by the learned counsel for the appellants as reliable so as to provide basis for convicting the accused persons are as under:-\n12. Before taking up the individual dying declarations for consideration we would place on record the physical and mental condition of the deceased soon after the incident and before her death, i.e. at the time when the dying declarations are said to have been made. The deceased brought in the PCR van to casualty department of LNJP Hospital was admitted indoors by PW9 Dr. C.M. Khanijau. He examined the patient. According to Dr. Khanijau, Janak Kumari had superficial burns involving front of trunk, both thighs, arms, part of face and neck, scalp and hair. Her pulse was 102 per minute. The pupils were normal and reacting to light. The area of burns was 80- 90% approximately. He gave the patient injection tetanus toxides and injection pathedine 75 ml intra muscular and admitted the patient in burns ward for detailed examination and treatment. On being transferred to burns ward from casualty at 9 a.m., she was placed in charge of PW18, Dr. I.N. Tiwari, Plastic Surgeon. According to Dr. Tiwari, Janak Kumari was admitted as a case of 85% deep burns and dehydration. She was to be inter alia on heavy sedation, anti biotics and intra venus fluids. According to the case sheet of Janak Kumari, maintained in the burn ward of the hospital, Ex.PW18-A, and proved by Dr. I.N. Tiwari, PW18, Janak Kumari was under intense pain. Her tongue was dried. Her hands were burnt and the skin of the hands had peeled off. There was a complete loss of fluid and she was gasping for breath. Her condition was constantly deteriorating. She expired on 8 March 1982 at 12.10 p.m.\n13. PW12 Dr. B.N. Reddy, Associate Professor, Department of Forensic Medicine, conducted the post mortem examination on the body of deceased Janak Kumari at 10 a.m. on 9 March 1982. Dr. Reddy found extensive superficial burns spread over almost all the parts of the body. The cuticular layer peeled off from most of the areas of burns and inunpeeled areas, specially over the front of abdomen, was blackish. All the burns were ante-mortem. The diagrams of the body of Janak Kumari marked Ex.PW12-B drawn by Dr. B.N. Reddy go to show that Janak Kumari had 85% burn injuries. Her neck, mouth and both lips were also burnt.\n14. The abovesaid condition of the deceased has been noted by the learned trial Judge also and dealt with in his judgment. We will refer back to this aspect and its impact on the credibility of dying declarations where necessary. We now take up and deal with each of the dying declarations individually.\n15. First dying declaration - made to PW5 Shiv Charan, ASI, between 7.30 and 8 a.m.\n16. PW19 Badrinath, SI, was on duty at Police Control Room at 7.20 a.m. on 7 March 1982 when he received an information from Om Prakash, accused, to the effect that his wife had set herself to fire by sprinkling kerosene oil over herself. The information was recorded as Ex.PW19/A. He sent the PCR van to the place of the incident by instructing PW5 Shiv Charan, ASI. Shiv Charan stated that on his reaching the place of the incident and finding Janak Kumari in a burnt condition, the latter told him that her husband, mother-in-law and husbands sister had burnt her by pouring kerosene oil on her. In the PCR van a register is maintained termed as roznamcha. The messages received and transmitted at and from the PCR van are entered in the register. The witness was asked to produce the register for which purpose he sought for time from the court. The cross- examination was deferred on 12 October 1982 and resumed on 1 August 1984. On the adjourned date of hearing the witness did not produce the roznamcha and stated that the same was not traceable The witness does not explain why it was not traceable. Nothing has been brought on record to show if an important document like roznamcha maintained in PCR Van was missing what was follow up action, if any and whether this fact was brought to the notice of senior officials and any record of such missing of document came into existence.\n17. The statement of this witness was recorded during investigation. Shiv Charan, PW5 has admitted during cross-examination that the fact that he had enquired from Janak Kumari as to how she got burnt and what the victim had told him were not stated by him to the investigating officer when his statement was recorded. No reason has been assigned for this material omission, though his statement was recorded belatedly on 31 May 1982.\n18. A suggestion was given by defence during cross examination of this witness that he having reached the place of the incident, had made on the spot enquiries from different persons of neighbourhood, including Trishna Kumari, PW1, and he had come to know that Janak Kumari had committed suicide by pouring kerosene oil on herself and it was so recorded in the PCR van roznamcha and that is why it was being withheld from the court. Be that as it may, the fact remains that PW5 Shiv Charan, ASI, had proceeded to the place of the incident on being informed of a suicide having been committed by a woman. If a story to the contrary - a positive information of an attempt to commit murder by burning and that too having been received from the mouth of the victim had come to the knowledge of PW5 Shiv Charan, ASI, then that should have been recorded in the roznamcha and also flashed to the Police Control Room. Neither the PCR van roznamcha has been produced nor such information conveyed to the Control Room and/or police station. If only a dying declaration was made by Janak Kumari to this witness then in the ordinary course of the things, message would have been transmitted promptly by ASI Shiv Charan to the Police Control Room and would have been recorded as a first information report of the incident disclosing commission of a cognizable offence by specified accused persons. The omission in the police statement of Shiv Charan is fatal to his testimony. Ramesh Chand SI, PW21, had reached the place of incident before Janak Kumari was lifted from her house and removed to hospital. The alleged dying declaration made to Shivcharan PW5 must have come to the knowledge of Ramesh Chand SI who sent the rukka Ex. PW14/A to the police station. This rukka also does not make any mention of any such dying declaration having been made by Janak Kumari. In our opinion, the sole testimony of PW5 Shiv Charan, ASI uncorroborated by any other evidence as to a dying declaration, implicating the three accused persons having been made by the victim to him, is difficult to believe in the facts and circumstances of the case. The first dying declaration, therefore, stands discarded.\n19. Second dying declaration - made to PW9 Dr. C.N. Khanijau at 8.10 a.m. vide Ex.PW9-A\n20. This is a dying declaration, so called; it is no dying declaration in the eye of law. It would be a misadventure to spell out a dying declaration made by the victim from the statement of Dr. C.N. Khanijau. All that he has stated is this much that Janak Kumari was brought to casualty ward by Shiv Charan, ASI with the alleged history of being burnt by husband, mother-in-law and sister-in-law after pouring kerosene oil, after attempting to strangulate her with rope. Dr. Khanijau has nowhere in his statement deposed to having talked to Janak Kumari nor has he deposed to Janak Kumari having made any disclosure or declaration to the witness. A reading of the statement of the witness shows that such history may have been given to him by ASI, Shiv Charan who had accompanied the injured to the casualty ward. Strangely enough, the information given by Shiv Charan, ASI to Dr. Khanijau goes on to add the injured having been attempted to be strangulated with rope before having been set on fire. This misleading information must have had an embellishing effect on the medico-legal examination of the injured by Dr. Khanijau. He went on to record that on local examination of the neck there were marks of rope on the anterior half of the neck. However, Dr. B.N. Reddy, PW12, who performed the autopsy, has completely belied Dr. Khanijau on this point. He has stated that there were no strangulation ligature mark caused by rope on the neck of the victim. There was no evidence of ligature strangulation. There was no bruise in the neck muscles and no fracture of neck bones and cartilages. It is thus clear that there was no dying declaration made by the injured Janak Kumari to Dr. Khanijau. Rather it appears that there was someone attempting to develop a story of Janak Kumari having been attempted to be strangulated before she received burn injuries.\n21. Third Dying-Declaration - made to PW21, Ramesh Chand, SI between 9 & 10 a.m. vide Exhibit PW 21/A\n22. According to Ramesh Chand, PW21 the police had swung into action on account of an information having been received regarding a woman having set herself on fire. We have disbelieved and discarded the prosecution case as to the injured Janak Kumari having made any declaration to PW5 Shivcharan ASI between 7.30 and 8 a.m. That being so, at the time when Ramesh Chand, SI interrogated Janak Kumari and recorded her statement till then he had not received any information from anyone else as to the injured Janak Kumari having been set on fire by anyone else than herself, that is to say, by her husband, mother-in-law and sister-in-law. On the contrary he admits that when he visited the place of the incident upon an information having been conveyed to him by the PCR van he made enquiries from the neighbours and the persons of neighbourhood present at the scene of the incident who were 3 or 4 persons in number, none had told him of Janak Kumari having been set on fire by the accused persons. When he recorded the statement of Janak Kumari the doctor attending on her was not present in close vicinity of Janak Kumari or this witness but he was certainly present in the burns ward. He did not have the statement Exhibit PW21/A attested by the doctor. The statement is a detailed statement and purports to have been signed by the deceased. Below the statement Ramesh Chand, SI has made an endorsement that the doctor (not named) had given in writing patient is fit for giving statement. However, such an endorsement made by any doctor has not been proved before the Court.\n23. Ramesh Chand SI states that at the time of recording the statement Glucose drip was being given to Janak Kumari and the signature was obtained when she was lying on the bed.\n24. We have already noted hereinabove that at 9 a.m., before the statement Exhibit PW21/A was recorded by Ramesh Chand, SI the patient had reached under the care of Doctor I.L. Tiwari who had kept her on heavy sedation on account of 85% deep burns and dehydration while her condition was constantly deteriorating. Dr. B.N. Reddy, PW 12 opined that neck, mouth and lips of the deceased were burnt. The records of the burn ward show that the hands of the injured were also burnt and the skin of the hands had peeled off. In such condition of the injured we have grave doubts, as the trial court has also expressed, if the injured could have made a detailed statement to Ramesh Chand, SI and could have put her signature on the same. The learned Sessions Judge, who tried the case, has arrived at the following finding, supported by reasons, based on detailed evaluation of evidence :\n25. Until and unless it is proved that at the time of the making of the dying declaration the deceased was also mentally sound and physically fit to make a statement the dying declaration cannot be accepted. It is clear from the evidence on record that at the time of the making of the dying declaration Exts. PW21/A and PW16/A the deceased Smt. Janak Kumari was neithter mentally nor physically fit to make any statement.\n26. The learned Sessions Judge has in his judgment noted the question which remained unanswered, as under:\n27. Ever since Smt. Janak Kumari was taken to the hospital her general condition remained poor and it continued to deteriorate till she ultimately died by the noon of 8 March 1982. Under these circumstances how could Smt. Janak Kumari make her dying declarations Exts. PW21/A & PW16/A. Then her hands were burnt and the skin of the hands had peeled off, then how could she have signed Exts. PW16/A and PW21/A. So on account of all these facts the dying declarations Exts. PW16/A & PW21/A also do not inspire confidence.\n28. Having ourselves evaluated the evidence independently we do not feel inclined to disagree with the finding of the trial court in this regard especially in view of the absence of medical evidence showing that Janak Kumari was in a fit physical and mental condition between 9 and 10 a.m. on the date of the incident to make the statement.\n29. Fourth dying declaration - recorded by PW16 Ajit Shrivastava, SDM between 1.30 and 1.45 p.m. vide Exhibit P.W.16/A.\n30. According to Ajit Shrivastava he was working for one month as Sub-Divisional Magistrate (SDM). He was holding his court when SI Ramesh Chand came to him in his court and requested him to record the statement of Janak Kumari. There was no request made in writing. It was the first and the last dying-declaration recorded by him till the date of his examination before the Court. He had not recorded any other dying-declaration in any case at the request of the police. Ajit Shrivastava admitted that Ramesh Chand, SI often used to come to him. To test the veracity of the witness he was confronted with the fact that 7 March 1982 was a Sunday and he was not in the court room but at his home and therefore what was being stated by him was false. To this suggestion the witness responded by saying that he could not say if it was Sunday because sometimes he had to go to the court even on Sundays. He was again asked if he could tell any reason for his visit to court on 7 March 1982, a Sunday? The answer was in negative. However, he hastened to add that it was perhaps to clear the pending work. The fact remains that the statement Exhibit PW 16/B recorded by this witness is again a detailed one and in a narrative form. The narration of the incident is generally on the same lines as is to be found contained in the statement Exhibit PW21/A recorded by Ramesh Chand, SI. At the end of the statement Shri Ajit Shrivastava records as the words of Janak Kumari - I have given this statement in my full consciousness and senses. Read over to me and found correct. This statement, Exhibit PW 16/A also does not bear any endorsement by any doctor either in charge of the burns ward attending on the victim or present in the hospital verifying the physical and mental condition of the injured so as to make the statement.\n31. While discussing the third dying declaration, Exh. PW 21/A, we have already stated that we have on the material available on record grave doubts if the injured Janak Kumari was in a position to make any statement or to sign the same between 9 & 10 a.m. The same observation applies with added force to the statement Exhibit PW16/B which is said to have been recorded between 1.30 and 1.45 p.m. on the same day. Added force - we say - because the material available on record shows that the condition of the injured Janak Kumari was continuously deteriorating and obviously between 1.30 and 1.45 p.m. she must have been in a condition more worse than what she was in between 9 and 10 a.m.\n32. According to the dying declaration Exhibit PW21/A there was a scuffle between the deceased and the accused Om Prakash on the night preceding the date of the incident while according to the dying declaration Exhibit PW16/A such scuffle had taken place in the morning soon before the victim was set on fire. The recital that the statement was being given (by the injured) in full consciousness and senses recorded in Exhibit PW16/A is belied by the medical evidence. These are additional factors casting doubt on credibility of dying declaration Exh. PW16/A.\n33. Absence of medical evidence to show if Janak Kumari was in a fit state of mind and physical condition to have at all made a statement and signed the same, doubtful setting of the place - court or home - wherefrom the inexperienced SDM accompanied the investigating officer to record the statement, inconsistency though a bit little with the earlier statement and prima facie unsustainable truth of some of the recitals contained in the statement do not permit the conscience of the Court to accept the dying declaration Exh. PW16/A as safe to act upon.\n34. Fifth dying-declaration (oral) - made to PW 3, Kishan Lal between 5.30 and 6 p.m. PW3, Kishan Lal is the brother of the deceased Janak Kumari. According to him, he having learnt of the incident reached the hospital at about 5.30 or 6 p.m. where Janak Kumari was admitted and on her enquiry the injured Janak Kumari revealed to him that her husband, mother-in-law and sister-in-law had poured kerosene on her and set fire unto her. He did not know that any offence was registered regarding the incident and was under investigation. Yet he did not try to contact, or give information to, the police which would have been his ordinary natural conduct on learning such ghastly incident having taken place with his sister. Kishan Lal admitted that he never informed to the police what was told to him by Janak Kumari. Such conduct of the witness is fatal to reliability and acceptance of any dying-declaration by the deceased having been made to him. Moreover, we also have grave doubts if Janak Kumari was in a position to speak and make statement to Kishan Lal at about 5.30 or 6 p.m.\n35. A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of heresay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances. [see Tapinder Singh Vs. State of Punjab - 1971 (1) SCJ 871 1970 Indlaw SC 323]. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das Vs. State of Rajasthan - AIR 1957 SC 589 1957 Indlaw SC 17 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh @ Surendra Singh Vs State of M.P.- AIR 1982 SC 1021 1981 Indlaw SC 16 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab - AIR 1983 SC 554 1983 Indlaw SC 82 this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 1981 Indlaw SC 49 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present.\n36. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer later on relied on as dying declaration. In Munnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199 1975 Indlaw SC 280, this Court observed - investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged. The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 1979 Indlaw SC 531 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.\n37. The principal accused Om Prakash had himself informed the police of the incident. In fact, he was the first to give any information relating to the incident to the police. Unfortunately, none of the accused could have escorted the victim to the hospital nor could remain present by her side as the case diary revealed (as has been noticed by the trial court) that the accused persons were arrested on the same day. The house of the accused persons which is the site of the incident is situated in a thickly populated locality in a narrow lane where the houses are located like a cluster. The neighbours must have collected soon at the place of the incident. This is borne out from the statement of Shiv Charan, ASI who had made on the spot inquiries. None of the neighbours has been examined excepting Trishla Kumari, PW1 to whom the injured Janak Kumari has not made any statement implicating the accused persons although she had the opportunity of doing so. We have also dealt with each of the five dying declarations to find out their worth. We have found the second dying declaration to be no dying declaration, the first and third ones having been made to police officers associated with investigation and also not worthy of credence. We have disbelieved the fifth dying declaration said to have been made to PW3, Krishan Lal. We have found it not safe to act on the fourth dying declaration said to have been made to a Magistrate as we entertain grave doubts if the injured Janak Kumari was in a position to make any statement at the time at which this fourth, as also the third and the fifth dying declarations are alleged to have been made. We have found some inconsistency between the statements said to have been made by the injured Janak Kumari and recorded as third and fourth dying declaration. We have also found that from the beginning there was an effort to develop a story of Janak Kumari having been attempted to be stragulated which story finds a mention in the record as prepared by Dr. Khanijau but which story has been found to be false. None of the five statements attributed to Janak Kumari and coming from the mouth of different witnesses has been held worthy of being accepted and acted upon as dying declaration so as to form a safe basis to base conviction of the accused thereon. We find ourselves not persuaded to reverse the well-reasoned finding of not guilty recorded by the trial court and convert the same into a finding of guilty simply because the statements alleged to be dying declarations are five in number. Needless to say there is no other shred of evidence connecting the accused with the crime.\n38. It appears that the marriage between the accused Om Prakash and the victim Janak Kumari proved to be a failure and all efforts at restoring and re-establishing the matrimonial home had failed leading to utter frustration in the mind of Janak Kumari. She probably felt convinced in her mind that she had no other escape except to finish herself which course would also enable her avenging her grievance and settling scores with the accused persons whom she thought were responsible for spoiling her life and leading her into immense misery. She had indicated what was transpiring in her mind to Trishla Kumari, PW1. The possibility of her committing a suicide and implicating the accused persons cannot be ruled out in the facts and circumstances of the case as available on record.\n39. For the foregoing reasons, the appeal is dismissed. The judgment of acquittal, along with the findings recorded by the trial court, is maintained.\n"}
+{"id": "cmc5F9HpUl", "title": "", "text": "A. Shankar v State Of Karnataka\nSupreme Court of India\n\n9 June 2011\nCRIMINAL APPEAL NO. 1006 of 2007\nThe Judgment was delivered by : Balbir Singh Chauhan, J.\n1.   This criminal appeal has been filed under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 against the judgment and order dated 28.2.2007 of the High Court of Karnataka, Bangalore, in Criminal Appeal No.1069 of 2000 by which the High Court has reversed the judgment and order dated 31.10.1998 passed by the XVth Additional City Sessions Judge, Bangalore, in Sessions Case No.366 of 1996, acquitting the appellant of the charges under Sections 302 and 307 of the Indian Penal Code, 1860 (hereinafter called 'IPC').\n2.   Facts and circumstances, as per the prosecution case giving rise to this appeal had been that the law was put into motion by younger brother of the deceased, Shankara (PW.8), who lodged a complaint orally on 26.3.1996 that the appellant came to the Barber Saloon of Murthy Prasad, deceased, on 25.3.1996 at about 8 p.m. and demanded Rs.150/- from the deceased. Since the deceased did not give the money demanded, the accused got angry and threatened that he would take care of him later. Appellant accused again came back at 9.30 p.m. to the shop of the complainant, sought shelter therein, had food, and slept there with the deceased and the complainant. At about 2 a.m. the complainant heard sounds and after being awaken he saw that the appellant was hitting his elder brother with a knife on the chest and on shouting of the complainant the appellant hit him also with the same on the left abdomen and hands and ran away. Murthy Prasad died of assault and the complainant got injured, and was taken to the hospital for treatment.\n3.   On the basis of the said oral complaint, an FIR No.82/96 dated 26.3.1996 (Ext.P4) was recorded. The investigation ensued and the appellant was arrested on 31.3.1996. After conclusion of the investigation, charge sheet was filed against the appellant and he was put to trial under Sections 302 and 307 IPC. In order to prove the guilt of the appellant, prosecution examined 17 witnesses. The appellant was examined under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as \"Cr.P.C.\") wherein apart from denying the evidence against him given by the witnesses directly, he also denied to have gone to the Saloon of the deceased at all as alleged by the prosecution.\n4.   After considering the entire evidence on record, the Trial Court came to the conclusion that prosecution failed to prove beyond reasonable doubt that the appellant had committed murder of Murthy Prasad or made an attempt to kill the complainant Shankara (PW.8). Thus, vide judgment and order dated 31.10.1998, the appellant was acquitted of the charges under Sections 302 and 307 IPC.\n5.   Being aggrieved, the State of Karnataka preferred Criminal Appeal No.1069 of 2000 which has been allowed by the High Court convicting the appellant under Section 302 IPC for committing the murder of Murthy Prasad, deceased and awarding him life imprisonment. The appellant also stood convicted under Section 324 IPC for causing injuries to the complainant Shankara (PW.8) and has been awarded six months imprisonment and a fine of Rs.5,000/-. In default of depositing the fine to undergo simple imprisonment for a period of one month. Both the sentences have been directed to run concurrently. Hence, this appeal.\n6.   Shri Sanjay Mishra, learned counsel appearing for the appellant has submitted that the High Court has committed an error in interfering with the well reasoned judgment of acquittal by the Trial Court and relying upon the evidence on record while ignoring the material inconsistencies between the evidence of the witnesses; and medical and ocular evidence. No motive was proved by the prosecution to commit the offence. There had been an inordinate delay of 4 hours in lodging the F.I.R. as the murder was alleged to have been committed at 2 a.m. while the complaint was lodged at 6 a.m. on the same day, though the Police Station was at a distance of only one kilometre. There had been discrepancy relating to the seizure and kind of weapon used in the offence. Therefore, the appeal deserves to be allowed.\n7.   Per contra, Ms. Rashmi Nandakumar, learned counsel appearing for the State of Karnataka vehemently opposed the appeal contending that the High Court has rightly reversed the findings recorded by the Trial Court being the First Court of Appeal after appreciating the evidence properly. The Court below had misappreciated the material evidence of the witnesses. More so, the trial Court had failed to give due weightage to the evidence of injured witness, namely Shankara (PW.8). Hence, the appeal lacks merit and no interference is required.\n8.   We have considered the rival submissions made by learned counsel for the parties and perused the record.\n9.   The post mortem examination report dated 26.3.1996 revealed that following injuries were there on the person of Murthy Prasad:\n(1) Vertically placed incised wound over the front of tip of right thumb measuring 3 cm x 0-5 cms x 0-5 cms deep;\n(2) Incised wound over top of left shoulder measuring 2 cms x 0-5 cms x skin deep;\n(3) Incised wound over left side of chest situated 8 cms vertically below left arm fit, measuring 2 cms x 0-5 cms;\n(4) Incised wound over left side lower part of chest situated 23 cms below later 1/3rd of left collar bone, vertical measuring 2 cms x 0-5 cms x 5 cms, deep;\n(5) Incised wound over left side lower part of chest situated 20 cms below left arm fit, oblique measuring 2.5 cms x 0-5 cms x 0-5 cms, deep;\n(6) Incised wound over left side lower part of front of abdomen measuring 2.5 cms x 0-5 cms x 1 cms, deep;\n(7) Horizontally placed stab wound present over the left side of hip situated 3 cms behind and 2 cms below the level of left anterior iliac spine measuring 2.5 cms. x 2 cms x 9 cms deep, the front end is pointed and back end blunt, margins are clean cut, the wound is directed backwards, downwards, and to right by cutting sciatic nerve and underlying vessels edged clean cut;\n(8) Incised wound over left side upper part of neck situated 2 cms below middle of ramus of mandible, measuring 1 cms x 0-5 cms x 0-5 cms, deep;\n(9) Stab incised wound present over left side back of chest situated 12 cms below the level of 7th cervicle spine 5 cms to left of midline measuring 3 cms x 1.5 cms chest cavity deep. The post mortem report further revealed that so far as injury no.9 was concerned, the weapon had cut the skin and muscles of chest had entered the chest cavity in 5th intercostals space, and pierced the lower lobe of left lung on which it measures 2 cms x 0.5 cms x 0.5 cms deep. According to the opinion of the Doctor, the death was due to shock and haemorrhage as a result of the aforesaid injuries.\n10.   The medical examination report of complainant Shankara, aged 18 years dated 26.3.1996 revealed the following injuries on his person :\n(1) Incised wound seen on the left side of abdomen measuring 1- 1/2 cm x 0.5 cm x just below the last rib on the left side at mid clavicular line;\n(2) Incised wound seen on the front of right fore at lower 1/3rd measuring 1-1/2 cm x 1 cm, skin deep;\n(3) Incised wound seen on the medial side of left thumb, 2-1/2 cm x 1/2 cm;\n(4) Incised wound seen on the left upper arm on the detoid muscle measuring 1-1/2 cm x 1/2 cm skin deep;\n(5) Incised wound seen on the left cheek measuring 1-1/2 cm x 1/2 cm skin deep.\n11.   Dr. B.R.S. Kashyap (PW.5) who conducted post mortem examination on the body of Murthy Prasad explained in his deposition in the court that it was not normally possible to cause injuries to the deceased with weapon Ext.MO.1 if held with both of its arms together while inflicting the injuries. However, if the sharp edge and tip of the scissors is held open while assaulting, the injuries can be caused. So far as the evidence of Dr. H. Venkatesh (PW.6) who examined Shankara (PW.8) complainant is concerned, he deposed that injuries found on his person could be caused of sharp edged weapon. Thus, in view of the above, there could be no dispute that as per the opinion of Doctors, it was possible to cause the injuries found on the person of the deceased and the complainant with scissors in case the sharp edge and tip of the scissors is held open at the time of assault.\nMaterial Contradictions :\n(I) Evidence of Witnesses:\n12.  Murthyalappa (PW.2), and Smt. Ramanjanamma (PW.3), the brother-in-law and sister of the deceased, respectively, deposed in the Court that they made a visit to the hospital where Shankara (PW.8) had been admitted and he had told to both of them that the appellant had killed Murthy Prasad, and caused injuries to him. Though Shankara (PW.8) complainant himself deposed in his examination-inchief that he came to know about the death of his brother only after being discharged from the hospital living therein as indoor patient for 15 days.\nShankara (PW.8), while lodging the complaint stated as under:\n\"On 25.3.1996 at about 8.00 P.M. the accused younger brother of Rudresh came to the Super Hair Style Shop of the deceased, elder brother of the complainant viz., Murthy Prasad and demanded Rs.150/- from him. Since he did not give the money demanded, the accused got angry and threatened that he would take care of him later. He once again came back at 9.30 P.M. to the shop of the complainant and with intent to murder the complainant and his elder brother, he sought shelter in the shop, had food and slept there itself.\"\nBut, in the court Shankara (PW.8) deposed:\n\"Last year on one day at about 8 p.m. the accused came to our saloon and enquired me about my brother. I informed the accused that my brother had gone out and he will be returning soon. Accused stayed in my saloon only. My brother Murthy Prasad returned to Saloon at about 9 p.m. Myself, my brother and accused took meals in the saloon and slept in the saloon.\"\n13.  Thus, it is evident that Shankara (PW.8) in his deposition in court did not mention about the first visit of the appellant and demand of Rs.150/- from Murthy Prasad.\n(II) Medical Evidence & Ocular Evidence: As per the medical evidence, injury nos.7 and 9 found on the person of Murthy Prasad deceased had been fatal and could be caused with the pointed part of the scissors, if used holding sharp edge and tip of the scissors open, at the time of assault.\n14.  In his oral complaint on 26.3.1996, Shankara (PW.8) had stated that the accused caused the injuries with knife. He deposed in the Court:\n\"Accused was stabbing my brother with a scissors. He stabbed on the stomach of my brother... Accused also stabbed me from the scissors on my left side of stomach, on right hand and on the left shoulder...Now I see the scissors M.O.1, the accused assaulted me and my brother with M.O.1\".\n(Emphasis added) Thus, it is apparent from the above that Shankara (PW.8) was not sure as to whether injuries were caused by knife or scissors. No explanation came forward as to whether the complainant, Shankara (PW.8) was capable to understand the distinction between knife and scissors.\n(III) Identity of the accused:\n\"As per Ramanjanamma (PW.3), brother of one Rudresh murdered Murthy Prasad. According to Sriram (PW.4), the brother of Umesh assaulted them: \"I do not know who is brother of Umesh. I do not know the accused.\" Shankara (PW.8) refers to the accused as brother of Rudresh. Abdul Suban (PW.17) stated that \"I tried to ascertain and search for Rudresh but he was not found. I did not enquire the father of the accused and his family members about Rudresh\".\n(IV) FSL Report:\n15.  As per Abdul Suban (PW.17), he sent all the seized articles including M.O.1 for FSL examination through Police Constable 2313 on 2.6.1996 and received back on 7.6.1996. However, FSL report was not produced before the Court. Abdul Suban (PW.17) has admitted that he received the Post Mortem report and FSL report and after completing the investigation he submitted the charge sheet on 27.6.1996. No explanation has been furnished as to why this FSL has not been produced before the court as it was necessary to ascertain as to whether M.O.1 was actually used in the commission of offence or not.\n(V) Recovery of weapon:\n16.  As per Abdul Suban (PW.17) the accused in the presence of panchas had seen the occurrence and also took out a scissors hidden under a stone slab near the saloon. He seized the scissors M.O.1 in the presence of Panchas under Panchnama Exh. P-8. As per the evidence of Ganganarasaiah (PW.9) the scissors was in the bucket which was filled with water. The bucket was inside the shop. The police alone saw it. Narayanaswamy (PW.15) stated that the accused told him that he committed the offence and he took out a scissors kept under a stone slab. Police seized the same and wrapped in a cloth and drawn a mahazar. He signed the mahazar and stated that M.O.1 was the scissors seized by the police.\n17.  The trial Court has taken into consideration each and every discrepancy/contradictions referred to hereinabove. However, the High Court has dealt with the case observing that presence of Shankara (PW.8) at the place of occurrence has not been disputed. Injuries found on his person are also supported by the evidence and particularly other statements made by Shankara (PW.8) in the Court which were worth acceptance regarding his staying outside for some time. The High Court came to the conclusion that there was nothing unnatural in his statement. However, the High Court did not deal with the contradictions referred hereinabove.\n18.  The contradiction in the statement of Shankara (PW.8) in the court as compared with his statement before the police under Section 161 Cr.P.C. also demolishes the aspect of motive.\n19.  There was delay in lodging the FIR. In the present case, the alleged occurrence took place at 2.00 p.m. and the police station was hardly at a distance of 1 K.M. from the place of the occurrence and Shankara (PW.8) had never deposed that he had become unconscious, the delay has not been explained.\n20.  Abdul Suban (PW.17), the I.O. consistently deposed that he was searching for Rudresh. Admittedly, even as per the prosecution, author of the crime had been Shankar-appellant and not his brother Rudresh. We fail to understand as for what reason the I.O. was trying to apprehend the brother of the accused.\n21.  In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. \"Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.\"\n22.  Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. \"Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.\" The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152 2008 Indlaw SC 1638; Arumugam v. State, AIR 2009 SC 331 2008 Indlaw SC 1620; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334 2009 Indlaw SC 223; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287 2010 Indlaw SC 963; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191 2010 Indlaw SC 551; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324 2011 Indlaw SC 169; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280 2010 Indlaw SC 944]. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106 1998 Indlaw SC 783).\n23.  If the case in hand is examined in the light of the aforesaid settled legal proposition, the prosecution has definitely made an attempt to establish the presence of the accused in the shop and Shankara (PW.8) is the only eye witness. His presence also cannot be doubted in view of the fact that he himself got injured in the incident.\n24.  However, the question does arise as under what circumstances he has told his sister and brother-in-law that his brother has been killed by accused-appellant when in his substantive statement before the court he has deposed that he came to know about the death of his brother after being discharged from the hospital and he remained there as indoor patient for 15 days. Such a statement made in the court also creates a doubt as to whether he could be the author of the complaint for the reason, that in the complaint lodged by him on 26.3.1996 he has stated that his brother had died. Similarly, non-production of the FSL report in the court by the prosecution is fatal as in absence thereof it was difficult for the court to reach to the conclusion as to whether the offence has been committed with M.O.1. More so, after the incident, Abdul Suban (PW.17) had been busy in searching Rudresh, brother of the accused and he made no attempt to search the accused. These factors clearly indicate that investigation has not been conducted fairly.\n25.  It is settled legal proposition that in exceptional circumstances the appellate court under compelling circumstances should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse, i.e., the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case.\n26.  While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence. (Vide: Abrar v. State of U.P., (2011) 2 SCC 750 2010 Indlaw SC 1082; and Rukia Begum & Ors. v. State of Karnataka, (2011) 4 SCC 779 2011 Indlaw SC 219).\n27.  In view of the above, we are of the considered opinion that the High Court committed an error in recording the finding of fact that the prosecution succeeded in proving the case beyond reasonable doubt. The High Court failed to meet the grounds pointed out by the trial Court discarding the case of prosecution and thus, the findings of fact recorded by the High Court remain perverse.\nIn view of the above, the appeal succeeds and is allowed.\n28.  The judgment and order of the High Court dated 28.2.2007 is hereby set aside and judgment and order of the trial Court dated 31.10.1998 passed in Sessions Case No.366 of 1996 is restored. The appellant has been enlarged on bail by this Court vide order dated 26.7.2010.\nThe bail bonds stand discharged.\nAppeal Allowed\n"}
+{"id": "2ceN59UAgN", "title": "", "text": "Mafabhai Nagarbhai Raval v State of Gujarat\nSupreme Court of India\n\n14 August 1992\nCr.A. No. 317 of 1981 (Cr.A. No. 148 of 1979, D/- 30 January 1981 and 2 February 1981 (Guj).)\nThe Judgment was delivered by: K. JAYACHANDRA REDDY J.\n1.  This is an appeal under Section 379, Cr.P.C. read with Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. The sole accused is the appellant before us. He was tried for an offence punishable under Section 302, I.P.C. The gravamen of the charge was that on the night of 9-7-78 at mid night he poured kerosene oil on Bai Gauri the deceased in this case and set fire as a result of which she died on the next day. The case rested mainly on the dying declarations recorded by the Doctor and the Magistrate. The learned Sessions Judge was not prepared to act upon the dying declarations and accordingly acquitted the appellant. The State preferred an appeal. The High Court allowed the appeal and convicted the appellant under Section 302, I.P.C. and sentenced him to undergo imprisonment for life. Hence the present appeal.\n2.  Learned counsel for the appellant submitted that the deceased had serious burns on her and it would not have been possible for her to make dying declarations and that P.W. 2 the Doctor who recorded the first dying declaration has not truly recorded the same in the words of the deceased and that his evidence itself shows that the deceased would not have been in a position to make the declaration. It is also his submission that a P.W. 3 the Executive Magistrate who recorded the second dying declaration did not record the same in the form of questions and answers and the statement recorded by him cannot be taken to be the true version alleged to have been given by the deceased.\n3.  The deceased aged about 40 years was the widow of one Savaji and was living in a wooden cabin near the maternity hospital in Harij and she was maintaining herself by doing casual work in the maternity hospital. She developed illicit intimacy with the accused. Her grown-up Children were dissatisfied with her character and other members of her community were also dissatisfied. Since then she was living alone in the wooden cabin near the maternity hospital. There was some quarrel between the accused and the deceased. At about midnight on 9-7-78 the accused went to her cabin and sprinkled kerosene oil on her and set fire to her clothes and then fled. The deceased ran from her cabin inside the compound of the maternity hospital raising cries.\n4. One Patavala Motibhai came there and put a quilt on her body. The said Patavala Motibhai went and informed the Medical Officer, P.W. 2 of the Government Hospital who immediately ran to the spot and separated the burnt clothes from her body and gave first aid. He questioned as to who had set fire and the deceased replied that the accused was the culprit. P.W. 2 recorded her statement which is the first dying declaration in the case P.W. 2 shifted her to the hospital and he himself went to the police station and gave a report. The police Jamadar also recorded her statement in the hospital which is yet another dying declaration in the case. By that time information was sent to the Taluka Magistrate with a request to record the dying declaration. P.W. 3 the Taluka Magistrate went to the spot and he also recorded the dying declaration. The deceased died in the early morning of 10-7-78.\n5.  Inquest was held over the dead body and post-mortem was conducted by P.W. 2. The learned Sessions Judge, in our view, has unnecessarily doubted the veracity of P.W. 2, the Doctor. He observed that the moment the flames had been seen by the deceased on her person she must have received a severe shock and the same must have become \"graver and graver\" and in that state of mind it is not believable at all that the deceased could keep balance of her mind and full consciousness so as to make the statement. With this initial doubt the learned Sessions Judge proceeded to examine the evidence of the Doctor. The Doctor stated that in some cases mental shock immediately does not develop and that in the instant case the deceased developed the mental shock for the first time at 4 a.m. Thereafter it gradually increased. The learned Sessions Judge called it irresponsible statement. It is in the medical evidence that 99% of the body of the deceased was affected by extensive burns and that the clothes of the deceased were also burnt to ashes.  Therefore, the learned Judge thought that it was not at all possible to believe that the lady might have developed the shock only at 4 a.m. and he gave his firm opinion that the moment the deceased had seen the flames she must have sustained mental shock and these circumstances convinced him that right from the very beginning she must have been under a mental shock and on that ground the learned Judge disbelieved the Doctor. Likewise he has pointed out certain circumstances purely based on surmises and on his inferences. It is needless to say that the Doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion to that of the Doctor.\n6.  On the same process of reasoning the learned Sessions Judge has also doubted the evidence of P.W. 3, the Executive Magistrate. The learned Judge found fault with the procedure adopted by the Executive Magistrate namely that he did not record the statement in the form of questions and answers. The learned Judge, in our view, without any basis reached the conclusion that the Executive Magistrate did not record the dying declaration exactly in the words stated by the deceased. There is third dying declaration recorded by the police Jamadar but we need not consider the same.\n7.  It must be noted that P.W. 2 recorded the statement within five minutes and noted the time also in the statement. The High Court has rightly pointed out that both the dying declarations are true and voluntary. It is not the case of the defence that she gave tutored version. The entire attack of the defence was on the mode of recording the dying declarations and on the ground that the condition of the deceased was serious and she could not have made the statements. On these aspects as noted above, the evidence of the Doctor is relevant and important. We have gone through the evidence of the Doctor as well as that of the Executive Magistrate. We find absolutely no infirmity worth mentioning to discard their evidence.\n8. It therefore emerges that both the dying declarations are recorded by independent witnesses and the same gives a true version of the occurrence as stated by the deceased. The dying declarations by themselves are sufficient to hold the appellant guilty. The High Court has rightly interfered in an appeal against acquittal. The appeal is accordingly dismissed.\nAppeal dismissed.\n"}
+{"id": "zgEz6cwB61", "title": "", "text": "Abrar v The State Of Uttar Pradesh\nSupreme Court of India\n\n16 December 2010\nCriminal Appeal No. 1668 of 2005\nThe Judgment was delivered by : H.S. Bedi, J.\n1.  At about 9.30 p.m. on the 3rd of April, 1979, Mohd. Ashfaq, a practicing Advocate, residing in Mohalla Kapoorpur of Ghazipur town, was returning home after visiting Suhasini Talkies. As he reached near the house of Saeed Khan, he found the four accused, Mukhtar, Abrar, Mateen and Usman, all armed with country made pistols, standing near the door of the house. Mohd. Ashfaq recognized them in the light of the torch that he was carrying. Apprehending danger, Mohd. Ashfaq ran towards his house which was close by, raising an alarm. The accused chased him shouting at each other that he should be done away with on which Abrar, the appellant herein, fired at him from the rear. The alarm raised by the victim attracted Muzur PW-6, Durga Ram PW-7 and one Bissu to the place of incident and they too saw the shot being fired.\n2. As per the prosecution story, the attack on the victim was on account of old enmity and litigation between him and the accused Mukhtar and Abrar. Mohd. Ashfaq was immediately rushed to the District Hospital, Ghazipur where he was attended to by Dr. S.N.Pandey PW-8 who was then on emergency duty. He found multiple gun shot injuries over the left side of the back in an area 12 cm x 14 cm, 9 in number measuring 1 cm x 1 cm, though there was no blackening or tattooing.\n3. In the meanwhile, Ram Singh PW-5, Advocate and Mohd. Ashfaq's junior, reached the hospital at 9.45 p.m. on getting information of the incident. Mohd. Ashfaq thereafter dictated a report to him and after it had been signed by him, it was taken to the Police Station and a FIR under Section 307 of the IPC was registered by Head Constable Lalta Yadav. A memo was also received in the Police Station at 10.35 p.m. from Dr. S.N.Pandey about Mohd. Ashfaq's admission on which Sub-Inspector Ram Hit Shukla PW-9 reached the hospital at 10.50 p.m. and recorded another statement of Mohd. Ashfaq. A third dying declaration was recorded the same night by the Tahsildar, Vir Bahudar Prasad PW-2, at 11.50 p.m. after taking a certificate from the Doctor that the injured was fit to make a statement. Mohd. Ashfaq died the next day in the hospital at Varanasi and a case under Section 302 of the IPC was thereupon entered against the accused. The dead body was also subjected to a post-mortem examination and it revealed much the same injuries as detected at the time of the medical examination in the District Hospital, Ghazipur but on the opening of the body the large and small intestines and the kidneys were found to be lacerated. The doctor opined that the death had occurred due to shock and haemorrhage resultant to abdominal injuries. The accused were, accordingly, arrested and ultimately brought to trial for an offence punishable under Section 302/34 of the IPC.\n4.  The prosecution in support of its case, relied primarily on the evidence of Dr. A.K. Dwivedi PW-1, who had conducted the post-mortem examination, Executive Magistrate-cum- Tahsildar Vir Bahadur Prasad PW-2, Ram Singh, Advocate, PW-5, Mujur PW-6 and Durga Ram PW-7, the two eye witnesses named in the FIR, (but who did not support the prosecution), Dr. S.N.Pandey PW-8, the doctor of the District Hospital who had certified as to the mental condition of the victim at the time of the recording of the dying declaration by the Tahsildar, and the investigating officer Sub-Inspector Ram Hit Shukla PW-9. The accused were then questioned under Section 313 of the Cr.P.C. They pleaded false implication due to enmity.\n5.  The trial court observed that as the two eye witnesses had turned hostile, the case rested exclusively on the three dying declarations of the deceased in the form of the FIR, the statement of the deceased recorded by the investigating officer under Section 161 of the Cr.P.C. and the statement recorded by the Tahsildar. The trial court held that as there were several discrepancies inter-se these three statements, they could not be relied upon and accordingly taking the murder as a blind one, acquitted the accused. The matter was thereafter taken in appeal by the State Government to the High Court.\n6. The High Court has, by its judgment, which is now impugned before us, reversed that of the trial court holding that the so called discrepancies were insignificant that they could occur in any statement recorded in Court and the discrepancy with regard to the presence or otherwise of a light which figured in one statement and did not figure in the other was of little or no consequence in the facts. The Court then examined the dying declarations and observed that in so far as accused Mukhtar, Mateen and Usman was concerned, no direct and positive role had been assigned to them in the three dying declarations of the deceased and it was the single shot attributed to Abrar, the present appellant, which had killed the deceased.\n7. The Court also held that if Mukhtar, Mateen and Usman had also been carrying country made pistol, they would in normal circumstances, have used them as well. The Court also observed that there was no bar in relying only on a part of a dying declaration as the only test was the test of reliability. The Court observed that the third dying declaration had been recorded by the Tahsildar after he had taken a certificate from the doctor that Mohd. Ashfaq was fit to make a statement. The Court also held that the statement given in the dying declarations that the deceased was carrying a torch by which he had been able to identify the accused was to be accepted, as he was an educated man and would ordinarily be expected to carry a torch.\n8. It was also observed that as the incident had happened in Ghazipur, which was a District Headquarters, street lights were also available as was clear from the evidence as well as the site plan. The High Court, accordingly, maintained the acquittal of Mukhtar, Mateen and Usman, but allowed the appeal with respect to Abrar, the appellant herein. He was, accordingly, sentenced to imprisonment for life under Section 302 of the IPC.\n9.  Mr. Quadri, the learned counsel for the appellant has raised several arguments before us during the course of hearing. He has pointed out that in the background that the two eye witnesses had turned hostile and had not supported the prosecution, the only evidence against the appellant, were the three dying declarations and as these were discrepant in material particulars, no reliance could be placed on them as well with the result that there was no evidence against the appellant.\n10. He has also submitted that it would not have been possible for the deceased to have recognized the four assailants as there was no evidence to show that he was either carrying a torch or there was any electric light available at the site where he had been shot.\n11.  The learned counsel for the State has, however, supported the judgment of the High Court by pointing out that the dying declarations were categorical inasmuch that the four accused had been named in each one of them and that three accused who had been acquitted had got the benefit of doubt only on the ground that no shot had been fired by them. It has been submitted that there was in any case absolutely no reason to discard the dying declaration recorded by the Tahsildar at 11.50 p.m. after he had taken a certificate from the doctor that the victim's fitness to make a statement.\n12.  We have heard the learned counsel for the parties very carefully. It has rightly been pointed out by the learned counsel for the appellant that the entire prosecution story would depend on the dying declarations. It must be borne in mind that all three dying declarations, the first one which formed the basis of the FIR, the second recorded by the ASI as a statement under Section 161 of the Cr.P.C. and a third recorded by the Tahsildar are unanimous as all the accused find mention therein.\n13. The High Court, has by way of abundant caution, already given the benefit to three of the assailants on the plea, that they, though armed, had not caused any injury to the deceased. The motive too has also been established as there appeared to be deep animosity between the parties and that the accused Abrar, the appellant had, in fact, appeared as a witness in several cases in which Mohd. Ashfaq or his son were the accused. It is true that there are some discrepancies in the dying declarations with regard to the presence or otherwise of a light or a torch. To our mind, however, these are so insignificant that they call for no discussion.\n14. It is also clear from the evidence that the injured had been in great pain and if there were minor discrepancies inter-se the three dying declarations, they were to be accepted as something normal. The trial court was thus clearly wrong in rendering a judgment of acquittal solely on this specious ground. We, particularly, notice that the dying declaration had recorded by the Tahsildar after the Doctor had certified the victim as fit to make a statement. The doctor also appeared in the witness box to support the statement of the Tahsildar. We are, therefore, of the opinion, that no fault whatsoever could be found in the dying declarations.\n15.  The prompt lodging of the FIR is another circumstance in favour of the prosecution. The incident happened at 9.30 p.m. on the 3rd of April, 1979 and the FIR was recorded at 10.30 p.m. i.e. within an hour of the incident under Section 307 of the IPC. We, therefore, find no merit in the appeal. It is, accordingly, dismissed.\nAppeal dismissed\n"}
+{"id": "YkBzPoBrUB", "title": "", "text": "Babu Ram and Others v State of Punjab\nSupreme Court of India\n\n5 March 1998\nCr.A. No. 121 of 1991 (From the Judgment and Order Dt. 29 November 1990 of the Punjab and Haryana High Court in Cr. As. Nos. 138-DBA of 1989 and 389-DB of 1988)\nThe Judgment was delivered by: NANAVATI, J.\n1. The three appellants were tried in the Court of Sessions, Bhatinda in Sessions Case No. 73 of 1987 for the offence punishable u/s. 302 read with S. 34 IPC. The charge against them was that Appellant 2-Krishna Devi, the mother-in-law of Santosh Rani, poured kerosene on her and Babu Ram, the father-in-law, threw a lighted matchstick on her and when Santosh Rani was trying to run out of the room, her husband - Rajinder Kumar - Appellant 3 had tried to bolt the door. It was also the prosecution case that all the three had set her on fire because they felt that sufficient dowry was not given to her by her parents.\n1.  The defence of appellant-Babu Ram was that he was not in the house at the relevant time as he had already left at about 8.30 a.m. for the shop in which he was working. Krishna Devi's defence was that she was washing clothes in the courtyard of their house and was not present in the room on the first floor where the incident of burning had taken place. The defence of the husband was that he was taking a bath on the ground floor at that time.\n2.  The trial court believed the pleas of Babu Ram and Krishna Devi but disbelieved the explanation of Rajinder Kumar. It, therefore, acquitted Babu Ram and Krishna Devi but convicted Rajinder Kumar for the offence punishable u/s. 302 IPC.\n3.  Rajinder Kumar filed Criminal Appeal No. 389-DB of 1988 before the High Court challenging his conviction. The State also filed Criminal Appeal No. 138 of 1989 challenging the acquittal of Babu Ram and Krishna Devi. Both the appeals were heard together by the High Court and by a common judgment they were disposed of. The High Court confirmed the conviction of Rajinder Kumar and also set aside the acquittal of Babu Ram and Krishna Devi as it held that both the dying declarations made by Santosh Rani were true and there was no good reason to disbelieve them.\n4.  Aggrieved by their conviction, all the appellants have filed this appeal. It was submitted by the learned counsel for the appellants that Santosh Rani could not have made the dying declaration as she could not have been in a fit state of mind as she had received 60% burns and was given an injection of morphine about an hour before her dying declaration was recorded.  However, this contention cannot be accepted in view of the categorical evidence of the doctor who has stated that she was in a fit state of mind when she made the statement. The Judicial Magistrate, who recorded the dying declaration, has also stated that he had enquired from the doctor whether she was in a fit state of mind and after Doctor Garg certified her to be so and finding her fit he had recorded the statement.\n5.  We, therefore, see no reason to doubt the genuineness of the dying declaration Ex. PG/1. The second dying declaration Ex. PH was recorded by ASI Jagdish Singh, sometime after the dying declaration Ex. PG/1 was recorded by the Judicial Magistrate. In that dying declaration also, Santosh Rani had given the same version. In fact, it was recorded as the first information report and subsequently treated as dying declaration after she had died. We are, therefore, of the opinion that the High Court was right in relying upon both the dying declarations.\n6.  In the two dying declarations, what Santosh Rani had stated was that her mother-in-law had poured kerosene over her and the father-in-law had thrown a lighted matchstick and set her on fire. The only part stated to have been played by the husband was that when she was trying to go out of the room, he had attempted to bolt the door so as to prevent her from going out of the house. Therefore, even though after accepting the two dying declarations as true, it cannot be said with reasonable certainty that the husband was also a party to the commission of the offence. The version of the husband was that at the time of the incident, he was taking a bath on the ground floor.\n7. It, therefore, appears that on coming to know that something had happened on the first floor, he went there and seeing her in flames, he had tried to bolt the door with a view to prevent the outsiders from coming to know about the incident. Nothing else was alleged against the husband. The evidence against the husband was thus not sufficient to warrant his conviction u/s. 302 read with S. 34 IPC. This aspect has been overlooked by the High Court.\n8.  We, therefore, dismiss the appeal of Babu Ram and Krishna Devi and allow the appeal of Rajinder Kumar. Appellant Rajinder Kumar is acquitted of the charge levelled against him and his bail bonds are ordered to be cancelled. Appellants Babu Ram and Krishna Devi were also released on bail during the pendency of the appeal. Their bail is cancelled and they are ordered to surrender to custody to serve out the remaining part of the sentence.\nAppeal partly allowed.\n"}
+{"id": "Xoblu17rNy", "title": "", "text": "Govindappa and others v State of Karnataka\nSupreme Court of India\n\n11  May  2010\nCr.A. No. 1469 of 2008\nThe Judgment was delivered by: P. Sathasivam, J.\n1. This appeal is directed against the final judgment and order dated 04.10.2007 passed by the High Court of Karnataka at Bangalore in Criminal Appeal No. 2573 of 2006 whereby the High Court partly allowing the appeal acquitted Laxmibai - A-3, the mother of the appellants herein and Bhagirathi-A-5, the grandmother of appellants and affirming the sentence passed by the trial Court convicted A-1, A-2 and A-4, appellants herein, for offences under Section 498-A/34 IPC and Section 302/34 IPC.\n2. The facts leading to the present appeal are as follows:\n2.1. The deceased - Renuka, was married to appellant No.1 about 10 years prior to the date of the incident. As per the prosecution case, on 10.12.2005, at about 12 noon, the appellants herein, along with their mother and grandmother tried to pour kerosene oil and lit fire on the deceased and because of that she raised hue and cry. On hearing her noise, five neighbours came and requested them not to do so but the accused persons asked them not to interfere in their family matter. Appellant No.3 poured kerosene on the deceased and appellant No.2 set fire in the presence of the neighbours. After pouring kerosene, the accused persons ran away from the house and the neighbours extinguished the fire and covered the deceased with blanket and had taken her immediately to the Government Hospital Bagalkot. At about 2.30 p.m., the Doctor (PW-7) informed the police and the Magistrate (Tehsildar) (PW 12) came to the Hospital at 4.30 p.m. and recorded the dying declaration of the deceased which is filed as Ex. P-9.\nThe Police Officer came to the hospital after 7 p.m. and taken the statement of the deceased which was written by Govindagowda Patil - PW-11, the neighbour, and FIR was registered at the police station at 7.15 p.m. which is Ex. P-10. The Investigating Officer, PW-17 came to the hospital at 8.30 p.m. and again tried to take the statement of the deceased but she was not in a position to give any statement and at 9.00 p.m., she died. The Inquest Panchnama was prepared at about 11.00 p.m. On 11.12.2005, post-mortem was conducted by the Doctor, PW-7, the report of which is Ex. P-5. The Investigating Officer filed the charge sheet on 23.01.2006. On 26.06.2006, the Fast Track Court, Bagalkot framed the charges against all the five accused persons under Sections 498A, 143, 147, 341, 302 read with S. 149 IPC.\nBy order dated 03.10.2006, the Fast Track Court, Bagalkot convicted all the five accused for the offence punishable under Sections 498A, 143, 147, 341, 302 read with S. 149 I.P.C. and sentenced them to undergo rigorous imprisonment for two years and also sentenced them to pay a fine of Rs.2000/- each in default, simple imprisonment for three months for the offence punishable under Section 498A read with S. 149 IPC and further convicted them for the offences punishable under Section 302/149 IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.10,000/- each in default, simple imprisonment for one year. All of them filed a Criminal Appeal being Appeal No. 2573 of 2006 before the High Court. By order dated 04.10.2007, the High Court by partly allowing the appeal acquitted A-3 and A-5 of all the charges leveled against them and affirming the sentence passed by the trial Court on A-1, A- 2 and A-4 convicted them for the offence punishable under Section 498A/34 IPC and Section 302/34 IPC. Aggrieved by the said order, accused Nos. 1, 2 and 4 have preferred this appeal by way of special leave petition.\n3. We have heard Mr. Sanjay Jain, learned counsel for the appellants-accused and Mr. Sanjay R. Hegde, learned counsel for the respondent-State.\n4. Points for consideration in this appeal are:\n\"(i) Whether the Trial Court was justified in convicting the appellants-accused A-1, A-2, and A-4 for offences punishable under Section 498A, read with S. 34 IPC and S. 302 read with S. 34 IPC?\n(ii) Whether the sentence imposed upon the appellants-accused is justifiable?\n(iii) Whether the High Court is right in confirming the conviction and sentence imposed on the appellants?\"\n5. In this appeal, we are concerned only with A-1, A-2 and A-4, since the other accused A-3 and A-5 were acquitted by the High Court.\n6. Apart from various materials in the form of oral and documentary evidence, the Trial Court accepted the evidence of eye-witnesses, namely, PW-3, PW-4, PW-5, PW-6 as well as Dr. Uma Kant PW-7 who treated Renuka, father of the deceased PW-9, one elderly person of the village PW-10 and Taluk Executive Magistrate PW-12 who had recorded the dying declaration of Renuka. Learned counsel for the appellants-accused pointed out that as per the prosecution, there were five witnesses present at the spot of incident, even before the victim was burnt, but none of them stopped the accused or tried to prevent the incident. He also submitted that the Trial Court and the High Court committed an error in relying upon the dying declaration recorded by PW- 12 since PW-12 has neither taken the certificate from the Doctor nor asked any question to verify the mental condition of the deceased Renuka, particularly, when she suffered 100% burns as shown in the postmortem report.\n7. At the foremost, let us verify the evidence of Dr. Uma Kant PW-7 who treated the injured Renuka when she was brought to the hospital. Though, he had stated that injured Renuka had sustained 100% burn injuries, at about 4.45 p.m., according to him, she was in a fit state of mind to give statement. Based on the statement of doctor PW-7, Taluka Executive Magistrate PW-12 recorded her statement in the presence of PW-7. It is further seen that after recording the statement, her left thumb impression was taken on the statement, the doctor PW-7 also subscribed his signature. It is true that in the cross-examination it was elicited that the tongue of the deceased was swollen and protruded and lips were burnt. Though this suggestion has been admitted by PW-7, the fact remains at the time of recording her statement PW-7 was satisfied that Renuka was in a fit condition and in a fit state of mind to make a statement. There is no reason to disbelieve the version of PW-7 who made initial treatment and he was very well present during the entire period of recording the statement (Ex. P-9). We hold that the evidence of PW-7 coupled with PW-12 are acceptable and support the case of the prosecution.\n8. Now, let us discuss the other eye-witnesses, first and foremost is PW-3. According to him, he is residing in a house adjacent to the deceased Renuka. He explained that he knew the family members of the appellants and the deceased. He also explained that sister-in-law of the deceased A-4 desired to give her elder daughter in marriage to A-1 and because of that Renuka was being assaulted by the appellants. He deposed that on 10.12.2005 at 12.00 o'clock he heard a crying sound from the house of the appellants. He along with others went to the house of the appellants and they found A-1, A-3 and A-5 holding Renuka. A-2 had a match-box in his hand and A-4 was holding kerosene can. Though he requested not to cause any harm to Renuka, according to him, the accused person were holding Renuka and sister-inlaw (A-4) poured kerosene. He further asserted that after setting fire by pouring kerosene accused A-1 to A-4 ran away from the scene of occurrence. Though, he also implicated A-3 and A-5 in the commission of offence but in the absence of further corroboration, the High Court has rightly acquitted them.\nHowever, there is no reason to disbelieve the evidence of PW-3 insofar as A-1, A-2 and A-4 appellants herein that they were responsible for the cause of the death of Renuka.\n9. The next witness is Govindappa PW-4, who witnessed the incident and partly supported the case of the prosecution. He explained how the deceased was humiliated and harassed by the appellants. According to him, this was narrated to him by Renuka during her lifetime and on several occasions she had gone to her native place due to illtreatment meted out to her at the hands of the appellants. He also explained that on 10.12.2005 at about 12.00 o'clock, when he was in his house, he heard cries from the house of the appellants. He rushed to their house and saw in the first floor Renuka was in ablaze. As rightly observed by the High Court, though, PW-4 did not support the entire case of prosecution and he had been treated as hostile witness, his evidence to the extent A-2 and A-4 participating in the commission of offence is proved. To this extent, the High Court has rightly accepted his testimony.\n10. The next eye-witness examined by the prosecution is one - Prakash PW-6. He explained how Renuka was humiliated and harassed by the appellants and on the relevant date and time and after hearing the cries he went to the first floor and found A-1, A-2 and A-5 were holding Renuka, A-4 was holding kerosene can and A-2 was holding a matchstick. He further deposed that the accused informed him that it is their family matter and none should interfere. At that time, A-4 poured kerosene on the body of Renuka and A-2 lighted match stick and lit fire to Renuka and immediately all the accused ran away from the scene of occurrence. As observed by the High Court, the evidence of PW-6 shows that A-4 poured kerosene and A-2 lit fire. The above statement of PW-6 finds support from the dying declaration Ex. P-7. His assertion that A-1 was holding Renuka also finds corroboration from the dying declaration Ex. P-9. In other words, the evidence of PW-6 clearly proves the participation of A-1, A-2 and A-4 in the commission of offence.\n11. Krishnappa, father of the deceased was examined as PW-9. He explained how his daughter was harassed and humiliated by the appellants. He also explained the desire of A-4 sister-in-law of the deceased to give her elder daughter to A-1. His evidence gets support from the dying declaration Ex. P-9 and to this extent the same is acceptable and rightly relied on by the High Court.\n12. An elderly person from the same village had been examined as PW-10 and he also narrated how the deceased Renuka was humiliated and harassed at the instance of the appellants.\n13. Other important witness is H.N. Nagaraj, PW-12, Taluka Executive Magistrate. He deposed before the Court that he had recorded the dying declaration of Renuka and the same was recorded after ascertaining her condition from PW-7 Dr. Uma Kant. After noting that Renuka was in a fit state of mind from Dr. Uma Kant PW-7 and she was in a position to make the statement, in the presence of PW-7 he recorded her statement on 10.12.2005 at 4.45 p.m. He denied the suggestion that Renuka was not in a position to make a statement.\n14. About dying declaration Ex. P-9, we have already adverted to the evidence of Dr. Uma Kant (PW-7), Government District Hospital Bagalkot. He explained that on 10.12.2005 at 2.20 p.m. injured Renuka w/o Govindappa Macha was brought with history of burns on the same day at 1.00 p.m. and she was admitted in the hospital and treatment was given to her. When Taluka Executive Magistrate (PW-12) came to the hospital at about 4.45 p.m., he enquired about the mental condition of the patient and whether she is capable of giving statement for which PW-7 informed that the patient is in a fit state of mind to give statement.\nAccordingly, the statement was recorded in his presence and then Renuka put her left thumb impression on the said statement and both the Doctor and the Magistrate also signed on the said statement. It is true that on the same night at 9.00 p.m. the injured expired due to burn injuries and post-mortem was conducted. On examination of body, he found superficial (epidermal burn) all over the body. Hyperaemic skin, singeing of hair present, burn 100% few small blisters are seen over the face containing serous ferrous fluids, skin is red and hyperaemic, singeing of hair present on head, duramater is leathery, brain is shrunken and yellow. All the internal organs were congested, coal particles are seen in nose, mouth, trachea and esophagus. Found smell of kerosene oil on her body. He is of the opinion that death is due to shock as a result of 100% burn, time since death is within 4 to 24 hours.\nAccordingly, he issued the post-mortem report as per Ex. P-5, which bears his signature. PW-7 has also denied the suggestion that the deceased-Renuka was in the semi-coma till the death.\n15. Though, it was argued that PW-12 Tahsildar has not obtained the certificate from the Medical Officer regarding condition of the deceased, that itself is not sufficient to discard the dying declaration (Ex. P-9). What is essential required is that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind. The certification by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. The evidence of doctor (PW-7) clearly shows that the deceased was in a sound state of mind while giving the statement before the Tahsildar (PW-12). In such circumstances, we are of the view that such a dying declaration has got due weight in the evidence.\nFurther, as stated earlier, the doctor has explained that though the deceased Renuka sustained 100% burn injuries, she was in a position to talk. In such circumstances, her statement cannot be rejected on the ground that she sustained severe burn injuries. Normally, the person on the verge of death will not implicate somebody falsely. Even if we accept some contradiction in Ex. P-7 complaint, in the light of Ex. P-9 dying declaration coupled with the evidence of eye-witnesses, there is ample evidence on record to hold that the appellants ill-treated the deceased Renuka and subjected her to cruelty by giving both mental and physical torture and in furtherance of their common intention only to commit the murder of the deceased, poured kerosene and set fire on her who ultimately succumbed to the injuries on the same day in the District Hospital, Bagalkot. In our view, dying declaration (Ex. P-9) fully corroborates the evidence of Doctor and Tahsildar who recorded it.\n16. The analysis of the prosecution witnesses, particularly, PW-3, PW-4, PW- 10 elderly person of the village and PW-12 Taluk Executive Magistrate who recorded the dying declaration of Renuka clearly proves the involvement of appellants in the commission of offence as charged and they were rightly awarded sentence of life imprisonment. Though, it was pointed out that there were certain discrepancies, according to us, they all are minimal and it had not affected the case of the prosecution. As discussed earlier, in view of the oral evidence of PW-3, PW-4, PW-6, PW-7, PW-9, PW- 10, PW-12 coupled with dying declaration Ex. P-9, we hold that the prosecution has fully established its case against the appellants and we are in entire agreement with the conclusion arrived by the High Court.\n17. In the light of the above discussion, we do not find any merit in the appeal, consequently, the same is dismissed.\nAppeal dismissed.\n"}
+{"id": "hPInRVkLUh", "title": "", "text": "Rukia Begum and others v State Of Karnataka\nSupreme Court of India\n\n4 April 2011\nCRIMINAL APPEAL NO. 1519 OF 2008 WITH CRIMINAL APPEAL NO. 698 OF 2008 WITH CRIMINAL APPEAL NO. 698 OF 2008\nThe Judgment was delivered by : Chandramauli Kr. Prasad, J.\n1.  Altogether 8 persons were put on trial for commission of the offence under Section 302 and 201 read with Section 34 as also Section 379 of the Indian Penal Code. Accused Jaibunissa died during the trial, whereas accused Rukiya Begum, Nasreen, Mansoor and Mohmmed Ghouse were acquitted of all the charges. However accused Issaq Sait, Nasarath and Mujahid were held guilty of the offence under Section 302 and 201 read with Section 34 of the Indian Penal Code and awarded life imprisonment and seven years imprisonment respectively.\n2. State of Karnataka, aggrieved by the acquittal of Rukia Begum Nasreen, Mansoor and Mohammed Ghouse preferred appeal whereas appellant Issaq Sait and Mujahid aggrieved by their conviction and sentence also preferred appeal. State also preferred appeal seeking enhancement of sentence.\n3. All the appeals were heard together and the High Court by its common judgment dated 28th of May, 2007 dismissed the appeal preferred by the appellants Issaq Sait and Mujahid.\n4. The appeal filed by the State against the acquittal of the accused persons was partly allowed by the High Court and it set aside the acquittal of Rukia Begum, Nasreen and Mohammed Ghouse and convicted them for the offence under Section 302 and 120-B of the Indian Penal Code and sentenced them to imprisonment for life.\n5.  Rukia Begum and Nasreen have filed separate appeals whereas Issaq Sait and Mujahid appealed with the leave of the court. In these appeals we are concerned with Rukia Begum, sole appellant in Criminal Appeal No. 1519 of 2008, Nasreen, appellant in Criminal Appeal No. 1808 of 2009 and Issaq Sait and Mujahid, appellants in Criminal Appeal No. 698 of 2008. It is relevant here to state that convict Mohammed Ghouse joined as Appellant No. 2 in the appeal filed by Nasreen and as he failed to surrender, his appeal stood dismissed.\n6.  Prosecution commenced on the basis of a written report given by PW-12 Thammaiah to PW-31 G.Jayaraj, the Sub- Inspector of Police in which he disclosed that while he was at his agricultural field near the land of accused Jaibunnisa, his brother-in-law PW-2 Chandrashekar @ Chandru informed him that while he was near Aralikatte, PW-1 Thandavamurthy and appellant Nasreen informed him that the dead bodies of Rasheed Sait and his wife Sabeena Sait were lying in the field.\n7. The Sub-Inspector of Police G.Jayaraj came to the place of occurrence and found trace of blood from the place of occurrence to the gate of the deceased and the accused. During the course of investigation appellants Rukiya Begum and Nasreen were arrested and on their disclosure plastic bucket and plastic pot kept in the bathroom were seized.\n8. Appellant Issaq Sait was also arrested and his statement led to the recovery of wheel and tyre of the motorcycle belonging to the deceased. Appellant Mujahid surrendered before the Judicial Magistrate and he was taken on police remand for interrogation. During interrogation the statement given by him led to the recovery of the knife. The personal belongings of the deceased Sabeena Begum were also recovered from other accused persons.\n9.  According to the prosecution there was strained relationship between the deceased Rasheed Sait on one side and his mother accused Jaibunnisa, sisters i.e. appellants Rukia Begum and Nasreen and husband of the sister on the other side in relation to the ancestral property.\n10. The appellants, in fact, had admitted the strained relationship amongst themselves. Further case of the prosecution is that on 9th June, 1995 Rasheed Sait along with his wife Sabeena Begum and daughter Tamanna had gone to Mysore to meet PW-4, Rameeza and reached there at 5.30 P.M. After having meal at her house they left for their home. In order to trap the deceased the accused persons tied coconut leaves obstructing the passage near his house. Rasheed Sait while coming to his house hit against the obstruction and fell from his motorcycle.\n11. It is the case of the prosecution that all the appellants herein besides other accused persons attacked Rasheed Sait and his wife Sabeena Begum and caused their death. Prosecution has alleged that in order to shield themselves from punishment the accused persons shifted the dead bodies and dismantled the motorcycle used by the deceased.\n12.  Police after investigation submitted chargesheet and the appellants besides four other accused persons, namely, Jaibunnisa, Mansoor, Mohammed Ghouse, and Nasarath @ Musarath @ Nasarathulla Shariff were committed to the Court of Sessions. Appellants denied to have committed any offence and claimed to be tried. There is no eye-witness to the occurrence and the prosecution sought to establish the guilt against all the accused persons, including the appellants by circumstantial evidence.\n13. It has brought on record oral evidence as also documentary evidence to prove that there was strained relationship between the deceased and the accused persons in regard to the share in the ancestral property. Presence of blood marks near the house of some appellants was another circumstance relied on by the prosecution to prove the guilt. Recovery of wheel and tyre of the motorcycle of the deceased from appellant Issaq Sait and recovery of knife from appellant Mujahid at their instances was another circumstance which, according to the prosecution pointed towards the guilt of these two appellants. The conduct of these appellants i.e., abscondence immediately after the occurrence was yet another circumstance brought by the prosecution to establish their guilt.\n14.  The trial court on the appraisal of the evidence came to the conclusion that motive and recovery of bucket and plastic pot at the instance of the appellants Rukia Begum and Nasreen do not pointedly lead towards their guilt and accordingly acquitted them of all the charges. However, the circumstantial evidence brought and proved by the prosecution, i.e. motive; presence of blood; recoveries and abscondence immediately after the occurrence persuaded the trial court to hold that the circumstantial evidence clearly lead towards the guilt of appellants Issaq Sait and Mujahid and accordingly convicted and sentenced them as above.\n15.  We have heard the learned counsel for the appellants as also the State. It has been submitted by the counsel representing appellants Rukia Begum and Nasreen that the circumstantial evidence brought against them do not conclusively point towards their guilt and, therefore, the High Court erred in reversing the well considered judgment of acquittal of the trial court. They point out that the strained relationship between these appellants and their brother Rasheed Sait does not necessarily lead towards the guilt of these appellants. Recovery of day to day articles i.e., bucket and plastic pot also do not point out towards their guilt. It has been pointed out that the High Court while convicting these two appellants has not relied on the recovery. Ms. Anitha Shenoy, however, submits that two sisters, i.e., appellants Rukia Begum and Nasreen had very serious dispute with the deceased in regard to share of property.\n16. According to her this is a strong motive to commit the crime.\n17.  We have bestowed our consideration to the rival submissions and we are of the opinion that the circumstantial evidence brought against these appellants are not such which lead towards their guilt. As stated earlier, recovery from these appellants itself has been discarded by the High Court. In our opinion motive alone, in the absence of any other circumstantial evidence would not be sufficient to sustain the conviction of these two appellants. It is worthwhile mentioning here that the trial court on appraisal of the evidence came to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt, so far as Rukia Begum and Nasreen are concerned. It is trite that where two views on the evidence are reasonably possible and the trial court has taken a view favouring acquittal, the High Court in an appeal against acquittal should not disturb the same merely on the ground that if it was trying the case, it would have taken an alternative view and convicted the accused.\n18. The High court while hearing appeal against the judgment of acquittal is possessed of all the power of appellate court and nothing prevents it to appraise evidence and come to a conclusion different than that of the trial court but while doing so it shall bear in mind that presumption of innocence is further reinforced by acquittal of the accused by the trial court. The view of the trial Judge as to the credibility of the witness must be given proper weight and consideration. There must be compelling and weighty reason for the High Court to come to a conclusion different than that of the trial court. The view taken by the trial court was justified in the facts and circumstances of the case and a possible view and, therefore in our opinion, the High Court erred in setting aside their acquittal.\n19.  The case of appellant Issaq Sait and Mujahid in our opinion, however, stands on altogether different footing. The trial court has held them guilty. There is overwhelming evidence to prove beyond all reasonable doubt that they shared the motive with other accused persons. Appellant Issaq Sait during the course of investigation gave statement which led to the recovery of wheel and tyre of the motorcycle belonging to the deceased which was dismantled. It was seized and seizure list was prepared. This recovery has been proved by oral evidence as also the seizure list. Further, the statement given by appellant Mujahid during the course of investigation led to recovery of the knife and it has been proved by PW-25 Jakir Ahamad and seizure memo. These two appellants were not found at the normal place of their work and their abscondence has been proved by PW-7 Ashok Kumar, the Manager of M/s. Habeeb Solvent Extract. In his evidence he has stated that appellant Issaq Sait and appellant Mujahid were working in the factory. He has further stated that Issaq Sait was assigned duty for collection of money due to the company and such a duty was assigned on 9th of June, 1995. PW-33 Govindaraju had also stated that the appellant Issaq Sait, as an employee of M/s. Habeeb Solvent Extract, approached him for collection of money and on 9th of June, 1995 he paid a sum of Rs. 10,000/- to him. PW-7 has further stated in his evidence that during the month of June, 1995 appellant Mujahid left the factory and did not join the duty.\n20. From the aforesaid evidence it is clear that the appellants Issaq Sait and Mujahid were employees of M/s. Habeeb Solvent Extract and absconded soon after the incident.\n21.  No doubt it is true that for bringing home the guilt on the basis of the circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established.\n22. The circumstances so proved must unerringly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else.\n23. It has to be considered within all human probability and not in fanciful manner. In order to sustain conviction circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.\n24. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hard and fast rule can be laid to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case. Here in the present case the motive, the recoveries and abscondence of these appellants immediately after the occurrence point out towards their guilt.\n25. In our opinion, the trial court as also the High Court on the basis of the circumstantial evidence rightly came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt so far as these appellants are concerned.\n26.  In the result Criminal Appeal No. 1519 of 2008 filed by Rukia Begum and Criminal Appeal No. 1808 of 2009 preferred by appellant Nasreen are allowed, the impugned judgment of the High Court is set aside.\n27. Appellant Rukia Begum is in jail, she be set at liberty forthwith.\nCriminal Appeal No. 698 of 2008 stands dismissed.\nAppeals disposed of\n"}
+{"id": "nFbmOHnKYa", "title": "", "text": "Koli Chunilal Savji and Another v tate of Gujarat\nSupreme Court of India\n\n29 September 1999\nCr. Appeal Nos. 1786 and 1703 of 1996\nThe Judgment was delivered by: G.B.Pattanaik, J.\n1.  These two appeals arise out of Judgment dated 21/24.6.1996 of the High Court of Gujarat at Ahmadabad in Criminal Appeal Nos. 236 and 105 of 1989 and are being disposed of by this common Judgment. The two appellants were tried for having committed an offence under Section 302/34 IPC on the allegation that on 28.6.84 at 4 A.M., while deceased Dhanuben was sleeping on her bed, the two accused persons namely her husband and mother-in-law poured kerosene and set fire with match box. Along with the deceased, her son Ajay was also there and both, the deceased and Ajay were burnt. They were taken to the hospital for treatment.\n2.  In the hospital, Police recorded the statement of Dhanuben which was treated as F.I.R. and then after registering the case, investigation started. In the hospital, both Dhanuben and her son Ajay died and as such the accused persons stood charged for offence under Sections 498A and 302/34 of the IPC. Apart from the statement by deceased Dhanuben to PW 14, which was treated as F.I.R., a Magistrate also recorded her statement which was treated as a dying declaration. On scrutiny of the prosecution evidence, the learned Sessions Judge did not rely upon the dying declaration made by the deceased Dhanuben and in the absence of any other evidence to connect the accused appellants with the murder of the deceased, acquitted them of the charge under Section 302/34 IPC.\n3.  The learned Sessions Judge however came to the conclusion that the offence under Section 498A has been established beyond reasonable doubt and as such convicted them under the said Section and sentenced them to rigorous imprisonment for two years and imposed a penalty of Rs.250/-, in default, further imprisonment for two months. The State of Gujarat preferred an appeal against the acquittal of the accused persons of the charge under Section 302/34 IPC and the accused persons preferred appeal against their conviction under Section 498A. The High Court by the impugned Judgment set aside the order of acquittal, relying upon the two dying declarations Exh. 45 and Exh. 41 and convicted the appellants of the charge under Section 302/34 IPC and States appeal was allowed.\n4.  The appeal filed by the accused persons, assailing their conviction under Section 498A however stood dismissed and the conviction under Section 498A and the sentence passed there under was maintained. It may be stated that while admitting the appeal of the accused persons against their conviction under Section 498A, the High Court had suo motu issued notice as to why the sentence imposed for the offence punishable under Section 498A should not be enhanced. But while disposing of the criminal appeals, the High Court did not think it proper to enhance the sentence and accordingly notice of enhancement stood discharged.\n5.  On the basis of the post-mortem report conducted on the dead bodies of Dhanuben and her son Ajay and the evidence of doctor PW9, who conducted the autopsy over the dead bodies, the conclusion is irresistible that both the persons died on account of burn injuries but the defense however raised a contention that the two persons died on account of suicide and the house was set fire by the deceased herself. The prosecution witnesses to whom deceased had made oral dying declaration, implicating the accused persons, did not support the prosecution during trial and, therefore, with the permission of the Court the Public Prosecutor cross- examined them. The High Court accordingly, placed no reliance on their testimony. The High Court however examined the two dying declarations namely Exh.45, recorded by the Sub-Inspector PW14 and the dying declaration Exh.41, recorded by the Magistrate PW12 and came to the conclusion that both these dying declarations are truthful and voluntarily made and, therefore, can safely form the basis of conviction of the accused persons under Section 302/34 IPC.\n6. With the aforesaid conclusion the order of acquittal passed by the learned Sessions Judge of the charge under Section 302/34 was set aside and the accused appellants were convicted of the said charge and were sentenced to imprisonment for life. The High Court also relying upon the dying declaration and other materials, further came to the conclusion that the prosecution case, so far as the charge under Section 498A IPC is concerned, has been proved beyond reasonable doubt and, therefore, upheld the conviction and sentence passed thereunder by the learned Sessions Judge.\n7.  Mr. Keshwani, the learned counsel appearing for the appellants argued with vehemence that the two dying declarations cannot be relied upon inasmuch as the doctor was not present while the dying declaration was recorded by the Magistrate and further, there is no endorsement by the doctor, indicating the mental condition of the deceased to the effect that she was in a fit condition to make the statement.\n8.  The learned counsel also further urged that the doctor himself has not been examined in this case which makes the position worse. Mr. Keshwani also made a submission that the deceased was surrounded by her own relations before the dying declaration was recorded by the Magistrate and as such had sufficient opportunity to be tutored and consequently the dying declaration recorded by the Magistrate becomes vitiated. Mr. Keshwani also submitted that the incident having taken place at 4 A.M. and the dying declaration having been recorded by the Magistrate at 9 A.M., five hours after the occurrence, there has been gross delay which makes the dying declaration doubtful and as such should not have been accepted. Mr. Keshwani lastly submitted that the learned Sessions Judge having recorded an order of acquittal, the same should not have been interfered with by the High Court without justifiable reasons and on this score also the conviction of the appellants under Section 302/34 IPC cannot be sustained.\n9.  The learned counsel appearing for the respondent State, on the other hand submitted that the dying declaration which has been relied upon by the High Court in the facts and circumstances, has been rightly held to be truthful and voluntary one and, therefore, in law, can form the sole basis of conviction. She also contended that though endorsement of the doctor and presence of the doctor is ordinarily looked for but merely on that score the dying declaration recorded by the Magistrate cannot be held to be an untruthful one. Besides, the learned counsel submitted that the doctor did make an entry in the Police yadi, indicating that the deceased was in a fit condition to make any statement and it is he, who took the Magistrate to the deceased and non-endorsement by the doctor on the statement recorded by the Magistrate cannot be held to be fatal nor can any doubt arise on that score.\n10.  The learned counsel further contended that the power of the High Court against an order of acquittal is the same as against an order of conviction and while setting aside an order of acquittal, it is necessary for the Appellate Court to look at the reasoning given by the trial Judge and be satisfied whether those reasoning are just and proper or not. The reasoning given by the learned Sessions Judge to discard the two dying declarations having been found by the High Court to be wholly unreasonable and, therefore, the High Court was fully entitled to interfere with the conclusion of the learned Sessions Judge and no infirmity can be found out on that score.\n11.  Coming to the affirmation of conviction under Section 498A, while Mr. Keshwani, appearing for the accused appellants submitted that on this scanty evidence, the Courts could not have convicted the accused persons of the said charges, the learned counsel for the respondent submitted that both the Courts have analysed the evidence fully and having found that the charge under Section 498A IPC has been proved beyond reasonable doubt, question of interfering with the said conviction does not arise.\n12.  In view of the rival submissions made at the Bar, two questions really arise for our consideration. (1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from consideration for the infirmities pointed out by Mr. Keshwani, appearing for the appellants. (2) Whether the High Court exceeded its jurisdiction in interfering with the order of acquittal, recorded by the learned Sessions Judge.\n13.  Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keshwani, that in the absence of doctor while recording the dying declaration, the said declaration loses its value and cannot be accepted. Mr. Keshwani in this connection relies upon the decision of this Court in the case of Maniram vs. State of Madhya Pradesh, AIR 1994 SC 840. 1993 Indlaw SC 149313. In the aforesaid case, no doubt this Court has held that when the declarant was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of aforesaid infirmity and interfered with the Judgment of the High Court. But the aforesaid requirements are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question.\n14.  In Ravi Chander and Ors. vs. State of Punjab, 1998 (9) SCC 303 1996 Indlaw SC 1655, this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur vs. State of Punjab 1994(4) SCALE 447, this Court has examined the same question and held:\n15. As regards the condition of Parminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not on the Dying Declaration itself but on the application, that would not render the Dying Declaration suspicious in any manner.\n16.  In view of the aforesaid decisions of this Court, we are unable to accept the submission of Mr. Keshwani that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. Shukla, she told the doctor on duty that she is required to take the statement of Dhanuben and she showed the doctor the Police yadi.\n17.  The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on Police yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the Police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon.\n18.  In this particular case, the police also took the statement of the deceased which was treated as F.I.R., and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt. Consequently, we have no hesitation in rejecting the first submission of Mr. Keshwani.\n19.  In this connection, it may be appropriate for us to notice an ancillary argument of Mr. Keshwani that there has been an inordinate delay on the part of the Magistrate to record the dying declaration and, therefore, the same should not be accepted. As we find from the records, the incident took place at 4 A.M. and the Magistrate recorded the dying declaration at 9 A.M., in our opinion, it cannot be said that there has been an inordinate delay in recording the statement of the deceased. Mr. Keshwani had also urged that when the Magistrate recorded the dying declaration, the deceased had been surrounded by her relations and, therefore, it can be assumed that the deceased had the opportunity of being tutored. But we fail to understand how this argument is advanced inasmuch as there is no iota of evidence that by the time the Executive Magistrate went, the deceased was surrounded by any of her relations. No doubt the Magistrate herself has said that three or four persons were there near the deceased whom she asked to go out but that they were the relations of the deceased, there is no material on record. We, therefore, have no hesitation to reject the said submission of Mr. Keshwani.\n20.  Coming now to the second question, the law is well settled that the power of the High Court while sitting in appeal against an order of acquittal is the same, as the power while sitting in appeal against the conviction and the High Court, therefore would be fully entitled to re-appreciate the materials on record and in coming to its own conclusion. The only compulsion on the part of the Appellate Court is to bear in mind the reasons advanced by the learned Sessions Judge, while acquitting the accused and indicate as to why those reasons cannot be accepted. This being the parameter for exercise of power while entertaining an appeal against the order of acquittal and in view of our conclusion and finding that the two dying declarations were truthful ones and voluntarily made, we see no infirmity with the impugned judgment of the High Court in setting aside an order of acquittal. On going through the Judgment of the Sessions Judge, we find that the learned Sessions Judge erroneously excluded the two dying declarations from purview of consideration and therefore, the High Court was justified in interfering with the order of acquittal. If the order of acquittal is based upon the grounds not sustainable, the Appellate Court would be justified in interfering with the said order of acquittal. Consequently, we are of the opinion that in the facts and circumstances of the present case, the High Court was fully justified in interfering with the order of acquittal recorded by the Sessions Judge and as such the conviction of the appellant under Section 302/34 IPC is unassailable. Coming to the question of conviction under Section 498A IPC, as has been stated earlier, the learned Sessions Judge also convicted the appellant of the said charge and the High Court on re-appreciation, has affirmed the conviction and sentence passed there under and nothing has been brought to our notice to take a contrary view. In the net result, therefore, these appeals fail and are dismissed.\nAppeal dismissed.\n"}
+{"id": "A2TVwyJmIe", "title": "", "text": "Rambai v State of Chattisgarh\nSupreme Court of India\n\n4 October 2002\nAppeal (crl.) 1247 of 2001\nThe Judgment was delivered by : Santosh Hegde, J.\n1.  Being aggrieved by the judgment of the High Court of Judicature Chhattisgarh made in Criminal Appeal No. 1873 of 2000 whereby the High Court dismissed the appeal of the appellant filed against the judgment of the Sessions Judge, Raipur, Madhya Pradesh in Sessions Trial No.412 of 1998 the appellant has preferred this appeal before us.\n2.  Brief facts necessary for the disposal of this appeal are as follows:\n3. That the appellant and deceased Vidya Bai who is her sister-in-law used to have frequent quarrels. Consequent to which it is stated on 8th of October, 1998 at about 2.30 p.m. the appellant poured kerosene oil on Vidya Bai and burnt her. It is the prosecution case that Vidya Bai on being so burnt ran out of the house when her husband Balram came to her rescue and tried to extinguish the fire, in this process it is stated even he suffered some burn injuries on his hands. Thereafter, it is the prosecution case that Vidya Bai was taken to the hospital where PW.17, Dr. Kiran Aggrawal examined her injuries and found that Vidya Bai suffered almost about 85% burns on her body.\n4. Though the police were informed of this incident, they were unable to record any statement of Vidya Bai since she was not in a position to do so. It is the further case of the prosecution that on 12.10.1998 when she regained consciousness a statement was recorded as per Ex.P/9 by PW.11, G.S. Gaharwar which was treated as the first information for registering a crime. It is also stated that on the very same day as per Ex.D/4 the said witness PW.11 also recorded another dying declaration. It is the further case of the prosecution that later in the evening of 12th October, 1998 at about 4.30 p.m. on a request made by the police to the Tehsildar/Executive Magistrate to record the dying declaration of Vidya Bai, PW.12, K.K. Bakshi, came to the hospital and recorded Ex.P/11 another dying declaration of the said Vidya Bai. It is also on the record that said Vidya Bai died around 4.30 a.m. on 13th October, 1998, therefore, a case which had originally registered under Section 307 IPC was re- registered under Section 302 IPC. The appellant who was arrested under Section 307 IPC and thereafter was charged under Section 302 IPC and was tried for the said offence. The prosecution in support of its case examined 19 witnesses, while defence in support of its case examined three witnesses.\n5. In her 313 Cr.P.C. statement the appellant took the specific defence that at the time of the mishap she was preparing incense sticks and came to know about burns suffered by the deceased she also went to extinguish the fire and she had not poured any kerosene oil and set Vidya Bai on fire. She also contended that at the instance of the mother of the deceased in her dying declaration deceased had falsely implicated her. As stated above the trial court found the appellant guilty of the offence charged and sentenced she to undergo imprisonment for life under section 302 IPC and the High Court has confirmed the said sentence.\n6.  Shri Seeraj Bagga, learned counsel appearing as amicus curiae in this case contended that in the instant case there are three dying declarations all made on 12th October, 1998 while the prosecution has relied upon the dying declaration Ex.P/11 that is recorded on that day at about 4.30 p.m. by PW.12. He contended that all the earlier efforts of the prosecution to get a dying declaration recorded failed because of the report of the doctors wherein the said doctors had stated that the injured was not in a fit state to make a dying declaration. Further, he contends that PW.19, Dr. Ashok Sharma who was not the doctor in-charge of the treatment of the deceased for the first time gave a certificate that the deceased was in a fit state to make a statement.\n7. In the said backdrop, such a certificate of the doctor PW.19 ought not to be relied upon. In this context, he pointed out that on the very same day i.e. on 10th October, 1998 at about 12.15 p.m. as also at 4.30 p.m. two attempts made by the prosecution investigating agency to record the dying declaration of the deceased failed, because then the doctors had certified that she was not in a fit condition to make statement. He also contended that PW.11 had failed to ensure before the recording of the said dying declaration that the deceased was in a fit mental condition to make the said statement.\n8. In the absence of any such certificate by recording authority it is contended that the dying declaration cannot be relied upon. So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313)2002 Indlaw SC 1921 wherein overruling the judgment of this Court in Laxmi(Smt.) vs. Om Prakash and others (2001 (6) SCC 118)2001 Indlaw SC 20085, it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declaring to make such dying declaration. If the person recording such dying declaration is satisfied that the declaring is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declaring to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19,\n9. Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration. That apart from the narration of the questions and answers in the dying declaration it is clear that the deceased was in a fit state of mind to make the statement. But the learned counsel for the appellant contended that we should examine the contents of the dying declaration in the background of the fact that the deceased had suffered nearly 85% burns and ever since her admission to the hospital she was alternating between consciousness and unconsciousness, as also earlier attempts to record her dying declaration had failed. Therefore the learned counsel contends that it is not safe to place reliance on the dying declaration. We have carefully perused the evidence of PWs.12 and 19 who recorded the dying declaration and PW.19 who is the doctor who certified the condition of Vidya Bai from their evidence. We are satisfied that the deceased at the time she made the dying declaration was in a fit condition of mind to make such statement. Having found no discrepancy in the statement of the deceased we are inclined to accept the same as held by the courts below.\n10.  Learned counsel then contended that from the evidence of the husband, DW.2 himself, it is clear that the deceased must have suffered burn injuries while she was cooking lunch, therefore, it is not safe to rely upon the prosecution evidence to convict the appellant. We notice the courts below have considered this argument and taking the preponderance of evidence and also the factum that the husband of the deceased had resoled from his statement made before the investigating officer have held that it is not safe to rely upon DW.2. In such a situation we are unable to take a contra view from the one taken by the courts below. Having carefully examined the judgments of the courts below and material on record, we are satisfied that the courts below have correctly come to the conclusion as to the guilt of the appellant. In the said view of the matter the appeal fails and the same is dismissed.\n11.  We place on record our appreciation for the assistance rendered by Shri Seeraj Bagga, Advocate, as amicus curiae in this case and direct the payment for a sum of Rs.750/- to him as fee.\n12.  We also permit Shri Prakash Shrivastava, Advocate for respondent to file his Vakalatnama within four weeks from today.\nAppeal dismissed\n"}
+{"id": "g00rVq4jB6", "title": "", "text": "Amresh Tiwari v Lalta Prasad Dubey and Another\nSupreme Court of India\n\n11 April 2000\nSpecial Leave Petition (crl.) 3858 of 1999\nThe Judgment was delivered by : S. N. Variava, J.\nLeave granted.\n1. This appeal is against an Order dated 8th September, 1999. By this Order the High Court has, in exercise of powers under Section 482 of the Criminal Procedure Code, set aside an Order dt. 09 June 1999, passed by the sub-divisional Magistrate. The SDM had dropped/discontinued the proceedings under Section 145 of the Criminal Procedure Code.\nBriefly stated the facts are as follows :\n2. In respect of the property concerned the 1st Respondent had a dispute with Sharda Prasad and Shiv Kumar. The 1st Respondent filed Civil Suit No. 280 of 1990 in the Court of Civil Judge, Gyanpur on 10 October, 1990. It is not denied that this Suit was for declaration of title, possession and for injunction. On 10 October 1990, itself an application for ad interim Order was made. An Order to maintain status quo, as on that date, was passed by the Court.\n3. According to the Appellant, on 10th October, 1990 itself the said Sharda Prasad and Shiv Kumar had executed a Sale Deed in favour of Smt. Prem Kali, who was the mother of the Appellant. According to the Appellant possession of the property was delivered to Smt. Prem Kali on the same day. In Suit No. 280 of 1990, on an application made by Smt. Prem Kali, she was impleaded as a party defendant. In that Suit the pleadings are complete. Issues have been framed. The suit is pending trial.\n4. While this Suit was pending the S.O. Police Station, Aurai made a report to the S.D.M., Gyanpur stating that there was a dispute regarding possession of land likely to cause a breach of peace within his jurisdiction and for initiating of proceeding under Section 145 Criminal Procedure Code. On the basis of this report, the learned S.D.M. passed preliminary Order under Section 145(1) Criminal Procedure Code. Pursuant to this preliminary Order the Appellant's mother appeared and filed a written statement stating that there was no dispute likely to cause breach of peace regarding possession of the said property. It was pointed out that the civil Suit was pending in the court of civil jurisdiction and an Order directing maintenance of status quo had already been passed. The 1st Respondent also filed a written statement pursuant to the preliminary Order. The 1st Respondent claimed that the property which formed the subject matter of the civil Suit was different from the property in respect of which proceedings under Section 145 Criminal Procedure Code had been adopted.\n5. The Appellant thereafter made an Application that the proceedings under Section 145 Criminal Procedure Code be dropped as a civil Suit in respect of the same property was pending. That Application was rejected by the S.D.M. on 13 September 1991. Against the Order dated 13 September 1991, a Criminal Revision was filed before the Additional Session Judge, Gyanpur. The said Criminal Revision was rejected by an Order dated 16 March 1993. A Review Application was also dismissed by the Additional Session Judge on 11 May 1993. Thereafter the proceedings under Section 145 Criminal Procedure Code were resumed. Statements of parties were recorded. In the course of her statement the 1st Respondent, inter alia, stated as under :\n\"The Civil Suit which has been filed regarding this land which is Suit No. 280 of 1990. In respect of the disputed land which is the subject matter of the suit an order for maintain status-quo has been passed...... The Civil Suit, I have filed in the Civil Court is for dispossession of Amrit Lal and Prem Kali from the disputed land. This suit has been filed for obtaining stay order against Sharda Prasad.\"\n6. Thus the 1st Respondent admitted that the civil Suit was in respect of this land i.e. the land in respect of which proceedings under Section 145 Criminal Procedure Code had been adopted. The 1st Respondent also admits that the Suit is for possession and for stay. Very fairly it is conceded before us that the land in respect of which the proceedings under Section 145 Criminal Procedure Code was adopted were part of the properties in respect of which Suit No. 280 of 1990 had been filed.\n7. After the statement of the parties had been recorded, an Application was made by the Appellant that the proceedings under Section 145 Criminal Procedure Code may be discontinued/dropped in view of the pending civil Suit in which an order of maintenance of status quo had already been passed. By an Order dated 9th June, 1999, the S.D.M. dropped the proceedings under Section 145 Criminal Procedure Code by concluding that there was no propriety in continuing the proceedings under Section 145 Criminal Procedure Code when the civil Court was in seisin of the matter and an Order for maintaining status quo had already been passed.\n8. Against the Order dated 09 June 1991, the 1st Respondent filed Criminal Revision No. 1230 of 1999 before the Allahabad High Court. The Criminal Revision Application was allowed by the learned single Judge, who set aside the Order dated 09 June 1999 and remanded the matter back to the trial Court for resuming the proceeding under Section 145 Criminal Procedure Code. The only ground on which the learned single Judge has set aside the Order dated 09 June 1999 is that earlier an Application for dropping the proceedings under Section 145 Criminal Procedure Code had been made and dismissed and that the Revision against that Order had also been dismissed by the Sessions Court by the Order dated 11 May 1993. It was held that the Order 11 May 1993 had become final between the parties and was thus binding. It was held that in view of that Order the trial court could not have accepted the contention and should have rejected the Application for dropping the proceedings. It was held that in view of that Order the only option left to the Magistrate was to decide the proceedings under Section 145 Criminal Procedure Code between the parties on merit. It is this Order which is assailed in this Appeal.\n9. We have heard the parties at length. In our view the High Court has committed an error in setting aside the Order of the Magistrate on the basis that the earlier Order was final and binding. The earlier Orders were interim Orders. They were passed before any evidence or statements had been recorded. Those Orders were passed only on the basis of the contentions of the parties. At that stage the 1st Respondent had contended that the civil proceedings did not relate to the same properties in respect of which the proceedings under Section 145 Criminal Procedure Code were adopted. Thereafter statements were recorded in the Section 145 proceedings. In her statement the 1st Respondent admitted that proceedings under Section 145 Criminal Procedure Code were in respect of property which formed the subject-matter of the civil Suit and in respect of which an Order for maintenance of status quo had been passed by the civil Court. The S.D.M. was bound to take a decision afresh based on the statements before him. It is settled law that interim Orders, even though they may have been confirmed by the higher Courts, never bind and do not prevent passing of contrary Order at the stage of final hearing. The learned single Judge of the High Court appears to have lost sight of this.\n10. The learned single Judge also failed to appreciate that the earlier Orders were passed on the footing that the civil proceedings related to different properties and were between different parties. Subsequently, when it became clear that the civil proceedings were in respect of the same properties and between the same parties even the factual position had changed. For that reason also the earlier Order would not be binding.\n11. The question then is whether there is any infirmity in the Order of the S.D.M. discontinuing the proceedings under Section 145 Criminal Procedure Code. The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant vs. State of U.P. & Ors., reported in 1985 (1) S.C.C. 427 1984 Indlaw SC 15. In this case it has been held as follows :\n\"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue.\"\n12. We are unable to accept the submission that the principles laid down in Ram Sumers' case 1984 Indlaw SC 15 would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers' case 1984 Indlaw SC 15 is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.\n13. Reliance has been placed on the case of Jhummamal alias Devandas versus State of Madhya Pradesh & Ors., reported in 1988 (4) S.C.C. 452 1988 Indlaw SC 572. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 Criminal Procedure Code had resulted in a concluded order.\n14. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded Order under Section 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumers' case 1984 Indlaw SC 15 (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate.\n15. In this view of the matter the appeal is allowed. The impugned Order is set aside. In our view, the S.D.M. was right in discontinuing the proceedings under Section 145 Criminal Procedure Code. The Order passed by the S.D.M. on 9th of June, 1999 is restored.\n16. Before we part it must be mentioned that in the impugned Order the High Court has passed strictures against the S.D.M. The High Court has also directed the District Magistrate to transfer the proceedings from the S.D.M. who passed the Order dated 09 June 1991. In our view the strictures were uncalled for. We hope that in future the High Court would not pass such strictures. Two views are always possible. Merely because the High Court takes a different view is no ground for passing strictures against the lower court.\nPetition allowed.\n"}
+{"id": "td26fEeVVh", "title": "", "text": "Ram Sumer Puri Mahant v State of Uttar Pradesh and Others\nSupreme Court of India\n\n17 December 1984\nCr.A. No. ...... of 1984, (Arising out of S.L.P. (Cri) No. 1369 of 1982)\nThe Order of the Court is as follows:\nSpecial Leave granted.\n1.  Challenge in this application is to the order of the Allahabad High Court refusing to interfere in its revisional jurisdiction against an order direction initiation of proceedings under S. 145, Criminal P.C.('Code' for short), and attachment of the property at the instance of respondents 2-5. Indisputably, in respect of the very property there was a suit for possession and injunction being Title Suit No. 87/75 filed in the Court of the Civil Judge at Ballia wherein the question of title was gone into and by judgment dated February 28, 1981, the said suit was dismissed. The appellant was the defendant in that suit.\n2.   According to the appellant close relations of respondents 2-5 were the plaintiffs and we gather from the counter affidavit filed in this Court that an appeal has been carried from the decree of the Civil Judge and the same is still pending disposal before the appellate court. The assertion made in the petition for Special Leave to the effect that respondents 2 to 5 are close relations has not been seriously challenged in the counter affidavit. When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under S. 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.\n3.  We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed. We accordingly allow the appeal and quash the order of the Magistrate by which the proceeding under S. 145 if the Code has been initiated and the property in dispute has been attached. We leave it open to either party to move the appellate Judge in the civil litigation for appropriate interim orders, if so advised, in the event of dispute relating to possession.\nAppeal allowed.\n"}
+{"id": "GNdzSgVaI5", "title": "", "text": "Bhima @ Bhimarao Sida Kamble and Others v State of Maharashtra\nSupreme Court of India\n\n27 August 2002\nAppeal (Crl.) 418 of 1994\nThe Judgment was delivered by : S. Rajendra Babu, J.\n22 persons were charged by the Court of Session, Solapur on the allegation that they formed an unlawful assembly with the common object of murdering vithal and causing injury to Bhimrao, the brother of Vithal, and to cause damage to the 'wada' at Dambaldar. After trial most of them stood convicted under Section 302 read with Section 149 and Section 440 read with Section 149 of the Indian Penal Code [IPC] and accused Nos. 14, 18 and 19 were also charged and convicted under Section 323 read with Section 34 IPC for having caused simple hurt to Bhimrao. On appeal, the High Court acquitted some more accused but confirmed the conviction and sentence in regard to others. Accused Nos. 1 to 3 and 14 to 19 are in appeal before us. We are not concerned with other accused.\n1.  This Court granted leave by an order made on 18-7-1994 confining the same only to the question of the nature of offences disclosed. When the learned Senior Advocate Shri A. T.M. Rangaramanujam pitched his arguments a little too high to contend that the accused are entitled to plain acquittal, we made it clear to him that when the trial court and the High Court on the basis of evidence have come to a conclusion one way or the other of their involvement in the incident in respect of which they were charged, we cannot re-appreciate the matter and come to a different conclusion. Thereafter, he confined his arguments only to the question of offence arising out of proved facts.\n2.  After analysing the evidence of PWs I5 and 16 and other material on record the learned Sessions Judge held that accused No. 1 went to the 'vasti' of Vithal along with some of the accused accused and was following Vithal upto his 'wada', that when Vithal and Bhimrao were inside he charged on the servant to scare him away as he was pleading to protect the members of his master's family. He held that he shared the common object to murder Vithal, though the circumstances in the case may not suggest that he was sharing the common object to murder Bhimrao but to cause him hurt.\n3.  As regards accused No. 2, from the testimony of PW 16 and other evidence on record, the learned Judge held that when the deceased-Vithal arrived at the Bus Stand after release on bail, he was seen following Vithal; that he went inside the 'wada' scaling the wall; that his conduct certainly suggested that he was taking active part as a member of the unlawful assembly to find out where the victims were hiding and how to reach them, as otherwise there was no reason to scale the wall and go inside the 'wade'.\n4.  As regards accused No. 3, the learned Judge on analysing evidence of PWs 12 and 16 along with other material on record held that he was present at the S. T. stand and he was following Vithal near the 'wada' and when Vithal and Bhimrao were inside, he pelted stones at Suman. These circumstances were sufficient to hold that he was the member of the unlawful assembly and was sharing its common object except in respect of the injury caused to Bhimrao.\n5.  As regards accused Nos. 14, 18 and 19, the learned Judge relied on evidence of PWs 9 and 10 for causing injuries to Bhimrao and from evidence of PWs 14 and 16 held that accused Nos. 18 and 19 were at the S. T. bus stand and accused No. 14 joined them in search of Vithal. They came following Vithal, went inside the 'wada' beat Bhimrao after taking him outside from where he was hiding. These acts prove their sharing of the common object to murder Vithal and their common intention to assault Bhimrao. The learned Sessions Judge also took the view that the target of attack was not Bhimrao but Vithal inasmuch as Bhimrao happened to be accidentally with Vithal and accused Nos. 14, 18 and 19 beat him inside the 'wada'. This act of theirs was not in furtherance of the common object of the assembly, but this was in furtherance of the common intention to do so in order to put Bhimrao in fear from coming ahead to save his brother Vithal. Therefore, as regards accused Nos. 14, 18 and 19, the learned Judge concluded that there is 'common object in respect of Vithal and 'common intention' in respect of Bhimrao.\n6.  In. this case, the learned Sessions Judge noticed that there was no specific evidence as to the nature of weapons with which they were armed. What was proved in the whole case was that accused Nos. 14, 18 and 19 personally dealt blows with sticks and the allegation that accused No. 3 wielded axe was not proved. There was no evidence to show that at the time of incident they were armed with axes. Axes produced by accused Nos. 1,2, 18 and 19 were not shown to have been used in causing hurt. On that basis, the learned Sessions Judge held that accused Nos. 14, 18 and 19 cannot be found to be the members of unlawful assembly armed with deadly weapons. In appeal, the High Court also examined the evidence with reference to each one of the appellants and affirmed the findings recorded by the trial court.\n7.  When a large number of persons were armed only with sticks of pelted stones which they could find anywhere either near the fields or on their way and it was not established as to who specifically attacked whom, it is not clear as to whether the intention was to cause death. It is more probable that the intention was to give hard beating only. Even if we accept the case that the deceased-Vithal was pursued right upto the 'wada' the object of the mob was to teach him a stern lesson who is said to be a bully in the village. In the circumstances and in the light of evidence, we must hold that the reasonable inference to be drawn is that the common object was to commit offences under Section 323 and Section 325 read with Section 147/149 IPC and not under section 302 read with Section 149 IPC. The trial court as well as High Court appear to have lost sight of crucial aspects.\n8. Therefore, we think that-these accused who are under appeal before us deserve to be acquitted of the charges under Section 302 read with Section 149 IPC, while they stand convicted as rightly held by the trial court, under Section 147, Section 323 and Section 325 IPC. The sentences which they have already undergone should be treated as sufficient punishment and they may be released forthwith if they are still in jail. Orders made by the trial court as confirmed by the High Court will stand modified accordingly. The appeal is allowed limited to the above extent.\nAppeal allowed\n"}
+{"id": "BovCzfAPxj", "title": "", "text": "Ram Lal v Delhi Administration\nSupreme Court of India\n\n5 September 1972\nCr.A. No. 190 of 1970.\nThe Judgment was delivered by: PALEKAR, J.\n1.  The appellant Ram Lal has been convicted by the Delhi High Court for the murder of one Har Lal under Section 302, I.P.C. and sentenced to imprisonment for life. Special leave is limited to the question of the applicability of Section 302, I.P.C.\n2.  Appellant Ram Lal along with three others, namely, Lekh Ram, Tek Chand and Mohar Singh were committed to the Court of Session on two separate charges. One charge was under Section 302, read with Section 34, I.P.C. for the alleged murder of deceased Har Lal, and the other charge was under Section 325, read with Section 34, I.P.C. for voluntarily causing grievous hurt to one Budh Ram. One more charge was added in the court of Session so far as Ram Lal is concerned. The Additional Sessions judge noticed that the lathi blow which proved to fatal was given by Ram Lal and hence a substantive charge under Section 302, I.P.C. was framed against the appellant.\n3.  After trial, Mohar Singh was acquitted. The appellant Ram Lal, Lekh Ram and Tek Chand were convicted u/s. 302 read with Section 34, I.P.C. and sentenced to undergo life imprisonment for the murder of Har Lal. The appellant and Tek Chand were also convicted under Section 325, read with Section 34, for the grievous injuries caused to Budh Ram and sentenced to 2 1/2 years rigorous imprisonment. The sentences were made to run concurrently. In appeal to the High Court the appellant Ram Lal alone was convicted for the offence under Section 302, I.P.C. for the murder of Har Lal whereas Tek Chand and Lekh Ram were convicted in respect of that assault under Section 325, read with 34. The sentence passed on Tek Chand and Lekh Ram was reduced to 2 1/2 years rigorous imprisonment.\n4.  The appellant Ram Lal has alone come to this court and we are concerned only with the question whether the prosecution has been able to prove on the facts as disclosed and accepted by the High Court an offence under Section 302, I.P.C. against him. The High Court came to the conclusion, so far as the attack on deceased Har Lal is concerned, that he was assaulted with lathis or sticks by the appellant, Tek Chand and Lekh Ram. It also came to the conclusion that their common intention was not to cause death but only grievous hurt. On that finding the conviction of all the three could have been only under Section 325, read with S. 34. The reason, however, why Ram Lal, the appellant, was convicted under Section 302, I.P.C. was the High Court held that though all three had the common intention of causing grievous hurt, it was appellant Ram Lal who gave the blow on the head of the deceased with his lathi which proved fatal and hence the appellant was liable to be convicted under Section 302, I.P.C. According to the High Court though Tek Chand and Lekh Ram had attacked the deceased they had not given any blow to the deceased on his head.\n5.  The whole case seems to have proceeded on the assumption that only one blow was given on the head and that was given by appellant Ram Lal. The Additional Sessions Judge while framing the additional charge against the appellant for substantive offence under Section 302, I.P.C. mentioned that the evidence as recorded before the Committing Court disclosed that the appellant had given a fatal lathi stick blow on the head of Har Lal. The charge against him also as framed by him stated that the appellant had intentionally caused the death \"by causing lathi blow\" on the head of the deceased. The High Court also assumed that only one lathi blow was given on the head of the deceased and that blow proved fatal. Now all these assumption are obviously not correct.\n6.  Dr. Ved Vrat who had examined the injuries on the person of the deceased has described the injuries as follows -\n(1) Contused lacerated wound 1/2\"x 1/2\" bone deep, left side frontal region; bleeding present;\n(2) Contused lacerated wound 2\"x 1/2\" bone deep over vertex in mid line. Bleeding present;\n(3) Deformity nose;\n(4) Deformity left side forehead and left parietal region depressed fracture skull.\n7.  The post-mortem examination was performed by Dr. Bishnu Kumar who noted 5 injuries - two out of which where definitely on the head. They are -\n(1) Stitched wound with irregular margins 1 c.m. on the back part of left frontal region about 2 c.m. to the left of mid line. Tissues underneath were lacerated and depression in this area was present;\n(2) Stitched would with irregular margin 2.5 c.m. with abrasions all round in an area of 3 c.m. on the vertex in mid line i.e. in the back part of parietal region.\nDr. Bishnu Kumar further stated as follows:\n\"On opening head effusion of blood in scalp in whole of the frontal region on the both sides and parietal and temporal region on left side was also present. Depressed communicated fracture involving left frontal and parietal bones was present. From three sides of this communited fracture, fissured fracture was going. On the right side this fracture was continuous with the separation of the suture which ended at the junction of middle and front fossa. On the front and fissured fracture was traversing on the front fossa and joining the fracture coming from the middle fossa. Plenty of subdural haemorrhage covering whole of right cerebral hemisphere and subsrachnoid haemorrhage in plenty was present.......... In my opinion death in this case was due to intracramial haemorrhage and fractured skull consequent to head injury caused by some blunt object or surface.\"\n(The above quotation is as printed in the paper book.)\n8.  No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal.\n9. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstances, the appellant's conviction under Section 302, I.P.C. was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325, read with S. 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts.\n10.  Therefore, we set aside the conviction under Section 302, I.P.C. and convict the appellant under Section 325, read with Section 34, and sentence him to five years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of the order passed against him by the High Court.\nOrder accordingly.\n"}
+{"id": "RcoreogrNw", "title": "", "text": "Virsa Singh. v The State Of Punjab\nSupreme Court of India\n\n11 March 1958\nCriminal Appeal No. 90  of 1957.\nThe Judgment was delivered by: Vivian Bose, J.\n1.  The appellant Virsa Singh has been sentenced to imprisonment for life under s. 302 of the Indian Penal Code for the murder of one Khem Singh. He was granted special leave to appeal by this Court but the leave is limited to \"the question that on the finding accepted by the Punjab High Court what offence is made out as having been committed by the petitioner.\"\n2.  The appellant was tried with five others under sss. 302/49, 324/149 and 323/149 Indian Penal Code. He was also charged individually under s. 302.\n3. The other, were acquitted of the murder charge by the first Court but were convicted under ss. 326, 324 and 323 read with s. 149, Indian Penal Code. On appeal to the High Court they were all acquitted.\n4.  The appellant was convicted by the first Court under s. 302 and his conviction and sentence were upheld by the High Court.\n5. There was only one injury on Khem Singh and both Courts are agreed that the appellant caused it. It was caused as the result of a spear thrust and the doctor who examined Khem Singh, while he was still alive, said that it was \"a punctured wound 2 \"x 1/2\" transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. He also said that: \"Three coils of intestines were coming out of the wound.\" The incident occurred about 8 p. m. on July 13, 1955. Khem Singh died about 5 p. m. the following day. The doctor who conducted the postmortem described the injury as \"an oblique incised stitched wound 21/2\" on the lower part of left side of belly, 13\" above the left inguinal ligament. The injury was through the whole thickness of the abdominal wall. Peritonitis was present and there was digested food in that cavity. Flakes of pus were sticking round the small intestines and there were six cuts......... at various places, and digested food was flowing out from three cuts.\"\n6.  The doctor said that the injury was sufficient to cause death in the ordinary course of nature.\n7. The learned Sessions Judge found that the appellant was 21 or 22 years old and said:\n\"When the common object of the assembly seems to have been to cause grievous hurts only, I do not suppose Virsa Singh actually had the intention to cause the death of Khem Singh, but by a rash and silly act he gave a rather forceful blow, which ultimately caused his death. Peritonitis also supervened and that hastened the death of Khem Singh. But for that Khem Singh may perhaps not have died or may have lived a little longer.\"\n8.  Basing on those facts, he said that the case fell under s. 300, 3rdly and so he convicted under s. 302, Indian Penal Code.\n9. The learned High Court Judges considered that the whole affair was sudden and occurred on a chance meeting. But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one.\n10.  It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300, 3rdly was quoted:\n\"If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.\"\n11. It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, \"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.\"\n12.  This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the \"thirdly\" would be unnecessary because the act would fall under the first part of the section, namely- \"If the act by which the death is caused is done with the intention of causing death.\"\n13. In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender: \"If it is done with the intention of causing bodily injury to any person.\"\n14.  It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.\n15. Once that is found, the enquiry shifts to the next clause- \"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.\" The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it, that is to say, if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though all injury to the heart is shown to be present, the intention to inflict ail injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining \"and the bodily injury intended to be inflicted is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted.\n16.  Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarly proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broadbased and simple and based on common sense: the kind of enquiry that\" twelve good men and true could readily appreciate and understand.\n17.  To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly ; First, it must establish, quite objectively, that a bodily injury is present ;\n18. Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.\n19.  Once these three elements are proved to be present, the enquiry proceeds further and,\n20. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.\n21.  This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. We were referred to a decision of Lord Goddard in R v. Steane, [1947] 1 All E. R. 813 where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved.\n22. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that s. 300 3rdly requires, and how is it to be proved ? The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that:\n\"if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted.\"\n23. We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment:\n\"No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged.\"\n24.  That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.\n25. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan, (1917) I. L. R. 41 Bom. 27 where Beaman J. says that- \"Where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended.\" With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If be can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.- But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.\n26.  It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury.\n27. The difference is not One of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture.\nThe appeal is dismissed.\nAppeal dismissed.\n"}
+{"id": "uhvPU1S8Lv", "title": "", "text": "C.S. D. Swamy v State\nSupreme Court of India\n\n21  May  1959\nCriminal Appeal No. 177\nof 1957.\nThe Judgment was delivered by : B. P. Sinha, J.\n1.  This appeal by special leave is directed against the judgment and order of the High Court on Judicature for the State of Punjab at Chandigarh dated April 11, 1957, affirming those of the Special Judge, Delhi, dated January 19, 1955, convicting the appellant under s. 5(2) of the Prevention of Corruption Act (2 of 1947). The sentence passed upon the appellant was six months' rigorous imprisonment. The facts leading upto this appeal, may shortly be stated as follows: During and after the Second World War, with a view to augmenting the food resources of the country, the Government of India instituted a \"Grow More Food Division\" in the Ministry of Agriculture. S. Y. Krishnaswamy, a Joint Secretary in; that Ministry, was placed in charge of that Division, with effect from January 2, 1947. The appellant was working in that Department as Director of Fertilizers. He was a former employee of the well-known producers of fertilizers, etc., called \"Imperial Chemical Industries \". Fertilizers were in short supply and, therefore large quantities of such fertilizers had to be imported from abroad. As chemical fertilizers were in short supply not only in India but elsewhere also, an international body known as the \" International Emergency Food Council \" (I.E.F.C.) had been set up in United States of America, and India was a member of the same. That body used to consider the requirements of different countries in respect of fertilizers, and used to make allotments. Russia was not a member of that Organisation. Towards the end of 1946, a Bombay firm, called 'Messrs. Nanavati and Company', which used to deal in fertilizers and had bussiness contcts with Russia, offered to supply ammonium sulphate,from Russia to the Government of India. In the years 1947 and 1948, considerable quantities of ammonium sulphate were obtained through Messrs. Nanavati and Company aforesaid. One D. N. Patel, who was a former employee of Messrs. Nanavati and Company, joined a partnership business under the style of Messrs. Agri Orient Industries Limited of Bombay'. This firm obtained a contract from the Government for the supply of twenty thousand tons of ammonium sulphate from United States of America, in February, 1950. In the course of this business deal, the said patel experienced some difficulty in obtaining Government orders regarding some consignments. The appelant was approached in that connection; and it is aleged that Patel paid to the appellant Rs. 10,000 at Bombay as bribe for facilitating matters. But in spite of the alleged payment, difficulties and delays occurred and the consignments, even after they had reached heir destination in India, were not moving fast enough, thus, causing considerable loss to the firm in which Patel was interested. Patel, therefore approached Shri K. M. Munshi who was then the Minister For Food and Agriculture in Delhi, and disclosed to him the alleged payment of bribe of Rs. 10,000, as also the fact that the appellant had been receiving arge sums of money by way of bribes for showing favours in the discharge of his duties in the Department. The Minister aforesaid directed thorough enquiries to be made, and the matter was placed in the hands of the Inspector-General of Special Police Establishment. A departmental committee was also set up of three senior officers of the Department to hold a departmental inquiry, and ultimately, as a result of that inquiry, the Minister passed orders of dismissal of the appellant, in August, 1950. A further inquiry in the nature of a quasi-judicial inquiry, was held by the late Mr. Justice Rajadhyaksha of the Bombay High Court, in 1951. The inquiry related to matters concerned with the import of fertilizers into India. After receipt of the report of the inquiry by the late Mr. Justice Rajadhyaksha, in January, 1952, and after consideration of the matters disclosed in that report, a first information report was lodged on April 4, 1952, and thorough investigations were made into the complaints. The result was that two cases were instituted.\n2.  The first one related to an-\" alleged conspiracy involving the appellant, Krishnaswamy and one of the proprietors of Messrs. Nanavati and Company, and several others, relating to bribery and corruption in connection with the supplies of ammonium sulphate from Russia. With that case, we are not concerned here. The second case, out of which the present appeal arose, was instituted against two persons, namely the appellant and Krishnaswamy, that they had entered into a conspiracy to receive bribes and presents from various firms, in connection with the import of fertilizers. The learned Special Judge, who heard the prosecution evidence, came to the conclusion that it did not disclose any conspiracy as alleged, except in certain instances which formed the subject-matter of the charge of conspiracy which was being tried separately, as aforesaid. The present case, therefore, proceeded against the appellant alone under two heads of charge, namely, (1) that he had been habitually accepting or obtaining, for himself or for others, illegal gratifications from a number of named firms and others, in connection with the import and distribution of fertilizers s. 5(1) (a) of the Prevention of Curruption Act, 1947 (hereinafter referred to as 'the Act'), and (2) that he had been habitually receiving presents of various kinds by abusing his position as a public servants. 6 (1) (d) of the Act. The High Court, in agreement with the learned Special Judge, found the evidence of P. Ws. 9 and 10, who were the principal prosecution witnesses as regards the passing of certain sums of money from certain named firms to the appellant, as wholly unreliable. Further more, Patel, being in the position of an accomplice, his evidence did not find sufficient corroboration from other facts and circumstances proved in the case. The High Court, not being is a position to accept the tainted evidence aforesaid, found that the case of payment of particular sums of money by way of bribes, had not been established. But relying upon the presumption under sub-s. (3) of s. 8 of the Act, the High Court came to the conclusion that the appellant had not satisfactorily accounted for the receipt of Rs. 73,000 odd in cash and about Rs. 18,000 by cheques, during the years 1947 and 1948, which sums were wholly disproportionate to the appellant's known source of income, namely, his salary as a Government servant, and that, therefore, he was guilty of criminal mis conduct in the discharge of his official duties. In that view of the matter, the High Court confirmed the conviction and sentence of six months' rigorous imprisonment, passed by learned Special Judge of Delhi.\n3.  The learned counsel for the appellant has contended (1) that on the admitted facts, the ingredients of s. 5(3) of the Act, had not been established, (2) that when the charge in respect of specific instances of corruption, has not been proved, as found by the courts below, it should have been held that the contrary of the presumption contemplated by s. 5(3), namely, of the guilt of criminal misconduct, had been established, and (3) that the appellant's statement under s. 342 of the Code of Criminal Procedure, as also his statements contained in his written statement, had not been proved to be false, and that, therefore, it should have been held that the case against the appellant had not been proved beyond all reasonable doubt.\n4.  It is true that s. 5(3) of the Act, does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances a rule which is a complete departure from the established principles of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him. With reference to the provisions of s. 5(3) of the Act, it has been contended, in the first instance, that the charge of criminal misconduct in the discharge of his official duties, is now confined to the fact as disclosed in his bank accounts with the Imperial Bank of India (New Delhi Branch) and the Chartered Bank of India, Australia and China (Chandni Chowk Branch), that his nett credit with those banks totalled upto a figure just over Rs. 91,000. He accounted for that large balance by stating that he was the only son of his father who had been able to give him advanced education in England for a period of over seven years; that after his return to India, he had been holding highly paid posts for about 20 years in the Imperial Chemical Industries, in the Army and in the Government of India; that he had no children and no other dependants except his wife; that with his limited household expenses, he was able to save a good round sum out of his salary and allowances which were considerable, because his duty took him throughout the length and breadth of the country, thus enabling him to earn large sums of money by way of travelling allowances which he saved by staying with his friends and relations during his official tours. He added that he had received a gratuity for services rendered to the Army, and also considerable sums of money as his provident fund from the Imperial Chemical Industries, towards the end of November, 1947. He also stated that his deposits in the two banks aforesaid, represented sums of money saved in cash out of his salaries, allowances and gifts from his parents, as also re-payments of loans advanced by him to his friends while he was in the Army, and later. He added that some of the deposits in cash were really re-deposits of earlier withdrawals from the banks, as also the sale-proceeds of his old car sold in June, 1948, for Rs. 5,500, together with the sale-proceeds of gold jewelry belonging to his wife. He also tried to explain the large deposits of cash in 1948, by alleging that he had borrowed a sum of rupees 20,000 from one Ganpat Ram on a pronote (which he, later on, re-paid and obtained a receipt), with a view to building a house of his own in Delhi, but as that negotiation fell through, he deposited that cash amount in his account in the two banks aforesaid in August, 1948, as the creditor aforesaid would not accept re-payment of the loan within a period of two years, unless the interest for that period was also paid at the same time. With reference to those statements of the accused from the dock, it was contended by the learned counsel for the accused that in view of those facts, it could not be said that the accused had not accounted for those large deposits with the two banks aforesaid. The High Court has pointed out that the matters alleged in the , statement aforesaid of the accused, were capable of being easily proved by evidence which had not been adduced; that allegation was no proof, and that his lucrative posts in the Imperial Chemical Industries and in the Army, were matters of history in relation to the period for which the charge had been framed. The High Court, therefore, found it impossible to accept the appellant's bare statement from the dock as to how amounts earned far in the past, could find their way into the banks during the years 1947 and 1948. It has been repeatedly observed by this Court that this Court is not a Court of criminal appeal, and we would not, therefore, examine the reasons of the High Court for coming to certain conclusions of fact. Apparently, the High Court considered all the relevant statements made by the accused under s. 342 of the Code of Criminal Procedure and in his written statement, and came to the conclusion that those statements had not been substantiated. We cannot go behind those findings of fact.\n5.  Reference was also made to cases in which courts had held that if plausible explanation had been offered by an accused person for being in possession of property which was the subject-matter of the charge, the court could exonerate the accused from criminal responsibility for possessing incriminating property. In our opinion, those cases have no bearing upon the charge against the appellant in this case, because the section requires the accused person to \" satisfactorily account.\" for the possession of pecuniary resources or property disproportionate to his known sources of income. Ordinarily, an accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen (see illustration (a) to s. 114 of the Indian Evidence Act, 1872). The rule of law is that if there is a prima facie explanation of the accused that he came by the stolen goods in an honest way, the inference of guilty knowledge is displaced. This is based upon the well established principle that if there is a doubt in the mind of the court as to a necessary ingredient of an offence, the benefit of that doubt must go to the accused. But the Legislature has advisedly used the expression \"satisfactorily account\". , The emphasis must be on the word \" satisfactorily \", and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance.\n6.  Another argument bearing on the same aspect of the case, is that the prosecution has not led evidence to show as to what are the known sources of the appellant's income. In this connection, our attention was invited to the evidence of the Investigating Officers, and with reference to that evidence, it was contended that those officers have not said, in terms, as to what were the known sources of income of the accused, or that the salary was the only source of his income. Now, the expression \" known sources of income \" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that \" known sources of income \" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters \" specially within the knowledge\" of the accused, within the meaning of s. 106 of the Evidence Act. The prosecution can only lead evidence, as it has done in the instant case, to show that the accused was known to earn his living by service under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very substantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a, Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income. It may be that the accused may have made statements to the Investigating Officers as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution. In the present case, the prosecution has adduced the best evidence as to the pecuniary resources of the accused person, namely, his bank accounts. They show that during the years 1947 and 1948, he had credit at the banks, amounting to a little over Rs. 91,000. His average salary per mensem, during the relevant period, would be a little over Rs. 1,100. His salary, during the period of the two years, assuming that the whole amount was put into the banks, would be less than one-third of the total amount aforesaid, to his credit. It cannot, therefore, be said that he was not in possession of pecuniary resources disproportionate to his known sources of income. It was next contended that the burden cast on the accused by sub s.(3) of s. 5 of the Act, was not such a heavy burden as lies on the prosecution positively to prove all the ingredients of an offence.\n7.  In that connection, reference was made to a number of decisions, particularly Rex v. Carrbriant, (1943) 1 K. B. 607; to the effect referred to under Art. 3907 at p. 1511 in Archbold Criminal Pleading Evidence and Practice', 34th Edn. that the onus of proof lies on the accused person to show that a certain proved payment was in fact not a corrupt payment, but that the burden is less heavy than that which, ordinarily, lies on the prosecution to prove its case beyond all reasonable doubt. Reference was also made to Otto George Gfeller v. The King, A.I.R. 1943 P.C. 211 1943 Indlaw PC 59;Hate Sing Bhagat Singh v. State of Madhya Bharat, A.I R. 1953 S.C. 468 1951 Indlaw SC 81.; and Regina v. Dunbar, [1958] 1 Q.B. 1; In our opinion, those decisions do not assist the appellant in the present case. In this case, no acceptable evidence, beyond the bare statements of the accused, has been adduced to show that the contrary of what has been proved by the prosecution, has been established, because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct 'in the discharge of his official duties \" unless the contrary is proved.\" The words of the statute are peremptory, and the burden must lie all the time on the accused to prove the contrary. After the conditions laid down in the earlier part of sub-s. (3) of s. 5 of the Act, have been fulfilled by evidence to the satisfaction of the court, as discussed above, the court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and this presumption continues to hold the field unless the contrary is proved, that is to say, unless the court is satisfied that the statutory presumption has been rebutted by cogent evidence. Not only that, the section goes further and lays down in forceful words that \" his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.\"\n8.  Lastly, it was argued that when the section speaks of the burden being on the accused person to prove the contrary, it must mean adducing evidence to disprove the charge. The argument proceeds that as in the present case, the facts and circumstances mentioned in the charge had not been proved, the accused person must be acquitted as having disproved the charge with reference to the particular cases of bribery which had been held not proved. In our opinion, there is a fallacy in this argument. The finding of the High Court and the court below, is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of s. 5(1)(a) of the Act, but the failure to bring the charge home to the accused under s. 5(1)(a), does not necessarily lead to the legal effect contended for. As soon as the requirements of sub-section (3) of s. 5 have been fulfilled,the Court will not only be justified in making, but is called upon to make, the presumption that the accused person is guilty of criminal misconduct within the meaning of s. 5(1)(d). In order to succeed in respect of the charge under s. 5(1)(a), the prosecution has to prove that the accused person had accepted or obtained or agreed to accept or attempted to obtain from any person any gratification by way of bribe within the meaning of s. 161 of the Indian Penal Code. That charge failed because the evidence of P.W. 9 was not accepted by' the High Court or the trial court. The charge under s. 5(1)(d) does not require any such proof. If there is evidence forthcoming to satisfy the requirements of the earlier part of sub-s. (3) of s. 5, conviction for criminal misconduct can be had on the basis of the presumption which is a legal presumption to be drawn from the proof of facts in the earlier part of the sub-s. (3) aforesaid. That is what has been found by the courts below against the accused person. Hence, the failure of the charge under cl. (a) of sub-s. (1) of s. 5, does not necessarily mean the failure of the charge under s. 5(1)(d).\n9.  In our opinion, the judgment of the High Court is correct, and the appeal is, accordingly, dismissed. If the accused is on bail, he must surrender to his bail bond.\nAppeal dismissed.\n"}
+{"id": "3MsHarAJOC", "title": "", "text": "T. N. Godavarman Thirumulkpad v Union of India and Others\nSupreme Court of India\n\n12 December 1996\nW.Ps. (C) No. 202 of 1995 (Under Article 32 of the Constitution of India) with No. 171 of 1996\nThe Order of the Court was as follows:\n1. In view of the great significance of the points involved in these matters, relating to the protection and conservation of the forests throughout the country, it was considered necessary that the Central Government as well as the Governments of all the States are heard.\nAccordingly, notice w as issued to all of them. We have heard the learned Attorney General for the Union of India, learned counsel appearing for the States and the parties/applicants and, in addition, the learned Amicus Curiae, Shri H.N. Salve, assisted by Sarvashri U. U. Lalit, Mahender Das and P.K. Manohar. After hearing all the learned counsel, who have rendered very able assistance to the court, we have formed the opinion that the matters require a further indepth hearing to examine all the aspects relating to the National Forest Policy. For this purpose, several points which emerged during the course of the hearing require further study by the learned counsel and, therefore, we defer the continuation of this hearing for some time to enable the learned counsel to further study these points.\n2. However, we are of the opinion that certain interim directions are necessary at this stage in respect of some aspects. We have heard the learned Attorney General and the other learned counsel on these aspects.\n3. It has emerged at the hearing, that there is a misconception in certain quarters about the true scope of theForest Conservation Act, 1980 (for short 'the Act') and the meaning of the word \"forest\" used therein. There is also a resulting misconception about the need of prior approval of the Central Government, as required by S. 2 of the Act, in respect of certain activities in the forest area which are more often of a commercial nature. It is necessary to clarify that position.\n4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and fore matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word \"forest: must be understood according to its dictionary meaning. This description cover all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of S. 2(i) of the Forest Conservation Act. The term \"forest land\", occurring in Section 2, will not only include \"forest\" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of S. 2 of the Act. The provisions enacted in theForest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works 1986 Indlaw SC 602 and ors. versus State of Gujarat and ors. (1987 (1) SCC 213), Rura' Litigation and Entitlement Kendra versus State of U.P. (1989 Suppl. (1) SCC 504 1988 Indlaw SC 586), and recently in the order dated 29th November, 1996 in W.P.(C) No.749/95 (Supreme Court Monitoring Committee vs. Mussorie Dehradun Development Authority and ors.).\nThe earlier decision of this Court in State of Bihar Vs. BanshiRam Modi and ors. (1985 (3) SCC 643 1985 Indlaw SC 160) has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.\n5. We further direct as under:-\n\"I. General:\n1. In view of the meaning of the word \"forest\" in the Act, it is obvious that prior approval of the Central Government is required for any non-forest activity within the area of any \"forest\". In accordance with S. 2 of the Act, all on-going activity within any forest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is, therefore, clear that the running of saw mills of any kind including veneer or ply-wood mills, and mining of any mineral are non-forest purposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity is prima facie violation of the provisions of the Forest Conservation Act, 1980. Every State Government must promptly ensure total cessation of all such activities forthwith.\n2. In addition to the above, in the tropical wet ever- green forests of Tirap and Changlang in the State of Arunachal Pradesh, there would be a complete ban on felling of any kind of trees therein because of their particular significance to maintain ecological balance needed to preserve bio-diversity. All saw mills, veneer mills and ply- wood mills in Tirap and Changlang in Arunachal Pradesh and within a distance of 100 Kms. from its border, in Assam, should also be closed immediately. The State Governments of Arunachal Pradesh and Assam must ensure compliance of this direction.\n3. The felling of trees in all forests is to remain suspended except in accordance with the Working Plans of the State Governments, as approved by the Central Government. In the absence of any Working Plan in any particular State, such as Arunachal Pradesh, where the permit system exists, the felling under the permits can be done only by the Forest Department of the State Government or the State Forest Corporation.\n4. There shall be a complete ban on the movement of cut trees and timber from any of the seven North-Eastern States to any other State of the country either by rail, road or water-ways. The Indian Railways and the State Governments are directed to take all measures necessary to ensure strict compliance of this direction. This ban will not apply to the movement of certified timber required for defence or other Government purpose. This ban will also not affect felling in any private plantation comprising of trees planted in any are which is not a forest.\n5. Each State Government should constitute within one month an Expert Committee to:\n(i) Identify areas which are \"forests\", irrespective of whether they are so notified, recognised or classified under any law, and irrespective of the ownership of the land of such forest;\n(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and\n(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.\n6. Each State Government should within two months, file a report regarding:-\n(i) the number of saw mills, veneer and plywood mills actually operating within the State, with particulars of their real ownership;\n(ii) the licensed and actual capacity of these mills for stock and sawing;\n(iii) their proximity to the nearest forest; (iv) their source of timber.\n7. Each State Government should constitute within one month, an Expert Committee to assess : (i) the sustainable capacity of the forests of the State qua saw mills and timber based industry;\n(ii) the number of existing saw mills which can safely be sustained in the State;\n(iii) the optimum distance from the forest, qua that State, at which the saw mill should be located.\n8. The Expert Committees so constituted should be requested to give its report within one month of being constituted.\n9. Each State Government would constitute a Committee comprising of the Principal Chief Conservator of Forests and another Senior Officer to oversee the compliance of this order and file status reports.\"\nII. FOR THE STATE OF JAMMU & KASHMIR:\n\"1. There will be no felling of trees permitted in any \"forest\", public or private. This ban will not affect felling in any private plantations comprising of trees planted by private persons or the Social Forestry Department of the State of Jammu & Kashmir and in such plantations, felling will be strictly in accordance with law.\n2. In 'forests', the State Government may either departmentally or through the State Forest Corporation remove fallen trees or fell and remove diseased or dry standing timber, and that only from areas other than those notified under the Jammu & Kashmir Wild Life Protection Act, 1978 or any other law banning such felling or removal of trees.\n3. For this purpose, the State Government will constitute an Expert Committee comprising of a representative being an IFS Officer posted in the State of Jammu & Kashmir, a representative of the State Government, and two private experts of eminence and the Managing Director of the State Forest Corporation (as Member Secretary) who will fix the qualitative and quantitative norms for the felling of fallen trees, diseased and dry standing trees. The State shall ensure that the trees so felled and removed by it are strictly in accordance with these norms.\n4. Any felling of trees in forest or otherwise or any clearance of land for execution of projects, shall be in strict compliance with the Jammu & Kashmir Forest Conservation Act, 1990 and any other laws applying thereto. However, any trees so felled, and the disposal of such trees shall be done exclusively by the State Forest Corporation and no private agency will be permitted to deal with this aspect. This direction will also cover the submerged areas of the THEIN Dam.\n5. All timber obtained, as aforesaid or otherwise, shall be utilised within the State, preferably to meet the timber and fuel wood requirements of the local people, the Government and other local institutions.\n6. The movement of trees or timber (sawn or otherwise) from the State shall, for the present, stand suspended, except for the use of DGS & D, Railways and Defence. Any such movement for such use will -\n(a) be effected after due certification, consignment-wise made by the Managing Director of the State Corporation which will include certification that the timber has come from State Forest Corporation sources; and\n(b) be undertaken by either the Corporation itself, the Jammu & Kashmir Forest Department or the receiving agency.\n7. The State of Jammu & Kashmir will file, preferably within one month from today, a detailed affidavit specifying the quantity of timber held by private persons purchased from State Forest Corporation Depots for transport outside the State (other than for consumption by the DGS & D, Railways and Defence). Further directions in this regard may be considered after the affidavit is filed.\n8. No saw mill, veneer or plywood mill would be permitted to operate in this State at a distance of less than 8 Kms. from the boundary of any demarcated forest areas. Any existing mill falling in this belt should be relocated forthwith.\"\nIII. FOR THE STATE OF HIMACHAL PRADESH AND THE HILL REGIONS OF THE STATES OF UTTAR PRADESH AND WEST BENGAL:\n\"1. There will be no felling of trees permitted in any forest, public or private. This ban will not affect felling in any private plantation comprising of trees planted in any area which is not a 'forest'; and which has not been converted from an earlier \"forest\". This ban will not apply to permits granted to the right holders for their bonafide personal use in Himachal Pradesh.\n2. In a 'forest', the State Government may either departmentally or through the State Forest Corporation remove fallen trees or fell and remove diseased or dry standing timber from areas other than those notified u/s. 18 or S. 35 of the Wild Life Protection Act, 1972 or any other Act banning such felling or removal of trees.\n3. For this purpose, the State Government is to constitute an expert Committee comprising a representative from MOEF, a representative of the State Government, two private experts of eminence and the MD of the State Forest Corporation (as Member Secretary), who will fix the qualitative and quantitative norms for the felling of fallen trees and diseased and standing timber. The State shall ensure that the trees so felled and removed are in accordance with these norms.\n4. Felling of trees in any forest or any clearance of forest land in execution of projects shall be in strict conformity with theForest Conservation Act, 1980 and any other laws applying thereto. Moreover, any trees so felled, and the disposal of such trees shall be done exclusively by the State Forest Corporation and no private agency is to be involved in any aspect thereof.\"\nIV. FOR THE STATE OF TAMIL NADU:\n\"1. There will be a complete ban on felling of trees in all forest areas'. This will however not apply to:-\n(a) trees which have been planted and grown, and are not of spontaneous growth, and\n(b) are in areas which were not forests earlier, but were cleared for any reason.\n2. The State Government, within four weeks from today, is to constitute a committee for identifying all \"forests\".\n3. Those tribals who are part of the social forestry programme in respect of patta lands, other than forests, may continue to grow and cut according to the Government Scheme provided that they grow and cut trees in accordance with the law applicable.\n4. In so f ar as the plantations (tea, coffee, cardamom etc.) are concerned, it is directed as under:\n(a) The felling of shade trees in these plantations will be -\n(i) limited to trees which have been planted, and not those which have grown spontaneously; ii) limited to the species identified in the TANTEA report;\n(iii) in accordance with the recommendations of (including to the extent recommended by) TANTEA; and\n(iv) under the supervision of the statutory committee constituted by the State Government.\n(b) In so far as the fuel trees planted by the plantations for fuel wood outside the forest area are concerned, the State Government is directed to obtain within four weeks, a report from TANTEA as was done in the case of Shade trees, and the further action for felling them will be as per that report. Meanwhile, eucalyptus and wattle trees in such area may be felled by them for their own use as permitted by the statutory committee.\n(c) the State Government is directed to ascertain and identify those areas of the plantation which are a \"forest\" and are not in active use as a plantation. No felling of any trees is however to be permitted in these areas, and sub- paras (b) and (c) above will not apply to such areas.\n(d) There will be no further expansion of the plantations in a manner so as to involve encroachment upon (by way of clearing or otherwise) of \"forests\".\n5. As far as the trees already cut, prior to the interim order of this court dated December 11, 1995 are concerned, the same may be permitted to be removed provided they were not so felled from Janmam land. The State Government would verify these trees and mark them suitably to ensure that this order is duly complied with. For the present, this is being permitted as a one time measure.\"\n6. Insofar as felling of any trees in Janmam lands is concerned (whether in plantations ore otherwise), the ban on felling will operate subject to any order made in the Civil Appeal Nos. 367 to 375 of 1977 in C.A. Nos. 1344-45 of 1976. After the order is made in those Civil Appeals on the I.As. pending therein, if necessary, this aspect may be re- examined.\n7. This order is to operate and to be implemented, notwithstanding any order at variance, made or which may be made by any Government or any authority, tribunal or court, including the High Court.\n8. The earlier orders made in these matters shall be read, modified wherever necessary to this extent. This order is to continue, until further orders. This order will operate and be complied with by all concerned, notwithstanding any order at variance, made or which my be made hereafter, by any authority, including the Central or any State Government or any court (including High Court) or Tribunal.\n9. We also direct that notwithstanding the closure of any saw mills or other wood-based industry pursuant to this order, the workers employed in such units will continue to be paid their full emoluments due and shall not be retrenched or removed from service for this reason.\n10. We are informed that the Railway authorities are still using wooden sleepers for laying tracks. The Ministry of Railways will file an affidavit giving full particulars in this regard including the extent of wood consumed by them, the source of supply of wood, and the steps taken by them to find alternatives to the use of wood.\n11. I.A. Nos. 7,9,10,11,12,13 and 14 in Writ Petition (Civil) No. 202 of 1995 and I.A. Nos. 1,3,4,5,6,7,8 & 10 in Writ Petition (Civil) No. 171 of 1996 are disposed of, accordingly. List the matter on February 25, 1997 as part-heard for further hearing.\nOrder accordingly.\n"}
+{"id": "yE6752aJg8", "title": "", "text": "K.R.Shinivas v R.M. Premchand\nSupreme Court of India\n\n30 September 1994\nC.A. No. 6589 of 1994\nThe Order of the Court was as follows:\n1. Leave granted in both matters.\n2. K.R. Srinivas, the appellant in civil appeal arising out of SLP (C) No.2828 of 1994 is aggrieved against the order of a Division Bench of the Andhra Pradesh High Court dated 17-12-1993 passed in Writ Appeal No.53 of1993 whereby the Writ Petition No. 2082 of 1991, preferred by Dr R.M. Premchand the first respondent u/art. 226 of the Constitution, was allowed in public interest. Since certain adverse remarks came to be made by the Division Bench against the father of K.R. Srinivas i.e. Professor K.V Ramana, the then Vice-Chancellor of the Andhra University, the other appeal arising out of SLP (C) No. 2392 of1994 seeks the limited relief of expunction of all those remarks.\n3. We are refraining from giving herein the facts elaborately, for we have felt a sense of discomfort and uneasiness in which the High Court's jurisdiction in public interest was invoked at a point of time when the appellant stood cornered and cross-checking became impossible by the court.\n4. In the year 1988 Professor K.V Ramana appellant was the Vice Chancellor of the Andhra University, during which time his son K.R. Srinivas appellant sat for the final examination of Bachelor of Marine Engineering. The result declared disclosed that he had passed therein in second division. He applied to the University authorities on two different dates for revaluation of his answer books pertaining to three subjects:\n1. Industrial Engineering and Management,\n2. Production Technology II Metallurgy, and\n3. Design and Machine Element Part 11.\n5. The re-evaluated result brought him substantially Higher marks. As a result K.R. Srinivas got a first division and a degree in B.E. Marine Engineering on that basis was awarded to him. Allegedly as a result thereof he got a coveted job. There was a furore that the results were manipulated because of the Vice-Chancellor's interest in his son. In the meantime since procedural irregularities in the framing of the result of various candidates got to a scandal, the Government of Andhra Pradesh appointed an Enquiry Commission. A couple of years went by.\nIt is in the year 1991 that the respondent Dr R.M. Premchand moved the High Court in a writ petition u/art. 226 of the Constitution challenging the result of the appellant only in Public interest inter alia on the ground that neither the University was competent to re evaluate the papers nor could such result be achieved since there were procedural irregularities as also that the result had been manipulated. A learned Single Judge of the High Court elaborately went into the matter. He steered through the air of suspicion dismissing the writ petition. A Division Bench of the High Court reversed the learned Single Judge holding that the Result of the appellant had been manipulated. The degree awarded was however not cancelled. On the point of cancellation the Division Bench agreed with the learned Single Judge.\n6. While hearing these petitions on 15-9-1994 we were inspired to have a look at the answer books as also the question papers in which results had substantially been improved. We, therefore, required of the University counsel to produce before us the answer books as also the question papers for our inspection today. Anticipating their production we also required learned counsel for the parties to give us a list of examiners for the subjects involved available in the Universities and Institutions functioning in Delhi, together with their addresses and phone numbers, residential as well as official, if possible, so that we could establish contact with any of them. This effort was made to see for ourselves, on inviting the academics, whether there was a real error of assessment in the first result and further whether the rectification by revaluation was erroneous.\nThe other reason was to take away the exercise from Andhra Pradesh to a neutral place like Delhi and that too under our eye. We were hopeful that we would be able to do substantial justice in this way. Our hopes however stand dashed since we are informed that the answer books stood destroyed way back on 14-8-1989, much before the institution of the writ petition even. Now we have felt driven to the wall and have to submit to the fait accompli. One way is to toe the line of the High Court. The second one is to demolish everything. Pained as we are at the writ petitioner choosing the year 1991 for moving the High Court, when the answer books stood destroyed, we would rather opt for the second course. The only hope of Srinivas to emerge innocent, on the destruction of his answer books, stands destroyed. His despair has thus to be met in our remaining masters of the situation.\n7. It cannot be forgotten that a writ petitioner who comes to the court for relief in public interest must come not only with clean hands, like any other writ petitioner, but must further come with a clean heart, clean mind and a clean objective. We cannot assume that Dr R.M. Premchand, who at the relevant time was a Research Scholar and part and parcel of the University, did not know the regulations hereunder the answer books are destroyed within six months from the examination under formal orders of the functionaries. We cannot assume that Dr R.M. Premchand did not know about the destruction of the answer books of Srinivas at the time when he moved the High Court in public interest. If this be our impression Dr R.M. Premchand had no locus standi to move the High Court in public interest at that belated point of time.\nTherefore, we allow the appeal of Srinivas, set aside the order of the Division Bench of the High Court dated 17-12- 1993 in WA No. 53 of 1993 and restore the operative part of the order of the Single Bench of the High Court, added with the ground that Dr R.M. Premchand had no locus standi to move the High Court, in view of the facts and circumstances aforementioned. As a sequel all remarks against Professor K.V. Ramana in the judgment of the Division Bench of the High Court not only get expunged but the whole basis on which they rest stands effaced. His appeal too is allowed.\n8. This is the end result of both the appeals. There shall be no order as to costs.\nAppeals allowed\n"}
+{"id": "9vOWOU6mbj", "title": "", "text": "Janata Dal and Others v H. S. Chowdhary and Others\nSupreme Court of India\n\n28 August 1992\nCr.A. Nos. 304 of 1991 (From the Judgment and Order Dt. 17 December 1990 of the Delhi High Court in Criminal Misc. No. 2656 of 1990 in Criminal Miscellaneous Main No. 1821 of 1990) 305-311 and W.P. (Cri.) No. 114 of 1991\nThe Judgment was delivered by: S. R. Pandian, J.\n1. We gave our conclusions in our earlier Order dated 27th August 1991 1991 Indlaw SC 231 reserving the reasons to be given later. Accordingly, we render our reasons in the present judgment.\n2. We feel that a prefatory note, though not the detailed facts of the case, is necessary for disposal of these appeals and writ petition. The facts culled out from various documents placed before this court are as follows:\nThe Ministry of Defence, Government of India approved in August, 1980 a proposal forwarded by Army Headquarters recommending, inter alia, the introduction of 155 mm calibre medium gun both towed and self-propelled to meet its defence operational requirements. The choice for obtaining the said gun system/guns was short listed in December, 1982 to (1) M/ s. Sofma of France, (2) M/s. A.B. Bofors of Sweden, (3) M/s. International Military Services of U.K. and (4) M/s. Voest Alpine of Austria. In November, 1985, there was a further shortlisting of Sofma and Bofors. Finally, the order was placed by the Government of India with Bofors on 24th March, 1986 for the supply of 410 numbers (400 plus 10 free) of 155 mm Field Howitzer 77-B gun system/ spare guns vide contract No. 6(9)84/ D (GS-IV) for a total amount of SEK 8410.66 million (Swedish Kroners) (equivalent to about Rs. 1437.72 crores or Rs.14377.2 million). The related contract for supplying the gun package and other related agreements/ contracts were concluded and signed on 24th March 1986 with M/s. A. B. Bofors.\n3. On 17 April, 1987, some leading newspapers of our country gave prominent coverage to a Swedish Radio Broadcast made in the previous day, broadcasting that bribes had been paid to senior Indian politicians and key Defence figures to win the contract awarded by the Government of India to M/s. Bofors of Sweden on 24 March, 1986.\n4. The Swedish Radio repeated the allegation on 17 April, 1987 claiming that it had documentary proof of the payoffs in four instalments to Indian accounts in Swiss Banks and it had checked with Skandinaviska Enskilds Banken, the bankers for Bofors. On the other hand, Bofors denied paying any kickbacks to Indian politicians or officials for the deal involving the supply of 155 mm Towed howitzers and also issued a statement on 17th April, 1987, itself which statement reads thus:\n\"AB Bofors has not paid, or conspired to pay, any bribes in connection with the order. All allegations to the contrary are hereby categorically denied.\"\n5. The Government of India on 17th April, 1987 issued a statement denying the allegations contained in the news items based on the broadcast report, made by the Swedish Radio and Television in connection with the arms order placed on Swedish firm, Bofors and categorized the news item as false, baseless and mischievous. The part of the said statement reads thus:\n\"Government''s policy is not to permit any clandestine or irregular payments in contracts. Any breach of this policy by any one will be most severely dealt with.\"\n6. On 20th April, 1987, the Minister of Defence made a suo motu statement on the subject in Lok Sabha stating inter alia that on the eve of finalising the contract, in response to a reiteration of Government''s policy and a demand for confirmation, M/s. Bofors had replied, vide their letter of the 10th March, 1986 that they did not employ any Representative/ Agent in India for the project. However, for administrative services, e.g. hotel bookings, transportation, forwarding of letters, telexes etc., they use the services of a local firm.\n7. The Defence Minister further stated \"if any evidence is produced involving violations of the law, the matter will be thoroughly investigated and the guilty, whoever they may be, punished.\"\n8. A similar statement was made by the Minister of State for Defence in Rajya Sabha on 21st April, 1987.\n9. This issue created a storm of controversies both in the Lok Sabha and Rajya Sabha. Several issues were raised by the members in the respective Sabhas relating not only to the alleged kickbacks paid by M/s Bofors for winning the contract but also about the quality and suitability of the gun selected for procurement.\n10. On 20th April 1987, Shri Rajiv Gandhi, the then Prime Minister intervening in the debates in the Lok Sabha stated:\n\"And like Panditji has said now, you show us any evidence, we do not want proof. We will bring the proof. You show us any evidence that there has been involvement of middlemen, of payoffs or of bribes or commissions, we will take action and we will see that nobody however high-up is allowed to go free.\"\n11. The then Defence Minister following the assurance made by the then Prime Minister stated:\n\"The Prime Minister has already intervened on a number of occasions and has said that there are no charges at the moment and if evidence is asked for then we shall look into it. We shall inquire into it and if somebody is found guilty we will punish him. This is the essence of what Members have been asking.\"\n12. During the course of the discussion in Rajya Sabha and Lok Sabha, several members demanded a probe with full details by a Parliamentary Committee. When the matter stood thus on 4th June 1987, the Swedish Embassy in India, forwarded a copy of the Report dated 1st June, 1987 of the Swedish National Audit Bureau with a note to the Ministry of External Affairs, Government of India, stating that what was made available to the Government of India was only one part of the Report of SNAB but not report in its entirety and the rest was withheld by the Government of Sweden on the bank secrecy requirements. The summary of the observations of. the SNAB as extracted in the report of the JPC are as follows:\n\"that an agreement exists between AB Bofors and concerning the settlement of commission subsequently to the FH 77 deal; and\nthat considerable amounts have been paid subsequently to, among others, AB Bofors previous agent in India.\"\n13. However, the report did not disclose the names of the recipients of kickbacks as indicated above.\n14. This report of the SNAB (Swedish National Audit Bureau) was discussed by the then Prime Minister with the leaders of the opposition parties on 11 June, 1987. The Government decided to request the Speaker, Lok Sabha and the Chairman of the Rajya Sabha to set up a Joint Parliamentary Committee  to enquire into and establish the identities of the persons who received the payments. But the Speaker and the Chairman of the respective Sabhas declined to set up on their own the JPC to probe into the Bofors deal. Thereupon, the then Prime Minister during his meeting with the leader of the opposition in Parliament on 17 June, 1987 indicated that the Government would move a motion in the Monsoon Session of Lok Sabha for the appointment of a Parliamentary Committee to probe into the Bofors deal. Accordingly, the Minister of Defence  moved a motion on 29th July 1987 in the Lok Sabha for appointment of the JPC. While moving the motion, the Minister on 3rd August 1987 after recalling the whole. sequence of events stated inter alia as follows:\n\"Two facts emerged from a careful study of the Report of the Swedish National Audit Bureau. These are, firstly, that sizable payments were made in 1986. It would also be seen that the most crucial portion of the Report, which contains particulars of the recipients of the amounts paid by Bofors, have not been disclosed to us.\"\n15. Further in justification of the Constitution of JPC, the Defence Minister added that \"The Government has nothing to hide. The Government wants to get at the truth and that is why this Committee has been set up.\"\n16. Thereafter, certain substitute motions were moved by the Parliament members and ultimately after a discussion in both the houses, the JPC was constituted with the appointment of its Chairman on 28-8-88 totally consisting of 30 elected members - 20 from Lok Sabha and 10 from Rajya Sabha for making the inquiry into the following matters:\ni) Whether the procedures laid down for the acquisition of weapons and systems, were adhered to in the purchase of the Bofors'' gun;\nii) to ascertain the identity of the persons who received, and the purpose for which they received, payments of the following amounts:\na) SEK 170-250 million\nb) SEK 29.5 million\nc) SEK 2.5 million\nfrom M/s Bofors (as referred to in the Report of the Swedish National Audit Bureau, received by the Government of India on June 4, 1987);\niii) arising out of the enquiry, if there is prima facie evidence that M/ s Bofors have in addition to payments mentioned in (ii) above, made any other payments for securing the Indian contracts, the identity of the persons who received such payments shall be. ascertained;\niv) to determine if any Indian laws/ rules/ regulations have been violated either by M/s Bofors or by persons as indicated in (ii) and (iii) above.\n17. Of the elected members, two members by name Shri Mahabir Prasad and Smt. Sumati Oraon resigned w.e.f. 16-3-1988. One other member, Dr. K.G. Adiyodi died and three other members of the Committee ceased to be members of the Committee consequent on their retirement from Rajya Sabha w.e.f. 2-4-1988. In place of the members, who resigned and a member who died, three other members from the Lok Sabha were elected.\n18. The JPC submitted its report on 22nd April 1988 with its conclusion, the resultant portion of which reads as follows:\n(i) to (xii)\n(xiii) That there is no evidence to establish that the Bofors'' payment totalling SEK: 319.4 million involved a violation of any Indian law.\n(xiv) There is no evidence of any other payment having been made by Bofors for winning the Indian contract.\"\n19. One of the Members gave his note of dissent disagreeing with the conclusions of the Committee.\nThe Report of JPC reads as follows:\n\" The Committee note that during their discussions, in September, 1987 with the Government of India team, the Bofors officials gave the following information regarding the names of Companies and details of payments made to them by way of winding-up charges:-----\ni) SVENSKA INC. PANAMA - SEK 188.4 million\nii) MORESCO/ MOINEAO S. A. (PITCO) Geneva - SEK 81 million in three instalments of SEK 37 million, SEK 12 million and SEK 32 million.\niii) A.E. SERVICES Ltd.,.U.K. - SEK 50 million.\"\n20. It is further seen from the Report of the JPC that Mr. Lars Gothlin, Chief Jurist and Senior Vice-President of the Noble Industries was examined by the JPC and during the examination his attention was drawn to a statement of Mr. Thunholm, Chairman of the Noble Industries, which is the holding company of M/s. A.B. Bofors that so far as he was aware, payments had been made to Indians or to an Indian company in connection with the contract. Of course, the Chief Jurist finding himself in a piquant situation, said that the words of Dr. Thunholm were twisted.\n21. In spite of the conclusion in the Report of the JPC, allegations of malpractices in the deal with Bofors, payments of kickbacks and receipt of illegal gratification were persistently reiterated and the matter was relently agitated. Meanwhile, there was a change of Government. In the aforesaid circumstances, the Superintendent of Police, CBI/ DSPE/ ACU-IV, New Delhi registered a First Information Report on 22nd January 1990 in Crime No. RC 1(A)/90/ACU-IV under Section 120-B read with Sections 161, 162, 163, 164 and 165-A of the Indian Penal Code read with Ss. 5(2), 5(1) (d) and 5(2)/5(1)(c) of the Prevention of Corruption Act, 1947 read with Sections 409, 420, 468 and 471 of the Indian Penal Code against 14 accused of whom three are named, they being (1) Shri Martin Ardbo, former President of M/s. A.B. Bofors, Sweden, (2) Shri Chadha alias Win Chadha, S/o. Shri Assa Nand, President of M/s. Anatronic General Corporation/ Anatronic General Companies Ltd., C/ 4, Main Market, Vasant Vihar, New Delhi and Shri G.P. Hinduja, New Zealand House, Hay Market, London SW-1. The rest of the 11 accused are stated in general as directors/ employees/ holders/ beneficiaries of account code and public servants of the Government of India. The preface of the First Information Report shows that the case was registered \"on the basis of reliable information received from certain sources, certain facts and circumstances that have become available, through media reports dated 1st June 1987 of the Swedish National Audit Bureau, certain facts contained in the report dated 22nd April 1988 of the Joint Parliamentary Committee (JPC) and the report dated 28th April 1988 of the Comptroller and Auditor General of India (CAG)\". The FIR gives a detailed sequence of the events relating to the purchase of guns from M/s. A.B. Bofors, Sweden and the related agreements entered thereupon in violation of the Government''s policy i.e. not to involve any agent and the existing law of this land. Various allegations are made mention of in the FIR regarding the payments of bribes/ kickbacks and receipt of illegal gratification, the debates made in the Parliament, the correspondences among-the parties and the various findings of the JPC.\nIt is further averred in the First Information Report that even in the letter dated 3-10-86, sent to the Swedish National Bank, Bofors had referred to some of the payments to Svenska Inc. and the Code name ''Mont Blanc'' as \"commission payments\" and that the payment to M/s. Moresco /Moineao/SA/ Pitco, Geneva was deposited by Bofors in three code name accounts, namely, \"Lotus\" in Suissee Bank Corporation, 2 Rue de la Confederation 1204, Geneva; \"Tulip\" in Manufacturers Hannover Trust Company, 84 Rue du Rhone, 1204, Geneva and \"Mont Blane\" in Credit Suissee, 2 Place Belle Air, 1204, Geneva and that these payments to code name accounts are without mentioning or disclosing the payers'' names. FIR to the statement of Mr. Thulholm, Chairman of Noble Industries reading:\n\"As the report of JPC discloses, Shri Thulholm, Chairman of Noble Industries had stated that so far as he was aware, payments had been made to Indians or to an Indian company in connection with the contract. Shri Thulholm had also stated that he could not guarantee that bribes had not been paid. Bofors being a subsidiary of Noble Industries, these statements of Shri Thulholm are important.\"\n22. The core of the allegations in the FIR is that the accused, named and unnamed, entered into a criminal conspiracy, obtained illegal gratification in the form of money from BOFORS, a Swedish company through the agent/ firms/ companies/ persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants caused pecuniary advantage to themselves, BOFORS, the agents and others in awarding contracts to BOFORS for the supply of guns to the Government of India and in the transaction committed the offences of criminal breach of trust, cheating, forgery and using of forged documents. It appears that the CBI has commenced its investigation during the course of which it has recorded statements of witnesses and took into its custody various documents and files relating to this Bofors deal.\n23. While it was so, the CBI moved an application before the Special Judge, namely, Shri R.C. Jain requesting to issue a letter rogatory/ request to Switzerland urgently for getting the necessary assistance so that the investigation can be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated.\n24. Be it noted, the compelling reasons which necessitated the CBI to file that application have already been given in brief in our earlier order dated 27th August 1991 reported in 1991 Indlaw SC 231. Therefore, we are not repeating those facts in this final judgment. The Special-Judge after hearing the then Additional Solicitor General of India, Deputy Legal Advisor of CBI and Senior Public Prosecutor allowed that application by his order dated 5th February 1990. The relevant portion of which reads thus:\n\"In the result, the application of the CBI is allowed to the extent that a request to conduct the necessary investigation and to collect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs, Government of India subject to the filing of the requisite/paper undertaking required by the Swiss Law and assurance for reciprocity.\"\n25. The Special Judge also directed certain documents to be sent along with this letter of rogatory. Further, the learned Judge has put up a note reading thus:\n\"Needless to mention that no observation made in this order shall tantamount to expression of opinion at any subsequent stage of enquiry or trial.\"\n26. It appears that the letter rogatory was sent back by the order of the Cantonal Court of Geneva for compliance of certain procedural formalities in that said order. It was at this relevant time that Shri Harinder Singh Chowdhary, an Advocate claiming to be the General Secretary of an Organisation named as Rashtriya Jan Parishad which according to him, is devoted to uphold the \"Rule of Law, fight against injustice in any field and abide by the Constitution and respect ideals and institutions\" filed Criminal Miscellaneous Case No. 12 of 1990 before the Special Court under Art. 51 -A of the Constitution of India seeking the following prayers:\n\"In the premises your petitioners humbly request that in order to maintain the dignity, prestige and the fair name of the country and the ideals enshrined in the Constitution no rogatory letter be issued on the formal request of the CBI unless the allegations against named persons are established to the satisfaction of this Hon''ble Court:\nIt is further requested that no request for rogatory or freezing bank account be made to Swiss Government unless the concerned persons are noticed and heard on the subject:\nIt is further requested that the petitioner may be permitted to join during inquiry before this Hon''ble Court in the capacity of public interest litigant:\nIt is further requested that inquiry under Section 340, Cr.P.C. be held to determine the alleged offence committed by various persons and till then proceedings of rogatory be. stopped.\"\n27. The Special Judge, Shri V. S. Aggarwal dismissed that petition by his order dated 18th August 1990 observing thus:\n\"It goes without saying that Letter Rogatory had been issued by Shri R.C. Jain, then Special Judge, Delhi on recording his satisfaction that it should be issued. The petitioner has appended along with the application the copy of the order passed by the Cantonal Court, Geneva. It is accompanied by its English translation. It clearly recites that application for judicial assistance should be sent back after completing the procedural formalities mentioned in the order. It cannot, therefore, be said that the letter of request had been rejected. It further does not call for any fresh reconsideration in this regard pertaining to the order passed by my learned predecessor.\"\n28. Coming to the question of locus standi of Shri Harinder Singh Chowdhary to file this petition requesting the prayers mentioned ibid, the learned Judge held thus:\n\"Examining the present case on the touchstone of the above mentioned cases, it is clear that though petitioner is a member of the noble profession, but while the matter is still at investigating stage, he cannot be permitted to intervene and the doors of the Court will not be ajar for him. He has no direct interest in such investigation nor suffers any special loss. Therefore, at the threshold, one can safely conclude that he has no locus standi to claim reliefs mentioned above.\"\n29. Consequent upon the above findings, the Special Judge dismissed the petition stating, \"This request of the learned counsel cannot be accepted.\" Thereafter, the Special Judge issued (1) Note of Compliance, and (2) Amended letter rogatory on August 22, 1990.\n30. On being aggrieved by the order of the Special Judge dated August 18, 1990, Shri Harinder Singh Chowdhary filed a criminal revision before the High Court of Delhi under Sections 397/482 of the Code of Criminal Procedure raising multiple questions of law challenging the legality and validity of not only the impugned order but also the very registration of the FIR and the investigation carried thereon by the CBI. The reliefs sought for in the criminal revision are as follows:\n\"(a) to quash the entire FIR No. RC 1(A)/90/ACU-IV dated January 22, 1990 and criminal proceedings covered by the same.\n(b) or remand the case to the Special Judge permitting the petitioner to argue his case before the lower Court and also direct the Court below to decide the petition on merits.\n(c) direct the Court that no request for rogatory letters be made to Swiss Government, till the petitioner is heard on his application.\n(d) the petitioner may be permitted to join during the inquiry to determine the question of dual criminality before the learned Special Judge in the capacity of public interest litigant, and also direct the learned Special Judge to decide the question of dual criminality before issuing the letter rogatory.\n(e) direct the learned Special Judge not to issue any rogatory letter on the formal request of the CBI unless the allegations against named persons is established to the satisfaction of the Special Judge by cogent evidence.\"\n31. This revision petition has been registered as Criminal Miscellaneous (Main) No. 1821 of 1990 on the file of the High Court of Delhi. During the hearing of this case, several applications seeking impleadment/ intervention were filed by various political parties and others of whom one was by Mr. Shanti Bhushan, an Advocate of this Bar and another by Mr. N. Ram and so on.\n32. The above criminal case (Criminal Miscellaneous (Main) Case No. 1821 of 1990) was listed before Justice M.K. Chawla, the then Judge of the High Court of Delhi. Several applications were taken before him by the impending interveners seeking several prayers such as permitting them to implead themselves in the revision proceedings and affording them adequate opportunities to make their submissions before the Court opposing the revision petition. As the prayers of the interveners were not acceded to, the Janata Dal etc. filed a special leave petition (criminal) No. 2320 of 1990 before this Court which passed an order on 10th December 1990, the relevant portion of which is as follows:\n\"We are of the view that the learned Judge should dispose of these applications by a judicial order before the matter is reserved for judgment and in case the applications are not accepted, judgment should not be delivered for at least 2 days after such an order on these writ petitions is made to enable them to move this Court.\"\n33. In compliance of the above direction of this Court, Mr. Justice Chawla heard Mr. Ram Jethmalani, Sr. Counsel who appeared on behalf of Janata Dal and Mr. Prashant Bhushan. It appears Mr. Jethmalani was constrained to make a request to Mr. Justice Chawla to recuse himself from the case, which request, of course, was rejected by the learned Judge. Thereafter, a petition for recusation was filed which was also dismissed. Mr. Justice Chawla after hearing the learned counsel for Mr. H.S. Chowdhary as well as the interveners, passed his final impugned order on 19th December 1990, dismissing the revision petition, the relevant portion of the said order reads thus:\n\"In my opinion, the case of the petitioner does not fall within the ambit and scope of the law laid by the Supreme Court in Bandhua Mukti Morcha v. Union of India, 1986 Indlaw SC 574. So, I hold that the petitioner has no locus standi to file the present revision petition and is thus not, maintainable on his behalf. The same is hereby dismissed.\nAs a consequence of the dismissal of the present petition, holding that the petitioner has no locus standi, the applicants have no right to be impleaded and their impleadment/ intervention applications are also rejected.\nThis is not the end of the matter. There is yet another process by which the Court can take judicial notice of any illegality being committed by any Court, with a view to prevent the injury being caused to the known or unknown aggrieved party.\"\n34. The learned Judge of the High Court Mr. Justice M.K. Chawla after referring to Sections 119, 397, 401 and 482 of the Code of Criminal Procedure concluded thus:\n\"In the light of the settled legal proposition, I have carefully examined the record placed before me. Prima facie, I am of the opinion that the following illegalities have been committed by the trial Court:\n1) That the FIR filed by the CBI in this case on the face of it does not disclose any offence. It is in violation of the provisions of Section 154, inasmuch as no investigation can be carried out for an offence alleged to have been committed outside India, and the Court of the Special Judge should not have taken cognizance of the same.\n2) That the C.B.I. should have exhausted their remedies before the J.P.C. before launching proceedings in the Court of the Special Judge inasmuch as the same investigating agency cannot be allowed to override the findings of the JPC, and this aspect has not been taken into consideration by the trial Court.\n3) The Court of the, Special Judge who issued letter rogatory had no jurisdiction to entertain such a request or to pass any order on it.\n4) The so-called memo of understanding relied upon by the trial Court was contrary to the Municipal law of the land and is violative of Arts. 21 and 300-A of the Constitution of India.\n5) That-the CBI is not a legally constituted force which can be entrusted with the investigation; and\n6) That the investigation on the face of it is biased and influenced by outside agencies.\nSo, I suo motu take cognizance while exercising my powers u/ss. 397 and 401 read with S. 482 of the Code, and direct the office to register the case under the title, Court on its own motion v. State and CBI.\nConsequently, I call upon the CBI and the State to show cause as to why the proceedings initiated on the filing of FIR No. RCI(A)/ 90/ ACU-IV dated 22-1-90, pending in the Court of Shri V.S. Aggarwal, Special Judge, Delhi, be not quashed.\"\n35. Feeling aggrieved by the above order of Justice Chawla of Delhi High Court, all these criminal appeals and the Writ Petition have been filed before this Court. This Court on 20th December 1990 in Criminal Appeal No. 304 of 1991 (arising out of SLP Criminal No. 2476 of 1990 filed by the Janata. Dal) passed the following order granting interim stay:.\n\"In the meantime, the reasons leading to registration of the suo motu proceedings would not be operative. There shall be interim stay of proceedings including hearing before the High Court.\"\n36. We have given a gist of all those appeals as well as the writ petition in our Order dated 27th August 1991 1991 Indlaw SC 231. Therefore, we feel it not necessary to reiterate the same.\n37. After carefully considering all aspects of the case and examining the rival contentions of the parties we have recorded our conclusions in the earlier order as follows:\n\"1. Mr. H.S. Chowdhary has no locus standi (a) to file the petition u/art. 51 -A as a public interest litigant praying that no letter rogatory/reguest be issued at the request of the CBI and he be permitted to join the inquiry before the Special Court which on February 5, 1990 directed issuance of letter rogatory/ request to the Competent Judicial Authorities of the Confederation of Switzerland; (b) to invoke the revisional jurisdiction of the High Court u/s. 397 read with S. 401 of the Code of Criminal Procedure challenging the correctness, legality or propriety of the order dated August 18, 1990 of the Special Judge; and (c) to invoke the extraordinary jurisdiction of the High Court under S. 482 of the Code of Criminal Procedure for quashing the first information report dated January 22, 1990 and all other proceedings arising therefrom on the plea of preventing the abuse of the process of the Court.\n2. In our considered opinion, the initiation of the present proceedings by Mr. H. S. Chowdhary under Art. 51-A of the Constitution of India cannot come within the true meaning and scope of public interest litigation.\n3. Consequent upon the above conclusions (1) and (2), the appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) who are before this Court equally have no right of seeking their impleadment/ intervention. For the same reasons, Dr. P. Nalla Thampy Thera also has no right to file the Writ Petition (Criminal) No. 114 of 1991 as public interest litigant.\n4. Having regard to the facts and circumstances of the case, the suo motu action of Mr. Justice M.K. Chawla in taking cognizance in exercise of the powers u/ss. 397 and 401 read with S. 482 of the Code based on the convoluted and strained reasoning and directing the office of the High Court of Delhi to register a case under the title Court on its motion v. State and CBI 2004 Indlaw DEL 741 cannot be sustained.\n38. Consequent upon the above conclusion No. (4), we hold that the directions of Mr. Justice M.K. Chawla calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the first information report dated January 22, 1990 be not quashed, cannot be sustained.\n39. In the result, we agree with the first part of the order dated December 19,1990 of Mr. Justice M. K. Chawla holding that parties have no locus standi. We, however, set aside the second part of the impugned order whereby he has taken suo motu cognizance and issued show cause notice to the State and CBI and accordingly the show cause notice issued by him is quashed.\n40. In view of the above conclusions, all the proceedings initiated in pursuance of the first information report dated January 22, 1990 relating to Crime No. RC/(A)/90/ACU-IV on the file of the Special Judge, Delhi including the issuance of the letter rogatory/ request as they stand now, remain unaffected and they can be proceeded with in accordance with law.\nIn Summation\nCriminal Appeals Nos. 304, 305, 306, 307, 308 and 309 of 1991 are dismissed, Criminal Appeal No. 310 of 1991 filed by the Union of India against the order dated September 5, 1990 of the High Court is dismissed in view of the fact that the said order does not survive for consideration on the passing of the final order dated December 19, 1990. The Writ Petition No. 114 of 1991 is also dismissed.\nCriminal Appeal No. 311 of 1991 filed by Union of India and CBI is allowed for the reasons stated above.\"\n41. The sum and substance of the order of Mr. Justice Chawla in this regard, is that Harinder Singh Chowdhary has no locus standi to file the revision petition and resultantly his revision petition was not maintainable and consequently all the applicants (interveners) have no right to be impleaded and that the applications for impleadment/ intervention were liable to be rejected.\n42. Mr. Anand Dev Giri, the learned Solicitor General (as he then was) and thereafter Mr. Altaf Ahmad, the present Additional Solicitor General appearing on behalf of the Union of India as well on behalf of CBI and Mr. Ram Jethmalani and Mr. Shanti Bhushan, learned senior counsel assisted by Mr. Prashant Bhushan appearing in Criminal Appeals Nos. 304, 305 and 307 of 1991 and Mr. K.G. Bhagat, the learned senior counsel appearing in Criminal Appeals Nos 306 and 311 of 1991 on behalf of Mr. H.S. Chowdhary besides a battery of lawyers representing their respective parties advanced respective arguments for a considerable length of time raising multiple questions of law with reference to the various legal aspects. Though, more often than not, there were some heated arguments -occasionally tinged with acrimony and tumult - all the learned counsel made their erudite submissions and scholarly debate in forensic eloquence exhibiting their profound knowledge of law -particularly in the criminal field.\n43. The resultant propositions deducible from the rhetorical submissions and the counter-submissions expostulated with reference to various provisions of the Constitution, Code of Criminal Procedure (hereinafter referred to as ''the Code) and other cognate statutes can be summarised as follows:\n1. The unrestricted and inherent powers of Subordinate Courts - both Civil and Criminal - apart from their ancillary and incidental powers, in the absence of any provision to the contrary could and should be exercised ex debito justitiae for ends of justice, that is for taking steps as may be necessary to enable the Courts in discharge of the judicial functions to issue directions or pass appropriate orders without causing prejudice to either of the parties for administering substantial Justice whenever legitimate occasion for doing so arises.\n2. The discretionary power of the Special Judge in issuing Letter Rogatory on 5-2-1990 even before the introduction of Section 166-A of the Code of Criminal Procedure (hereinafter referred to as \"the Code\") in exercise of his uninhibited inherent powers is supported by the Memorandum of Understanding (MOU) creating a contractual arrangement between the two countries, namely, India and Switzerland which arrangement amounts to bilateral international treaty having a binding force between the two contracting parties and also in substantial compliance of S. 285 of the Code.\n3. Criminal Courts are not forbidden in participating in the course of investigation in the matter of collection of evidence; and in fact the Courts are invested with statutory power to take active role and aid the investigation in gathering evidence as contemplated under Sections 91, 93, 94, 105 (as amended by the Amending Act II of 1988), 284, 285 etc. of the Code as well as u/ss. 156(3), 157, 159, 167 (2), 190, 202, 164, 306 etc. of the Code.\n4. Neither an accused nor a public interest litigant has right to question the mode of collection of evidence of the investigating agency and interfere in the progress of the investigation.\n5. The re-submission (after complying certain procedural formalities) of the Letter Rogatory on 22nd February 1990, subsequent to the introduction of Section 166-A of the Code by an Ordinance promulgated on 19th February 1990 and replaced by an Act coming into force with retrospective effect from 19-2-1990 is supported by sanction of law.\n6. Whether the Memorandum of Understanding (MOU) is constitutionally invalid, being contrary to Arts. 73 and 77 and in conflict with and opposed to Arts. 21 and 300A of the Constitution?\n7. Whether Courts can take judicial notice of the MOU without its being gazetted and ratified in compliance with the Vienna Convention on the Law of Treaties, 1969?\n8. Whether the Central Bureau of Investigation (CBI) is a legally constituted body and empowered with powers of registering and investigating a cognizable offence?\n9. Whether the contents of the First Information in the present case constitute a cognizable offence warranting the registration of a case u/s. 154 of the Code\n10. What are the circumstances under which the Criminal Court can suo motu exercise its revisional jurisdiction?\n11. Is there any bar for the Courts to examine the report of the Joint Parliamentary Committee (JPC) constituted by the Parliament under the Rules of Procedure made u/art. 118 of the Constitution or for a successor Government to question its findings in the absence of any negation or modification or change of the findings of the Report?\n44. The learned counsel for the parties while advancing their arguments on the above propositions posed several ancillary questions of law. Mr. Bhagat made a special reference to The Geneva Convention Act of 1960, The Extra Convention Act of 1962, The International Monetary Fund and Banking Act of 1945, The Diplomatic Privileges Act of 1964 etc. in support of his contention that the present MOU cannot partake of the force of law and that it cannot be invoked. A host of decisions were cited at the Bar in support of the above propositions.\n45. It is not only appropriate but also has become necessary in this connection to point out that the grounds taken in the petition filed by Mr. H.S. Chowdhary before the Special Judge were only with reference to issue of Letter Rogatory and the authority of the CBI to register a case in the absence of any named public servant being brought as accused in the FIR and the power of CBI to investigate the case since the JPC had already rendered its findings on the subject-matter in issue. One other contention was that the registration of the case was on account of political rivalry entertained by the Janata Dal Government as against the outgoing Congress Government.\n46. The Special Judge disposed of the petition holding, \"Shri H.S. Chowdhary has no locus standi to claim the reliefs sought for in the petition.\" In the revision petition, Mr, H. S. Chowdhary took certain additional grounds stating that the First Information Report has not disclosed the commission of any cognizable offence and the CBI has gone wrong in registering the FIR in the absence of any additional evidence which were not available before the JPC and that the Letter Rogatory ought not have been issued without recording evidence. The High Court dismissed the revision petition as being not maintainable on the sole ground of locus standi and did not go to other questions of law raised by Mr. Chowdhary. Only for the first time before this Court, the parties are litigating on the above stated propositions of law which except for one or two have neither been raised before the Courts below nor agitated. Strictly speaking, as the present appeals are preferred challenging only the judgment of the High Court dated 19-12-90, this Court is called upon to examine the tenability of the reasons given by the High Court as regards the locus standi of Mr. H.S. Chowdhary and in addition, the invocation of the suo motu action of the High Court in exercise of its revisional jurisdiction. This Court while disposing of Criminal Appeal No.306/91 filed by Mr. H.S. Chowdhary challenging the first part of the order of the High Court dismissing his revision petition on the ground that he has no locus,standi, has confined its consideration only on that point.\nHowever, with regard to the various questions of law, we expressed our view, in our earlier Order as follows: 1991 Indlaw SC 231\n\"Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.\"\n47. We have also given the reasons for not dealing with the specific propositions raised by the respective counsel in our earlier Order observing thus 1991 Indlaw SC 231\n\"Therefore, under these circumstances one should not lose sight of the significant fact that in case this Court pronounces its final opinion or conclusions on the issues other than the general issues raised by the appellants as public interest litigants, without hearing the really affected person/persons, such opinion or conclusions may, in future, in case the investigation culminates in filing a final report become detrimental and prejudicial to the indicated accused persons who would be totally deprived of challenging such opinion or conclusions of this apex Court '' even if they happen to come in possession of some valuable material to canvass the correctness of such opinion or conclusions and consequently their vested legal right to defend their case in their own way would be completely nullified by the verdict now sought to be obtained by these public interest litigants.\"\n48. However, as we have expressed our view \"that the question as to whether laws are so petrified as to be unable to respond to the challenges made will be dealt with in detail in our main judgment, we have to examine the law as regards the scope and ambit of public interest litigation and the power of the High Court in taking suo motu cognizance in exercise of its powers u/ss. 397 and 401 read with S. 482 of the Code which are the general issues as indicated by us in our earlier Order.\n49. We hasten to add that we will not be justified to make disembodied pronouncements or any observation on seriously disputed questions of law and facts taking its cue from mere affidavits, that too not from the person aggrieved or affected and without the battle lines being properly drawn by the affected parties.\n50. We shall now briefly deal with the scope and object of ''public interest litigation'' (PIL), the horizon of which is widely extended and which at present constitutes a new chapter in justice delivery system acquiring a significant degree of importance in the, modern legal jurisprudence practiced by Courts in many parts of the world, based on the principle, \"Liberty and Justice for All\".\nPublic Interest Litigation - its origin and meaning\n51. The question, \"what ''PIL'' means and is?\" has been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition. Basically the meaning of the words ''Public Interest'' is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as \"the common well beingalso public welfare\".\n52. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), ''public interest'' is defined thus:\n\"PUBLIC INTEREST (1) A matter of public or general interest \"does not mean that which is interesting as gratifying curiosity or a love of information or -amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected\" .\n53. In Black''s Law Dictionary (Sixth Edition), ''public interest'' is defined as follows:\n\"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national government\"\n54. The expression ''litigation'' means a legal action including all proceedings therein, initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ''PIL'' means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. There is a host of decisions explaining the expression ''PIL'' in its wider connotation in the present day context in modern society, a few of which we will refer to in the appropriate part of this judgment.\n55. It would be quite appropriate in the case on hand to analyze both the basic features and the evolution and profound transformation of the developing and growing PIL in modern society. Suffice it to say that the challenges facing this meliorable litigation are examined in the light of their social, economic, political and ideological causes; and that the solutions to be adopted by the legal system to meet those challenges are explored, since there is still an ocean of unmet needs. These challenges are; (1) The expanded role of Courts in the modern ''social'' State and the new demands for judicial responsibility; (2) the rise and growth of varied systems of judicial review and the legitimacy of such development; (3) the emergence of the notion of ''access to justice'' as a judicial answer to egalitarian ideals and demands for effectiveness, and the development of PIL, and (4) the role of Courts in promoting the legal system in the arena of PIL. The relentless efforts taken by Courts in meeting all those challenges, in fact, strive for a optimality in which the interest of the least advantaged is given an overriding priority. During the last three decades, judicial activism has opened up new dimension for the judicial process and has given a new hope to the justice - starved millions.\nOn the question of legitimacy of the PIL and the significant importance of its various aspects in the context of the present day felt needs, stimulated by the emergence of a variety of new social movements and societal exigencies, this Court has laid down a long line of decisions, outlining the evolution of PIL, its vital issues and problems relating to the focus, choice of relief methods, the means and the administrative strategy for litigation and the demand for distributive justice for resolving the complicity of social problems and creating genuine initiatives so that this new activism may be more meaningful social justice. Thus the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records, especially in the arena of constitutional and legal treatment for ''the unrepresented and underrepresented''.\n56. The period of 1960s in United States of America was the important period of social embroilment during which not only manifold changes to many institutions took place; but also significant reforms of which public interest litigation was one were proposed and tried. The concept of PIL though had its origin in U.S.A. over the march of years it has passed through various changes and modifications in their common law based systems. It is not necessary to examine all those modifications and changes in the structure of the public law of that country and the manner in which the legal services have been redistributed in American society except saying that the strict requirement of legal interest has been diluted and attenuated in the country of its origin. Similarly, the common law based systems in other parts of the common wealth countries have also undergone various changes. Legal aid programmes in Australia and Canada have been restructured to serve divergent aspects of the public interest. Some of the countries have gone to the extent of broadening its scope even beyond litigation and including many varieties of negotiations and even nonlitigating approaches. Thus the definition of PIL emerged from historical context in which the commonality of the various forms of legal representation involving the basic and fundamental rights of a significant segment of the public demanding vindication of its rights has been recognised in various parts of the world.\n57. The emergence of the concept of PIL, in the Indian legal system has been succinctly explained by P.N. Bhagwati, J.  in one of his articles contributed under the caption ''Social Action Litigation: The Indian Experience'' thus:\n\"The judiciary has to play a vital and important role not only in preventing and remedying abuse and misuse of power but also in eliminating exploitation and injustice. For this purpose it is necessary to make procedural innovations in order to meet the challenges posed by this new role of an active and committed judiciary. The summit judiciary in India, keenly alive to its social responsibility and accountability to the people of the country, has liberated itself from the shackles of Western thought, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies for the purpose of bringing justice for socially and economically disadvantaged groups During the last four or five years however, judicial activism has opened up a new dimension for the judicial process and has given new hope to the justice starved millions of India.\"\n58. Indian law has historically been strongly identified - both in theory and practice - with a tradition which has been concerned with the rights and duties of individuals. Yet in recent years it has been. recognized that this tradition is inadequate to cope with a wide range of problems arising out of inequality of means, opportunities and entitlements in -society. This conflict has generated increasing discussion of PIL, and also the development of a whole new corpus of law for effective and purposeful implementation of PIL and institutions explicitly concerned with the manner and techniques by which the public interest is, and can be, safeguarded by the legal system.\n59. The seed of the concept of PIL were initially sown in India by Krishna Iyer, J. in 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai, 1976 Indlaw SC 194 he while disposing an industrial dispute in regard to the payment of bonus, has observed :\n\"Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where foul play is -absent, and fairness is not faulted, latitude is a grace of processual justice, Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the '' merits by suspect reliance on peripheral procedural short- comings. Even Art. 226, viewed on wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptu- al latitudinarianism permits taking liberties with individualisation of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.\"\n60. After the germination of the seeds of the concept of PIL in the soil of our judicial system, this rule of PIL was nourished, nurtured and developed by the Apex Court of this land by a series of outstanding decisions.\nIn Fertilizer Corporation Kamgar Union v. Union of India, 1980 Indlaw SC 243, the terminology \"public interest litigation\" was used. In that decision, Krishna Iyer, J. delivering his opinion for Bhagwati, J. (as the learned Chief Justice then was) and himself used the expression ''epistolary'' jurisdition. However, this rule on gaining momentum day by day, burgeoned more and more expanding its branches in the cosmos of '' PIL and took its root firmly in the Indian Judiciary and fully blossomed with fragrant smell in S. P. Gupta v. Union of India, 1981 Indlaw SC 599.\n61. Though it is imperative to lay down clear guidelines and propositions; and outline the correct parameters for entertaining a Public Interest Litigation - particularly on the issue of locus standi yet no hard and fast rules have yet been formulated -and no comprehensive guidelines have been evolved. There is also one view that such adumberation is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances.\n62. Be that as it is may, it needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.\n63. The traditional syntax of law in regard to locus standi for a specific judicial redress, sought by an individual person or detriminate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to actionability within the categories of law. In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere or their legally constituted representatives who are thus obviously most competent to commence the litigation.\n64. In contrast, the strict rule of locus is standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redrcssal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in; motion like actio popularis of Roman Law whereby any citizen could bring such an action in respect of a public delict.\n65. It will be befitting to recall the observation of this Court in People''s Union for Democratic Rights v. Union of India,1982 Indlaw SC 88 which reads thus :\n\"But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo Saxon system of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionised the whole concept of access to justice in a way ''not known before to the western system of jurisprudenceit is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may /become easily available to the lowly and the lost\".\n66. R. S. Pathak, J. while agreeing with the directions proposed by Bhagwati, J. in Bandhua Mukti Morcha v. Union of India, 1983 Indlaw SC 192, expressed his view stating, \"In public interest litigation, the role held by Court is more assertive than in traditional actions.\"\n67. M. N. Venkatachaliah, J. speaking for the Bench in Sheela Barse V. Union of India, 1988 Indlaw SC 747 has brought out the distinction between private litigation and public interest litigation in the following words :\n\"In a public interest litigation, unlike traditional dispute resolution mechanism, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party structure is merely bi-polar and the controversy pertains to the, determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the proceedings, cut across and transcend these traditional forms and inhibitions. The compulsion for the judicial innovation of the technique of a public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State. The dispute is not comparable to one between private parties with the result there is no recognition of the status of a dominus litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The \"rights\" of those who bring the action on behalf of the others must necessarily be subordinate to the \"interests\" of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of government action in relation to the constitutional or statutory rights of segments of society and in certain circumstances the conduct of government policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, ad hoc, according as the exigencies of the emerging situations. The proceedings do not partake of predetermined private law litigation models but are exo-genously determined by variations of the theme.\"\n68. Though we have, in our country, recognised a departure from the strict rule of locus standi as applicable to a person in private action and broadened and liberalised the rule of standing and thereby permitted a member of the public, having no personal.gain or oblique motive to approach the Court for enforcement of the Constitutional or legal rights of socially or economically disadvantaged persons who on account of their poverty or total ignorance of their fundamental rights are unable to enter the portals of the Courts for judicial redress, yet no precise and inflexible working definition has been evolved in respect of locus standi of an individual seeking judicial remedy and various activities in the field of PIL. Probably, some reservation and diversity of approach to the philosophy of PIL among some of the Judges of this Court as reflected from the various decisions of this Court, is one of the reasons for this Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. True, in defining the rule of locus standi no ''rigid litmus test'' can be applied since the broad contours of PIL are still developing apace seemingly with divergent views on several aspects of the concept of this newly developed law and discovered Jurisdiction leading to a rapid transformation of judicial activism with a far-reaching change both in the nature and form of the judicial, process.\n69. In this context, it would be quite relevant to recite the observations made by Bhagwati, J. in S. P. Gupta v. Union of India, 1981 Indlaw SC 599 reading thus:\n\"Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and -devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public-spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal rights have been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief\"\n70. As briefly pointed out in S. P. Gupta''s case, 1981 Indlaw SC 599 there are certain exceptions carved out of the strict rule of standing, to be made applicable to PIL cases. By way of illustration, it may be stated that under Order II of the Code of Civil Procedure, any person acting as the next friend of a minor may bring an action in his name for judicial redress. So also any other person other than the person under detention may file an application for issue of a writ of habeas corpus challenging the legality of the detention of the detenu. Similarly, the Judicial Committee of the Privy Council approved the exception to the strict rule of standing in Durayappah v. Fernando, .\n71. In the United Kingdom, there have been remarkable developments on account of the dynamic activism of Lord Denning.\n72. In Attorney General (on the relation of Mc Whirter) v. Independent Broadcasting Authority,, Lord Denning, MR while dealing with the case of a relator action observed as follows:\n\"In the light of all this I am of the opinion that, in the last resort, if the Attorney General refuses leave in a proper case, or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public, who has a sufficient interest, can himself apply to the Court itself. He can apply for a declaration and, in a proper case, for an injunction, joining the Attorney General if need be, as defendant. In these days when Government departments and public authorities have such great powers and influence, this is a most important safeguard for the ordinary citizens of this country; so that they can see that those great powers and influence are exercised in accordance with law. I would not restrict the circumstances in which an individual may be held to have a sufficient interestI have said so much because I regard it as a matter of high constitutional principle that if there is good ground for supposing that a Government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty''s subjects, then in the last resort any one of those offended or injured can draw it to the attention of the Courts of law and seek to have the law enforced. But this, I would emphasise, is only in the last resort when there is no other remedy reasonably available to secure that the law is obeyed.\"\n73. In R. v. Greater London Council, , one Albert Raymond Blackburn and Tessa Marion Blackburn applied for an order of prohibition to issue against the Greater London Council (the ''GLC'') to prevent them from exercising their censorship powers over the public exhibition of cinematograph films in accordance with a test of obscenity which was bad in law. The Divisional Court of Queen''s Bench Division refused the order and dismissed the application. Challenging that order Raymond Blackburn came before the Court of Appeal. The appeal was opposed on the ground of locus standi contending that Blackburn had no sufficient interest to bring those proceedings against the GLC. Lord Denning, MR rejected that contention relating to locus standi concluding thus:\n\"In my opinion, therefore, Mr. Blackburn has made out his case. He has shown that the GLC have been exercising their censorship powers in a manner which is unlawful; because they have been applying a test which is bad in law. If they continue with their present wrong test and in consequence given their consent to films which are grossly indecent, they may be said to be aiding and abetting a criminal offence. In these circumstances, this Court can and should issue an order of prohibition to stop them.\"\n74. Subsequently in Gouriet v. Union of Post Office Workers, , the House of Lords while dealing with the case of a relator action in which the appellant, John Prendergast Gouriet after having failed to obtain the consent of the. Attorney General to bring an action at the relation of the plaintiff against the Union of Post Office Workers (''the UPW) for an injunction restraining the UPW from soliciting or endeavouring to procure any person wilfully to detain or delay any postal packet in the course of transmission between England and Wales and the Republic of South Africa, issued a writ in his,own name against the UPW seeking the same relief, held that it was a fundamental principle of English law that public rights could only be asserted in a civil action by the Attorney General as an Officer of the Crown representing the public and that a private person was not entitled to bring an action in his own name for the purpose of preventing public wrongs and, therefore, the Court had no jurisdiction to grant relief, whether interlocutory or final or whether by way of an injunction or declaration, in such an action.\n75. This decision evoked serious debate and was subjected to severe criticism by the jurists in England and elsewhere.\n76. So far as the newly invented concept of PIL in Indian legal system is concerned, we can be proud of saying that there is a tremendous development and dynamic progress in the cosmos of PIL in spite of multiple criticism levelled against the various aspects of PIL. The melioration of the philosophy of PIL is demonstrably radiated by the long line of decisions, a few of which we will presently refer to.\n77. This Court in Sunil Batra (II) v. Delhi Administration, 1979 Indlaw SC 329 has accepted a letter written to the Supreme Court by one Sunil Batra, a prisoner from Tihar Jail, Delhi complaining that the Jail Warder had subjected another prisoner serving life term in the same jail to inhuman torture. This Court treated that latter as a writ petition and by an elaborate judgment allowed the petition and issued certain directions inclusive of one for taking suitable action against the erring official to the Ministry of Home Affairs and all State Governments on the ground that Prison Justice has pervasive relevance, thereby enlarging the scope of habeas corpus by making it available to a prisoner not only for seeking his liberty but also for the enforcement of a constitutional right to which he was entitled to even while in confinement.\n78. This Court in Dr. Upendra Baxi (I) v. State of U. P., 1981 Indlaw SC 331, entertained a letter sent by the two Professors of Delhi University seeking enforcement of the Constitutional right of the inmates in a Protective Home at Agra who were living in inhuman and degrading conditions in blatant violation of Art. 21 of the Constitution. The said letter was treated as a writ petition and the two Professors were permitted to maintain an action for an appropriate writ.\n79. Again in Miss Veena Sethi v. State of Bihar, 1982 Indlaw SC 57 this Court treated a letter addressed* to a Judge of this Court by the Free Legal Aid Committee at Hazaribagh, Bihar as a writ petition.\n80. In People''s Union for Democratic Rights v. Union of India, 1982 Indlaw SC 88 a letter addressed by the, petitioner Organisation seeking a direction against the respondents for ensuring observance of the provision of various labour laws in relation to workmen employed in the construction work of projects connected with the Asian Games, was entertained by relaxing the traditional rule of standing.\n81. Treating a letter sent by an organisation demanding the release of bonded labourers as a Writ Petition this Court in Bandhua Mukti Morcha v. Union of India, 1983 Indlaw SC 192 issued several directions to the Central Government and State of Haryana not only for the release of the bonded labourers but also for their future improvement and betterment. Though R.S. Pathak  and A. N. Sen, J. have delivered separate judgments, in general they agreed with the directions issued by Bhagwati, J. in his separate leading judgment.\n82. A number of Writ Petitions were filed by two journalists along with the Peoples Union for Civil Liberties Committee for the Protection of Democratic Rights and two other pavement dwellers under Art. 32 of the Constitution of India challenging the correctness and legality of the decision of the Bombay Municipal Corporation to demolish the dwellings of the slum hutments on several grounds, one of which being violation of Art. 21 of the Constitution. These Writ Petitions were heard by a Constitution Bench of this Court in Olga Tellis v. Bombay Municipal Corporation, 1985 Indlaw SC 525. The respondent challenged the very maintainability of the Writ Petitions. Chandrachud, C.J. speaking for the Constitution Bench rejecting the challenge of the respondent therein entertained those petitions and held that the right to life conferred by Art. 21 is of wide sweep and far reaching and one of the facets of such right is the right to livelihood.\n83. In Ramsharan Autyanuprasi v. Union of India, 1988 Indlaw SC 916 a writ petition was registered under Art. 32 of the Constitution on the basis of a petition addressed by the writ petitioners to one of the learned Judge''s of this Court as a Public Interest Litigation but Mukharji, J. speaking for the Bench dismissed the Writ Petition holding:\n\"the allegations are too vague, too indirect and too tenuous to threaten the quality of life of people at large or any section of the people. The acts complained of resulting in the threats alleged are too remote and, in our opinion, to be amenable u/art. 32 of the Constitution. The petitioners further assert that there has been violation of Art. 51-A(f) of the Constitution as a duty has been cast on every citizen to value and preserve the rich heritage of our composite culture. Indeed, it is our duty but the enforcement of that duty by means of a writ under Art. 32 of the Constitution\"\n84. Krishna Iyer, J. speaking for the Bench in Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association v. Union of India, 1980 Indlaw SC 277, overruling the plea that a Writ Petition filed by an unrecognised association cannot be sustained observed that \"we have no hesitation in holding that the narrow concept of ''cause of action'' and ''person aggrieved'' and individual litigation is becoming obsolescent in some jurisdiction.\"\n85. In Fertilizer Corporation Union v. Union of India, 1980 Indlaw SC 243 , Chandrachud, C.J. speaking for himself and on behalf of Fazal Ali and Kaushal, JJ. observed that the violation of a fundamental right is the sine qua non of the exercise of the right conferred by Art. 32 and dismissed the writ petition as not maintainable having regard to the facts of the case. Krishna Iyer, J. speaking for himself and Bhagwati, J. in a separate judgment though concurred with the conclusion of the majority held that if a person belonging to an organisation which has special interest in the subject matter has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered and pointed out:\n\"Public interest litigation is part of the process of participate justice and ''standing'' in civil litigation of that pattern must have liberal reception at the judicial doorsteps.\"\nHe further added:\n\"We have no doubt that in a competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law Court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets\"\n86. In National Textile Workers'' Union v. P. R. Ramkrishnan,  1982 Indlaw SC 185 Bhagwati, J. speaking for the majority expressed his view that the workers of a company are entitled to appear at the hearing of the winding up petition whether to support or to oppose it and they have a locus standi to appear and be heard both before the petition is admitted and an order for advertisement is made as also after the admission and advertisement of the petition until an order is made for winding up the company. A. N. Sen, J. dissented from the above view.\n87. In passing, it may be stated that in A. R. Antulay V. Ramdas Sriniwas Nayak, 1984 Indlaw SC 337 this Court observed that \"Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence. provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision.\".\n88. Reference also may be made to:\n(1) D. S. Nakara v. Union of India, 1982 Indlaw SC 158 (2) P. Nalla Thampy Thera v. Union of India,  1983 Indlaw SC 157 (3) Rural Litigation and Entitlement Kendra, Dehradun v. State of U. P. 1985 Indlaw SC 296 and (4) Kurukshetra University v. State of Haryana, 1977 Indlaw SC 337\n89. From the above pronouncements, it emerges that this summit Court has widely enlarged the scope of PIL by relaxing and liberalising the rule of standing by treating letters or petitions sent by any person or association complaining violation of any fundamental rights and also entertaining Writ petitions filed under Art. 32 of the Constitution by public spirited and policy oriented activist persons or journalists or of any organisation rejecting serious challenges made with regard to the maintainability of such petitions rendered many virtuosic pronouncements and issued manifold directions to the Central and the State Governments, all local and other authorities within the territory of India or under the control of the Government of India for the betterment of the public at large in many fields in conformity with constitutional prescriptions of what constitutes the good life in a socially just democracy. The newly invented proposition of law laid down by many learned Judges of this Court in the arena of PIL irrefutably and manifestly establish that our dynamic activism in the field of PIL is by no means less than those of other activist judicial systems in other part of the world.\n90. It may not be out of place to mention here that there may be numerous circumstances justifying the entertaining of Public Interest Litigation but we cannot obviously enumerate an exhaustive list of all such situations.\n91. Bhagwati, J. in S. P. Gupta''s case, 1981 Indlaw SC 599 (popularly known as Judges'' Appointment and Transfer case) which was heard by a Bench of seven learned Judges, has clearly defined ''what PIL means and is'' and expressed his views in meticulous detail in the following terms:\n\"It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member, of the public can maintain an application for an appropriate direction, order or writ in the High Court u/art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief u/art. 32 and they require various formalities to be gone through by a person seeking to approach this Court.\nBut it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of public-minded individual as a writ petition and act upon itBut we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be in the form of a letter addressed to the Court or petition even in the form of a regular writ filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal-aid organisation which can take care of such cases.\"\n92. After having elaborately explained the concept of PIL, the learned Judge held that:\n\"any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the Constitutional objectives.\"\n93. However, the learned Judge has sounded a note of caution to the Courts to be observed while entertaining a Public Interest Litigation as follows:\n\"But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.\"\n94. The other learned Judges -namely, Gupta, Tulzapurkar, Fazal Ali, Desai and Pathak, JJ. - who were parties to the above judgment have all agreed in general with the views expressed by Bhagwati, J. on the question of locus standi. However, Desai, J. added a note saying \"that the contention about locus standi is now of academic interest and I do not propose to deal with it. However, I am in full agreement with learned Bhagwati, J.\"\n95. However, Venkataramiah, J. in his separate judgment with regard to the question of locus standi of lawyers in filing petitions in respect of matters concerning Judges, Courts and administration of justice has registered his opinion thus:\n\"It has, however, to be made clear that it cannot be said that lawyers only because they have a right to practise in a Court have ''locus standi'' to file petitions in respect of every matter concerning Judges, Courts and administration of justice. There are many such matters in which they have no ''locus standi'' to ask for relief. By way of illustration, lawyers cannot question the establishment of a new Court on the ground that their professional prospects would be affected thereby. Even in these cases on the question of non-appointment of Mr. S. N. Kumar and on the question of transfer of Mr. K.B.N. Singh, the lawyer petitioners may have no voice. But for the active participation of these two persons, the petitions regarding reliefs concerning them individually would have probably become liable to be dismissed on the ground that the lawyers have no ''locus standi'' to make these prayers.\nBut, since as already stated, Mr. S. N. Kumar and Mr. K. B. N. Singh have requested the Court to consider and if thought fit to grant relief in their favour and the learned Attorney-General has fairly stated that he would not raise the objection that the petitioners have no locus standi in view of the importance of the questions debated in these cases, we hold that the petitions cannot be rejected merely on the ground that the petitioners who are lawyers have no locus standi to file these petitions. Before leaving this topic, it has to be observed that other question of locus standi in the field of administrative law is still in a fluid state and it is not possible to lay down in any one case the principles which can govern all situations.\"\n96. On an assiduous analysis and scrupulous study of the major landmark decision of Gupta''s case,  1981 Indlaw SC 599, which serves as a charter of PIL, we unreservedly hold that the said decision describes the broad definition of the expression ''PIL'', explores the conceptual problems, outlines the evolution of legal strategies, discusses the institutionalisation of the PIL movement and concludes with innovative methods and devices for increasing citizens'' participation to promote reforms of the legal system in order to ensure real access to the justice delivery system, and to encourage the continuation and expansion of public interest representation. Above all, it has opened wide the doors of the Court to millions of the poor, ignorant and socially or economically disadvantaged to articulate their grievances and seek justice which otherwise would have been denied to them.\n97. In short, the decision in Gupta''s case is a golden master key which has provided access to the Courts for the poor and downtrodden.\nVexatious and frivolous litigations.\n98. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.\n99. In Gupta''s case,  1981 Indlaw SC 599, Bhagwati, J. emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution:\n\"But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective\"\n100. In State of H. P. v. Parent of a Student, 1985 Indlaw SC 286 it has been said that public interest litigation is a weapon which has to be used with great care and circumspection.\n101. Khalid, J. in his separate supplementing judgment in Sachidanand Pandey v. State of West Bengal, 1987 Indlaw SC 28720 said:\n\"Today public spirited litigants rush to Courts to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public. They must be above suspicion Public interest litigation has now come to stay. But one is led to think that it poses a threat to Courts, and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functionsI will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to- have some self-imposed restraint on public interest litigants.\"\n102. Sabyasachi Mukharji, J. (as he then was) speaking for the Bench in Ramsharan Autyanuprasi v. Union of India, 1989 Indlaw SC 466 was in full agreement with the view expressed by Khalid, J. in Sachidanand Pandey''s case,  1987 Indlaw SC 28720, and added that ''public interest litigation'' is an instrument of the administration of justice to be used properly in proper cases.\n103. Judgment by Pathak, J.  in Bandhua Mukti Morcha v. Union of India,  1983 Indlaw SC 192.\n104. Sarkaria, J. in Jasbhai Desai v. Roshan Kumar,  1975 Indlaw SC 372 expressed his view that the application of the busybody should be rejected at the threshold in the following terms:\n\"It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) ''person aggrieved''; (ii),stranger''; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.\"\n105. Krishna Iyer, J. in Fertilizer Corporation v. Union of India,  1980 Indlaw SC 243 in stronger term stated:\n\"If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the Court will not be ajar for him.\"\n106. In Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., 1990 Indlaw SC 199 Sabyasachi Mukharji, C.J. observed :\n\"While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under Art. 32 should not be misused or permitted to be misused creating a bottleneck in the Superior Court preventing other genuine violation of fundamental rights being considered by the Court.\"\n107. In a recent decision of this Court in Union Carbide Corporation v. Union of India, 1991 Indlaw SC 912 Ranganath Mishra, C.J. in his separate judgment while concurring with the conclusions of the majority judgment has said thus:\n\"I am prepared to assume, nay, concede, that public activists should also be permitted to espouse the cause of the poor citizens but there must be a limit set to such activity and nothing perhaps should be done which would affect the dignity of the Court and bring down the serviceability of the institution to the people at large. Those who are acquainted with jurisprudence and enjoy social privilege as men educated in law owe an obligation to the community of educating it properly and allowing the judicial process to continue unsoiled.\"\n108. K. N. Singh, J. speaking for the Bench in Subhash Kumar v. State of Bihar,  1991 Indlaw SC 913 has expressed his opinion in the following words :\n\"Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Art. 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Art. 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage. such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants, by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation.\"\n109. It is thus clear that only a person -acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold.\n110. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we are second to none in fostering and developing the newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, person suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from the detention orders etc. - are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation, and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Court never moves which piquent situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.\n111. In the words of Bhagwati, J. \"the Courts must be careful in entertaining public interest litigations\" or in the words of Sarkaria, J. \"the applications of the busybodies should be rejected at the threshold itself\" and as Krishna Iyer, J. has pointed out, \"the doors of the Courts should not be ajar for such vexatious litigants.\"\n112. Further, we would like to make it clear that it should not be misunderstood that by the expression of our above view, there is any question of retreating or recoiling from the earlier views expressed by this Court about the philosophy of public interest litigation in many outstanding judgments which we have already referred to; on the other hand we look back to the vantage point from which we started our journey and proceed on our onward journey in the field of PIL.\n113. Keeping in mind the recent development of the doctrine of PIL and the judicial exposition of the rule governing locus standi, we shall now revert to the facts of the instant case and carefully examine the questions; (1) Whether H. S. Chowdhary has locus standi to file this litigation, and (2) Whether this litigation will fall within the ambit and scope of PIL seeking declaratory as well as injunctive reliefs. Before the Special Judge, he filed the petition under Art. 51A of the Constitution proclaiming that he being the General secretary of an Organisation, calling itself as Rashtriya Jan Parishad which is devoted to uphold the Rule of Law and fight against injustice, has got a fundamental duty to inform the Court \"regarding the activation of the complainant (CBI) in the aforesaid case which has tarnished the image, credibility of the nation and has also lowered the national prestige\". According to him, the prosecution has been malevolently launched with rancour, stimulated by political vendetta after Shri V. P. Singh became the Prime Minister, who with his colleagues have attributed mendacious charges publicly, that there was payment of kickbacks and receipt of bribe from Bofors.\n114. The sum and substance of the inculpation as gathered from the averments made in the petition and the submissions made by Mr. Bhagat on behalf of H.S. Chowdhary, in short, are that those who were at the helm of affairs in the then Government during January, 1990 in their attempt to lock horns with those who were in power of the then outgoing Government with mala fide intention of vindicating their electoral rivalry have been instrumental in registration of the FIR containing the unveracious and vile charges by using every possible trick and ruse at their command and disposal and making vociferous verbal attack with their lung power to, settle their personal scores with their political opponents''. The further attack against the author of the FIR and the investigating agency is that the CBI under \"pressure of its political masters in conspiracy with them have been giving recklessly the names of various leaders of this country to tarnish their image without any basis\"; and the on-set of the investigation is biased, unfair and unethical and the procedure adopted is in utter violation of the provisions of the Constitution and the procedural law.\n115. My. Jethmalani expostulating the objectives of PIL urged with vehemence and persistence that H. S. Chowdhary does not have any locus standi to initiate this litigation and as such his petition is liable to be rejected even at the threshold. According to him, the true Public Interest Litigation is one in which a selfless citizen having no personal motive of any kind except either compassion for the weak and disabled or deep concern for stopping serious public injury approaches the Court either for (1) Enforcement of fundamental rights of those who genuinely do not have adequate means of access to the judicial system or denied benefit of the statutory provisions incorporating the directive principles of State Policy for amelioration of their condition, and (2) preventing or annulling executive acts and omissions violative of Constitution or law resulting in substantial injury to public interest.\n116. According to him, the present litigation brought by Mr. Chowdhary does not satisfy the definition of PIL even remotely. With strong intensity of conviction, he states that the appellant does not stand in a better footing than that of a busybody or a rank meddlesome interloper or wayfarer or officious intervener having no concern except for some private motivation and oblique, consideration. He continues to acrimoniously urge that Mr. Chowdhary is acting as a proxy under the mask of public interest litigant for the benefit of all the real accused, in the discovery of whose identity the whole nation is interested and that Mr. Chowdhary on being inspired by some other extraneous consideration is attempting to keep all the named and unnamed accused behind a smoke screen so that the identity of those recipients of the kickbacks and bribes should not be discovered and go unpunished and the bribe money deposited in Swiss Banks should not be frozen. He also says the very purpose of filing this petition by Mr. Chowdhary for quashing the proceedings is only to stultify and frustrate the proceedings against the accused. He further states that when the scandal of Bofors'' affairs involving clandestine payoffs at the highest level which has come to light and surfaced by the Swedish Radio Broadcast, has assumed mammoth proportion, Mr. Chowdhary pretentiously claiming to be a crusader for justice in the name of pro bono publico has filed this benami litigation at the instance of the holders of foreign bank accounts and is attempting to thwart and stall the proceedings by masquerading the accused persons as paragons of virtue.\n117. person involved in a series of criminal offences of conspiracy, criminal breach of trust, cheating and bribery. It is the submission of the learned Solicitor General that Mr. Chowdhary, wearing the insignia of a public interest litigant has preferred the quashing petition before the High Court for the glare of publicity. According to him, the petition by Mr. Chowdhary has been drafted in an ingenious way without mentioning as to who all are respondents besides the Union of India and it is an ignoble and unscrupulous action and, therefore, both the Special Judge and the learned Judge of the High Court were justified in rejecting this petition holding that Mr. Chowdhary does not even have the semblance of public interest litigant and as such he has no locus standi.\n118. Mr. K. G. Bhagat, learned senior counsel appearing on behalf of Mr. Chowdhary after stating that the pro bono parties must have real, tangible and perceptible interest urged that in the present case, Mr. Chowdhary has espoused only real public interest and, therefore, his right of locus standi cannot be questioned. He asserts that the very registration of the case smacks of political vendetta.\n119. After deeply and carefully considering the submissions of all the parties, we see much force in the submissions made by the learned Solicitor General, Mr. A. D. Giri and Mr. Jethmalani, senior counsel. A perusal of the petitions filed by H. S. Chowdhary before the Special Judge and the High Court clearly unfolds that Mr. Chowdhary appears to be very much concerned with the personal and private interest of the accused in the criminal case and there is absolutely no involvement of public interest. Can it be said that this litigation is in the nature of PIL to vindicate and effectuate the public interest? The emphatic answer would be ''Not even a single ray of the characteristic of public interest litigation is visibly seen''.\n120. Indeed, we are surprised to note that in the petition filed before the High Court, Mr. Chowdhary has stated that it is his duty to see that ''individuals'' get justice from the Indian Courts. From whichever angle we survey and audit the contentions in both the petitions before the Courts below and the petition filed before this Court, there can be no escape except to come to the conclusion that Mr. Chowdhary has no locus standi at all to file these petitions, as found by the Courts below.\n121. In this connection, we would like to add a few words about the dismissal of the applications of the interveners.\n122. The High Court rejected the applications of the interveners as having no right to be impleaded as a consequence of the dismissal of the petition of H. S. Chowdhary on the ground that he has no locus standi. We too in our earlier Order having held that H. S. Chowdhary has no locus standi to file the petition or to invoke the revisional or extraordinary inherent jurisdiction of the High Court under Ss. 397 and 482 of the Code of Criminal Procedure respectively and that the petition under Art. 51 A of the Constitution cannot come within the true meaning and scope of public interest litigation, dismissed the applications of the interveners holding thus:\n\"Consequent upon the above conclusions (1) and (2), the appellants namely, Janta Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) who are before this Court equally have no right of seeking their impleadment/ intervention. For the same reasons, Dr. P. Nalla Thampy Thera also has no right to file the Writ Petition as a public interest litigant.\"\n123. The  self-explanatory and the intervention petitions were rejected only consequent upon our conclusions (1) and (2) recorded in our earlier Order.\n124. It is significant to note that Mr. Prashant Bhushan in his written submissions has stated, \"the Janta Dal never claimed any locus to intervene in the matter; and that in fact its stand is that Mr. Chowdhary has no locus to interfere in the investigation and that the Janta Dal intervened in the matter only after the High Court began to seriously entertain the petition of Mr. Chowdhary without even deciding the question of his locus and that the Janta Dal''s intervention was only to prevent sabotage of the investigation.\"\nRevisional and Inherent Powers of the High Court.\n125. The next question of law that comes for our Consideration is the suo motu power of the High Court in exercise of its powers under Ss. 190 (dealing with powers of the Magistrate to take cognizance of the offence), 397 (empowering the High Court or any Session Judge to exercise powers of revision), 401 (dealing with the High Court''s powers of revision) and 482 (dealing with the inherent powers of the High Court) of the Code of Criminal Procedure. Justice M. K. Chawla, learned Judge of the High Court relying on the decisions, namely (1) Rattan Singh v. State of Maharashtra ,  1976 Indlaw MP 13, (2) Mohammad v. State of Kerala,  1981 Indlaw KER 43 and Range Forest Officer, Sirsa v. Anand Venkataraman Hegde, 1977 Indlaw KAR 26 has held in his order, impugned herein thus: \"A bare perusal of these provisions leave no doubt in my mind that this Court by itself can call for the record of the lower Court if it comes to or is brought to its knowledge that any illegality is being committed at the instance of the State or by the Investigating Agency in the garb of discharging their duties under any provision of law.\" Justice M. K. Chawla on his own stating that there are ''six prima facie illegalities'' which, according to him, warranted suo motu cognizance in exercise of the powers under, Ss. 397, 401 and 482 of the Code directed the Office to register the case under the title, \"Court on its own motion v. State and CBI.\"\n126. We are pained to note that Justice M. K. Chawla has taken an extreme view that \"the Court can take judicial notice of any illegality being committed by any Court, with a view to prevent the injury being caused to the known or unknown aggrieved party\", even when the investigation is at its threshold. The very sentence which we have quoted above is indicative of the fact that the learned Judge in order to protect any possible injury that might be caused either during the investigation or on the culmination of the criminal proceedings to the known or un- known aggrieved party has determined to take suo motu cognizance and proceed with the matter, by virtually stepping into the shoes of the accused parties both present and prospective.\n127. Now let us briefly cogitate over the legal issue relating to the revisional and inherent jurisdiction of the High Court to call for the records and examine the records of any proceeding before any inferior criminal Court within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and to quash criminal proceeding, deliberate on the legality and correctness of the later part of his order of Justice M. K. Chawla in and by which he has assumed the jurisdiction to initiate suo motu proceedings, particularly for quashing the First Information Report and all other connected and allied proceedings arising during the course of the investigation.\n128. Sections 397, 401 and 482 of the new Code are analogous to Ss.435, 439 and 561(A) of the old Code of 1898 except for certain substitutions, omissions and modifications. Under S. 397, the High Court possesses the general power of superintendence over the actions of Courts subordinate to it which the discretionary power when administered on administration side is known as the power of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this Section, the High Court can, at any stage, on its own motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. The words in S. 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate Court.\n129. By virtue of the power under S. 401, the High Court can examine the proceedings of inferior Courts if the necessity for doing so is brought to its notice in any manner, namely, (1) when the records have been called for by itself, or (2) when the proceedings otherwise come to its knowledge.\n130. The object of the revisional jurisdiction under S. 401 is to confer power upon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some undeserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case.\n131. S. 482 which corresponds to S. 561 A of the old Code and to S. 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim \"Quadolex aliquid aliqui concedit, concedere videtur id sine quo ipsa, ess uon potest\" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.\n132. The Criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under S. 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.\n133. The Judicial Committee in (1) Emperor v. Nazir Ahmed,  1944 Indlaw PC 22, and (2) Lala Jai Ram Das v. Emperor,  has taken the view that S. 561 A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.\n134. This Court in Dr. Raghubir Sharan v. State of Bihar,  1963 Indlaw SC 350 had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J. speaking for himself and Raghubar Dayal, J. after referring a series of decisions of the Privy Council and of the various High Courts held thus:\n\"every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of JusticeBeing an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers\"\n135. Talab Hazi Hussain v. Madhukar Purshottam Mondkar,  1958 Indlaw SC 61 and Pampapathy v. State of Mysore, 1966 Indlaw SC 107\n136. Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra,  1977 Indlaw SC 299, that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam,  1958 Indlaw SC 61 (2) Khushi Ram v. Hashim,  1958 Indlaw SC 209 and (3) State of Orissa v. Ram Chander Agarwala,  1978 Indlaw SC 278.\n137. This inherent power conferred by S. 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the, proceedings at any stage. This Court in State of Haryana v. Ch. Bhajan Lal,  1990 Indlaw SC 91 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Ss. 397, 401 and 482 of the Code.\n138. The question that arises for our consideration is whether Mr. Justice M. K. Chawla in exercise of his inherent power is justified in directing the office of the High Court to register a case so that he could exercise his discretionary revisional and inherent powers. The text and tenor of the Impugned Order spells out that the initiation of the suo motu proceedings is to quash the FIR and the proceedings connected therewith as clearly borne out from the learned Judge''s statement reading \"that the FIR filed by the CBI in this case on the face of it does not disclose any offence\".\n139. The three decisions cited and relied upon by Mr. Justice M. K. Chawla in his Order cannot be of any assistance for initiating a suo Motu proceeding when the matter is under serious investigation.\n140. In Rattan Singh''s case  1976 Indlaw MP 13, the High Court of Madhya Pradesh finding certain illegalities in the prosecution relating to setting aside the conviction of two accused persons in an appeal preferred by them, extended the benefit to a non-appealing accused by exercising its suo Motu revisional. jurisdiction.\n141. In Mohammad''s case  1981 Indlaw KER 43 , the observation of the Kerala High Court that \"if a clear illegality or injustice comes to the, notice of the High Court by whatsoever means it might be, the suo Motu jurisdiction of the High Court is available to correct such mistake.\" This observation was made having regard to the facts of that case wherein the appellant instead of filing an appeal, filed a revision which was dismissed. Thereupon, realising the mistake the appellant filed an appeal before the appellate Court with an application for condonation of delay which was dismissed as barred by limitation. Then the appellant filed a revision before the High Court which allowed the petition holding that it would advance the ends of justice. It was only in those circumstances the observation about the suo Motu exercise of the power was made.\n142. In the third case relied on by Justice M. K. Chawla, namely, Range Forest Officer''s case 1977 Indlaw KAR 26 a vehicle belonging to the respondent was confiscated. The respondent unsuccessfully preferred an appeal against the order of confiscation before the Sessions Judge. Thereafter, the respondent filed a revision before the High Court under S. 397 of the new Code which was allowed and the confiscation was set aside. The appellant in this case filed an application under Art. 134(IC) of the Constitution for a certificate of fitness for appeal to the Supreme Court. Presumably, the jurisdiction under S. 401 of the Code was not invoked. Therefore, the High Court observed that even if the respondent had no right to file the revision nevertheless, the High Court could exercise its power of revision suo Motu.\n143. On carefully going through all the three decisions, we unhesitatingly hold that none of the decisions would be of any help to the facts of the present case.\n144. The inherent power of a High Court to stay proceedings has'' been repeatedly debated in many English Courts and a majority of the judgments has stressed that the power of staying proceedings should be reserved only for exceptional cases. We are not inclined to refer all those English decisions except a few.\n145. In Connelly v. D.P.P., Lord Ried at page 1296 expressed his view \"there must always be a residual discretion to prevent anything which savours of abuse of process\" with which view all the members of the House of Lords agreed but differed as to whether this entitled a Court to stay a lawful prosecution.\n146. The inherent power of a Court to stay proceedings was again the subject of debate in D.P.P. v. Humphrys, .\n147. Most of the decisions of the English cases laid down the dictum that only in cases where there is substantial amount of delay or potential abuse of process or vexatious prosecution or the proceedings tainted with malice etc. alone the Court can step in by exercise of the inherent power.\n148. The Privy Council in Emperor v. Khwaja Nazir Ahmad,  1944 Indlaw PC 22 examined the question of the inherent power of the High Court in interfering with the statutory investigation of the police and laid down the following dictum:\n\"Just as it is essential that every one accused of a crime should have free accesss to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus.\nIn such a case as the present, however, the Court''s functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561 A has given increased powers to the Court which it did not possess before that Section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.\"\n149. Lord Denning in R. v. Metroplitan Police Commissioner,   has observed thus:\n\"Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police or the Chief Constable as the case may be, to decide in any particular case whether enquiries should be pursued, or whether an arrest should be made or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter.\"\n150. This Court in Jehan Singh v. Delhi Administration,  1974 Indlaw SC 403 held that when the First Information Report discloses the commission of a cognizable offence, the statutory power of the Police to investigate the cognizable offence cannot be interfered with in exercise of the inherent power of the Court.\n151. Chandrachud, J. (as he then was) in Kurukshetra University v. State of Haryana,  1977 Indlaw SC 337 pointed out thus:\n\"Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. Thus, the High Court in exercise of inherent powers under Section 482, Criminal P.C. cannot quash a first information report more so when the police had not even commenced the investigation and no proceeding at all is pending in any Court in pursuance of the said F. I. R. \"\n152. Desai, J. articulating for the Bench in State of Bihar v. J.A.C. Saldanha, 1979 Indlaw SC 344 has clearly well demarcated the sphere of activity in the field of crime detection in the following words:\n\"Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government.\"\n153. In Eastern Spinning Mills Shri Virendra Kumar Sharda v. Shri Rajiv Poddar, 1984 Indlaw SC 18 this Court has observed thus:\n\"We consider it absolutely unnecessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation.\"\n154. In State of Haryana v. Ch. Bhajan Lal,  1990 Indlaw SC 91, we had an occasion to examine the scope of the Inherent power of the High Court in interfering with the investigation of an offence by the police and laid down the following rule:\nThe sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizen to the mercy of police echelons since human dignity is a dear value of our Constitution.\"\n155.Jasbhai Motibhai Desia v. Roshan Kumar, 1975 Indlaw SC 372 Amar Nath v. State of Haryana, 1977 Indlaw SC 270 and State of Bihar v. V.P. Sharma,  1991 Indlaw SC 1053.\n156. Sawant, J. in his submission note in Kekoo J. Maneckji v. Union of India  1979 Indlaw MUM 3801 has expressed his opinion thus :\n\"This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence.\"\n157. The Seven-Judges Full Bench of the Allahabad High Court went into the matter very exhaustively in Ram Lal Yadav v. State of U.P.  1989 Indlaw ALL 491 and held that \"the power of the police to investigate into a report which discloses the commission of a cognizable offence is unfettered and cannot be interfered with by the High Court in exercise of its inherent powers under Section 482, Cr.P.C.\" ''This decision has overruled two earlier decisions of that Court in Prashant Gaur v. State of U.P.  and Puttan Singh v. State of U.P., .\n158. After the proposition of law enunciated by this Court in a series of decisions relating to exercise of the extraordinary power u/art. 226 of the Constitution or the inherent powers under S. 482 of the Code in Bhaj an Lal''s case  1990 Indlaw SC 91, we have given certain category of cases by way of illustrations wherein the power of quashing could be exercised either for preventing abuse of process of any Court or otherwise to secure the ends of justice stating that it may not be possible to lay down any precise, clearly defined and sufficient channelised infrangible guidelines and rigid formula to give an exhaustive list of various kinds of cases wherein such power should be exercised. We do not like to prolong the discussion on this point any more. However, it has become necessary at least to deal with the first alleged illegality. We are constrained to do so because of the assertion of the High Court; that being \"that the First information Report on the face of it does not disclose any offence.\"\n159. According to Mr. Ram Jethmalani, the conclusion, arrived at by Mr. Justice M.K. Chawla is absolutely unjustified and perverse since the First Information Report clearly alleges that the payments made by Bofors are illegal gratification paid to Indian public servants either to influence them or as a reward for the contract given to Bofors. We have carefully and scrupulously gone through the First Information Report and we are unable to share this view of Mr. Justice Chawla, quite apart from the other grounds on which the accused may like to attack the First Information Report. None of the named accused came before Mr. Justice Chawla raising this question of lack of allegations and particulars in the FIR so as to constitute any offence, muchless a cognizable offence.\n160. The then Minister of Defence, Shri K.C. Pant had stated that \"if any evidence is produced involving violations of the law, the matter will be thoroughly investigated and the guilty, whoever they may be punished\", and thereafter the then Prime Minister on 20th April 1987 declared that \"if any evidence proving the involvement of middlemen or payoffs or of bribes or commissions are brought, the Government will not hesitate to take action and will not allow anybody, however high-up to go free\" which statement was subsequently reasserted by the Minister of Defence. The excerpts of both the statements in the Parliament have been cited in the earlier part of this judgment.\n161. While so, it shocks our judicial conscience that Mr. Justice M.K. Chawla before whom no aggrieved or affected party had come challenging the FIR, has taken suo motu action and recorded such a categorical assertion that ''no offence'' thereby meaning much less a cognizable offence is made out in the FIR.\n162. As pointed out in Nirmaljit Singh Hoon v. State of West Bengal, 1972 Indlaw SC 492 that once an investigation by the police is ordered by a Magistrate u/s. 156(3) of the Code, the Magistrate cannot place any limitations or direct the officer conducting it as to how to conduct the investigation. When that is the position of law, Mr. Justice M.K. Chawla, in our considered view, has overstepped his jurisdiction and made the statement which is unwarranted and uncalled for. As we feel that any further deliberation on this matter may affect the merits of the case at any later point of time. We refrain from making any more observation on this aspect as the matter is at the threshold of the investigation.\n163. Therefore, we are constrained to set aside that statement, holding that the opinion of Justice Chawla in this regard has no legal effect or consequence. So far as the rest of the alleged illegalities are concerned, we straightway say that those grounds are not available for suo motu exercise of power in the light of the well settled legal principles enunciated by this Court for the exercise of such powers.\n164. In the result, we reiterate our earlier conclusion that we agree with the first part of the order dated 19-12-1990 of Mr. Justice M.K. Chawla but quash the later part of the impugned order taking suo motu cognizance under Ss.397, 401 read with S. 482 of the Code issuing show cause notice to the CBI and the State. We make it clear that we do not express any opinion on the-merits of the case including the legal tenability of the alleged illegalities opined by Mr. Justice M. K. Chawla in his impugned order.\nOrder accordingly.\n"}
+{"id": "HRsYwP8KXS", "title": "", "text": "Union of India and Others v Sushil Kumar Modi and Others\nSupreme Court of India\n\n11 September 1997\nCivil Appeal Nos. 14164-65 of 1996\nThe Order of the Court was as follows :\nLeave granted.\n1.  This order has to be read in continuation of our order dated November 5, 1996 passed in Civil Appeal Nos. 14164-65 of 1996, Union of India & Ors. Vs. Sushil Kumar Modi & Ors., reported in  1996 Indlaw SC 1578. These appeals by special leave are against some portions of the orders dated November 13, 1996 and December 19, 1996 passed by the Patna High Court in the same matter - CWJC No. 1617 of 1996 with CWJC No. 602 of 1996 - as a sequel thereto. The material facts need not be reiterated as they are mentioned in our aforesaid order dated November 5, 1996.\n2.  When the matter was taken up in the Patna High Court subsequent to our aforesaid order dated November 5, 1996, during the further proceedings after our order, the High Court has made the two orders dated November 13, 1996 and December 19, 1996. The learned Attorney General, on behalf of the appellants, has indicated certain portions of these two orders and contended that they do not match with our earlier order dated November 5, 1996. It would be appropriate at this stage to quote those portions of the two orders to which grievance is made by the learned Attorney General. These are:\nIn order dated November 13, 1996:\nPortion 'A':\n\"The Supreme Court has not laid down the modality of making reference to the Attorney General in case of difference of opinion. What if the Director does not make the reference on his own. According to us, this can be sorted out by asking the Director, CBI, to submit the complete report(s) submitted by the Joint Director and/or other investigating officers so that in the event Court finds that there is difference of opinion, which requires resolution by the Attorney General, the same may be referred to him.\"\n3.  Portion 'B': \"The aforesaid aspects of the matter as also other aspects, which were briefly mentioned during the course of hearing today, can be more properly and effectively discussed in the presence of the Director, CBI, himself. He is also to be told about the import of the Supreme Court's orders. We are, therefore, of the opinion that the next hearing should take place in his presence.\" In order dated December 19, 1996: Whole of para 4, particularly the following:\nPortion 'C':\n\"......the present case is the only case of its kind in which investigation is being monitored by the High Court......in the interest of proper and effective monitoring of the case we think it appropriate to direct that the final report which is submitted to the CBI Headquarters/Director be submitted in its original form.......The correct position, which emerges from the order of the Supreme Court, is that the report of the Joint Director is not to be submitted to this Court directly, the same has to be sent to the Director, CBI/Headquarters and then the same is to be filed in this Court. As indicated above, there is a very thin line of distinction between vetting and editing and if this authority to vet the report submitted to him is given to the Director, he may as well edit a part of it. The proper course, no doubt, would be to hold discussions across the table between the Director, Joint Director and others whose presence may be considered necessary so that difference, if any, between them are ironed out and a unanimous report is submitted. However, if such unanimity is not possible to arrive at, the Director must submit the original report as submitted to him along with his comments/views so that this Court may consider that too and issue appropriate directions.\"\nIn para 5, the following:\nPortion 'D':\n\"....In those cases also the conspiracy angle does not appear to have been gone into, which is so vital for proper investigation into the crimes and in respect of which judicial finding has been recorded in the main judgment.\"\nIn para 6, the following:\nPortion 'E':\n\"In this connection we would also like to impress upon the Director to consider in consultation with the Joint Director the desirability of posting/retaining officers, who do not belong to this State or the state cadre. Keeping in view the involvement of a very large number of persons of different hue and kind, chances of their influencing persons having local background cannot be ruled out....\".\nIn para 8, the following:\n4.  Portion 'F': \"...The reports contain materials which constitute prima facie case against the persons concerned and it is not persons concerned and it is not understandable as to why chargesheet cannot be submitted on the basis of the materials referred to therein...\"\n5. The learned Attorney General submitted that the above e tracts of the two orders made by the High Court, in particular, are unwarranted apart from certain other observations therein which could have been avoided. In reply Shri Ram Jethmalani submitted that the observations of the High Court have to be understood in the context as indicating the manner in which the Central Bureau of Investigation. He submitted that a grievance of this kind by the CBI does not appear to be appropriate.\n6.  At the outset, we would indicate that the nature of proceedings before the High Court is somewhat similar to those pending in this Court in Writ Petition (Crl.) Nos. 340-343 of 1993, Vineet Narain & Ors. Vs. Union of India & Ors., 1996 Indlaw SC 3437 and Writ Petition (Civil) No. 640 of 1995, Anukul Chandra Pradhan Vs. Union of India & Ors 1996 Indlaw SC 1235., and, therefore, the High Court is required to proceed with the matter in a similar manner. It has to be borne in mind that the purpose of these proceedings is essentially to ensure performance of the statutory duty by the CBI and the other Government agencies in accordance with law for the proper implementation of the rule of law. To achieve this object a fair, honest and expeditious investigation into every reasonable accusation against each and every person reasonably suspected of involvement in the alleged offences has to be made strictly in accordance with law. The duty of the Court in such proceedings is, therefore, to ensure that the CBI and other Government agencies do their duty and do so strictly in conformity with law. In these proceedings, the Court is not required to go into the merits of the accusation or even to express any opinion thereon, which is a matter for consideration by the competent court in which the charge-sheet is filed and the accused have to face trial.\n7. It is, therefore, necessary that not even an observation relating to the merits of the accusation is made by the Court in these proceedings lest it prejudice the accused at the trial. The nature of these proceedings may be described as that of 'continuing mandamus' to require performance of its duty by the CBI and the other concerned Government agencies. The concerned agencies must bear in mind and, if needed, be reminded of the caution administered by Lord Denning in this behalf in R. Vs. Metropolitan Police Commissioner. Indicating the duty of the Commissioner of Police, Lord Denning stated thus:-\n\"...I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the secretary of State.....I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone....\"\n8.  The nature of such a proceeding in a Court of law was also indicated by Lord Denning, as under:\n\"A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced, I think, either by action at the suit of the Attorney- General: or by the prerogative order of mandamus...\". (emphasis supplied)\n9. There can hardly be any doubt that the obligation of the police in our constitutional scheme is no less.\n10.  According to the Code of Criminal Procedure, the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority, Abhinandan Jha Vs. Dinesh Mishra, 1967 Indlaw SC 445. This must be borne in mind as also that the scope and purpose of a proceeding like the present is to ensure a proper and faithful performance of its duty by the police officer by resort to the prerogative writ of mandamus.\n11.  To ensure this aspect, we had directed in our earlier order dated November 5, 1996 that in case of difference of opinion at any stage during the investigation, the final decision is not to be taken by the Director, CBI or any other officer but by the Attorney General on reference being made to him of the difference of opinion between the concerned officers. This part of our earlier directions was clear in the context in which it was made and this is to be understood as a direction to the Director, CBI for compliance in the manner indicated. The High Court is only required to ensure that the Director, CBI does not close any investigation based only upon his individual opinion if there be any difference of opinion between him and the concerned officers in the CBI. Such a matter is then required to be referred by the Director to the Attorney General for his opinion, which would govern the further action to be taken therein.\n12. The above quoted portion 'A' of the order dated November 13, 1996 of the High Court requires the High Court to act in the manner herein indicated. So far as portion 'B', as quoted above, of the order dated November 13, 1996 is concerned, it is sufficient for us to observe that the High Court would take into account the fact that the personal presence of the Director, CBI in the High Court may be required only when it is essential for a purpose which cannot be served by the presence of the other officers of the CBI who normally represent the CBI at the hearings in the High Court. In view of the numerous cases pending in different High Courts, the Director, CBI personally may not be left with sufficient time from his official duties to appear personally at the hearings of these matters in the High Courts. However, it is the duty of the Director, CBI to ensure proper representation on his behalf in the High Court so that the High Court gets all the assistance needed at the hearings.\n13.  The observations of the High Court contained in the above quoted portion 'D' in para 5 and portion 'F' in para 8 of its order, do not appear to conform strictly to the manner of exercise of the monitoring process by the Court. It is likely that they may be construed as expression of opinion on the merits of the case. Portion 'C' in para 4 of the High Court's order appears to be unnecessary. For the purpose of properly monitoring the case in terms of the order of this Court, keeping in view the nature of this proceeding and the manner in which the exercise is to be performed to ensure performance of its duty by the CBI, guidance through the counsel for the CBI could have been given by the High Court without entering into the merits of any of the accusations.\n14.  The only remaining portion of the High Court's order for consideration is Portion 'E' in para 6. Suffice it to say that the High Court has merely suggested to the Director, CBI to consider the desirability of not involving any officer of the Bihar cadre in the investigation but no such directing has been given. It appears that the High Court intended to impress upon the Director, CBI the need to consider avoiding any possible embarrassment to officers of the Bihar cadre in view of the suspicion of the alleged involvement of several important persons in the State administration. We do not read the observations to mean that they cast any aspersion on the officers of the Bihar cadre. The learned Attorney General also did not further press this objection since this observation has to be so construed in the context.\n15.  It appears to us necessary to reiterate that the proceeding before the High Court in the present case being somewhat similar to the proceedings in Writ Petition (Crl.) Nos. 340-343 of 1993, Vineet Narain & Ors. Vs. Union of India & Ors., 1996 Indlaw SC 3437 and Writ Petition (Civil) No. 640 of 1995, Anukul Chandra Pradhan Vs. Union of India & Ors 1996 Indlaw SC 1235., pending in this Court, the procedure required to be adopted by the High Court has to be on the same lines. We also consider it appropriate to draw the attention of the CBI and the High Court to the orders of this Court made in these matters indicating the manner of performance of the duty. In Vineet Narain & Ors. Vs. Union of India & Anr., 1996 Indlaw SC 3437, it was said:\n\"In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law. In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.\"\n16. In Vineet Narain & Ors. Vs. Union of India & Anr., 1996 Indlaw SC 3437, it was said:\n\"To eliminate any impression of bias and avoid erosion of credibility of the investigations being made by the CBI and any reasonable impression of lack of fairness and objectivity therein, it is directed that the CBI would not take any instructions from, report to, or furnish any particulars thereof to any authority personally interested in or likely to be affected by the outcome of the investigations into any accusation. This direction applies even in relation to any authority which exercises administrative control over the CBI by virtue of the office he holds, without any exception. We may add that this also accords with that the learned Solicitor General has very fairly submitted before us about the mode of functioning of the CBI in this matter.\"\n17. In Anukul Chandra Pradhan Vs. Union of India & Ors.,1996 Indlaw SC 1235, its was said:\n\"A note of caution may be appropriate. No occasion should arise for an impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial. This requirement, undoubtedly has to be kept in view during the entire trial. It is reiterated, that any observation made by this Court for the purpose of the proceedings pending here has no bearing on the merits of the accusation, and is not to influence the trial in any manner. Care must be taken to ensure that the credibility of the judicial process is not undermined in any manner.\"\n18. The true purpose and scope of a proceeding of this nature clearly emerges from the above quoted orders passed in the cases pending in this Court. Some of the orders are indicated above. The required guidance to the CBI and other government agencies as well as to the courts' monitoring such investigations is available from the same. The delicate task of ensuring implementation of the rule of law by requiring proper performance of its duty by the CBI and other Government agencies, while taking care to avoid the likelihood of any prejudice to the accused at the ensuing trial because of any observation made on the merits of the accusation in the present proceeding. We have no doubt that all concerned, including the High Court, would bear in mind this aspect to prevent any reasonable impression of erosion in the credibility of the judicial process.\n19.  We have no doubt that the CBI and the High Court would proceed further in the matter as indicated above. There can be no grievance to the CBI or any other authority if the High Court's order and the proceedings before it are so understood and continued. We make it clear that the above orders made by the High Court are to be construed and understood in the manner indicated herein.\nThese appeals are disposed of, accordingly.\nAppeals disposed of\n"}
+{"id": "Q7iLWceWwx", "title": "", "text": "Vineet Narain & Ors. v Union Of India & Anr.\nSupreme Court of India\n\n30 January 1996\nWrit Petition (Crl.) Nos. 340-43 of 1993\nThe Order of the Court was as follows :\n1.  The true scope of this writ petition has been indicated during the earlier hearings. At this stage, when some charge sheets have been filed in the Special Court and there is considerable publicity in the media regarding this matter, with some speculation about its true scope, it is appropriate to make this order to form a part of the record.\n2.  The gist of the allegations in the writ petition are that Government agencies, like the CBI and the revenue authorities, have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters arising out of the seizure of the so called \"Jain Diaries\" in certain raids conducted by the CBI. It is alleged that the apprehending of certain terrories led to the discovery of financial support to them by clandestine and illegal means, by use of tainted funds obtained through 'hawala' transactions; that this also disclosed a nexus between several important politicians, bureaucrats and criminals, who are all recipients of money from unlawful sources given for unlawful considerations; that the the CBI and other Government agencies have failed to fully investigate into the matter and take it to the logical and point of the trail and to prosecute all persons who have committed any crime; that this is being done with a view to protect the persons involved, who are very influential and powerful in the present set up; that the matter discloses a definite nexus between crime and corruption in public life at high places in the country which poses a serious threat to the integrity, security and economy of the nation; that probity in public life, to prevent erosion of the rule of law and the preservation of democracy in the country, requires that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against each and every persons involved, irrespective of the height at which he is placed in the power set up.\n3.  The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all Government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenant of rule of law:\n\"Be you ever so high, the law is above you\".\n4. Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the Government agencies.\n5.  In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.\n6.  In case of persons against whom a prima facie case is made out and a charge sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.\n7.  However. if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion. No such report having been submitted by the CBI or any other agency till now in this Court, action on such a report by this Court would be considered, if any when that occasion arises. We also direct that no settlement should be arrived at nor any offence compounded by any authority without prior leave of this Court.\n8.  We may add that on account of the great public interest involved in this matter, the CBI and other Government agencies must expedite their action to complete the task and prevent pendency of this matter beyond the period necessary. It is needless to observe that the results achieved so far do not match the available time and opportunity for a full investigation ever since the matter came to light. It is of utmost national significance that no further time is lost in completion of the task.\nOrder Accordingly\n"}
+{"id": "2BR4cXsxjG", "title": "", "text": "Ashok Kumar Pandey v State of West Bengal and Others\nSupreme Court of India\n\n18 November 2003\nWrit Petition (crl.) 199 of 2003\nThe Judgment was delivered by : Hon'ble Justice Arijit Pasayat\n1. This petition u/art. 32 of the Constitution of India, 1950 (in short 'the Constitution') has been filed purportedly in public interest. The prayer in the writ petition is to the effect that the death sentence imposed on one Dhananjay Chatterjee @ Dhana (hereinafter referred to as 'the accused') by the Sessions Court, Alipur, West Bengal, affirmed by the Calcutta High Court and this Court, needs to be converted to a life sentence because there has been no execution of the death sentence for a long time. Reliance was placed on a Constitution Bench decision of this Court in Smt. Triveniben vs. State of Gujarat, (1989 (1) SCC 678 1989 Indlaw SC 43).\n2. According to the petitioner, he saw a news item in a TV channel wherein it was shown that the authorities were unaware about the non-execution of the death sentence and, therefore, condemned prisoner, the accused has suffered a great degree of mental torture and that itself is a ground for conversion of his death sentence to a life sentence on the basis of ratio in Triveniben's case 1989 Indlaw SC 43 (supra). It needs to be noted here that prayer for conversion of death sentence to life sentence has already been turned down by the Governor of West Bengal and the President of India in February 1994 and June 1994 respectively as stated in the petition. When the matter was placed for admission, we asked the petitioner who appeared in-person as to what was his locus standi and how a petition u/art. 32 is maintainable on such nature of information by which he claims to have come to know of it. His answer was that as a public spirited citizen of the country, he has a locus to present the petition and when the matter involved life and liberty of a citizen, this Court should not stand on technicalities and should give effect to the ratio in Triveniben's case 1989 Indlaw SC 43 (supra). There has been violation of Art. 21 of the Constitution and the prolonged delay in execution of sentence is violative of Article 21, so far as the accused is concerned.\n3. Reliance was also placed on few decisions, for example, Sunil Batra (II) vs. Delhi Administration, (1980 (3) SCC 488 1979 Indlaw SC 329); S.P. Gupta vs. Union of India, (1981 (Supp.) SCC 87 1981 Indlaw SC 599); Daya Singh vs. Union of India, (1991 (3) SCC 61) 1991 Indlaw SC 103 and Janata Dal vs. H.S. Choudhary, (1992 (4) SCC 305 1992 Indlaw SC 1257) to substantiate the plea that the petitioner had locus standi to present the petition in public interest and this was a genuine public interest litigation.\n4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be \"publicity interest litigation\" or \"private interest litigation\" or \"politics interest litigation\" or the latest trend \"paise income litigation\". If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in The Janta Dal case 1992 Indlaw SC 1257 (supra) and Kazi Lhendup Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116 1994 Indlaw SC 422). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. See Ramjas Foundation vs. Union of India, (AIR 1993 SC 852 1992 Indlaw SC 1037) and K.R. Srinivas vs. R.M. Premchand, (1994 (6) SCC 620 1994 Indlaw SC 1765).\n5. It is necessary to take note of the meaning of expression 'public interest litigation'. In Strouds Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus:\n\"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.\"\n6. In Black's Law Dictionary (Sixth Edition), \"public interest\" is defined as follows :\n\"Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government \"\n7. In Janata Dal case 1992 Indlaw SC 1257 (supra) this Court considered the scope of public interest litigation. In para 52 of the said judgment, after considering what is public interest, has laid down as follows :\n\"The expression 'litigation' means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression \"PIL\" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.\"\n8. In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:\n\"Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.\"\n9. In para 96 of the said judgment, it has further been pointed out as follows:\n\"While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.\"\n10. In subsequent paras of the said judgment, it was observed as follows:\n\"It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold\".\n11. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the do others of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.\n12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.\n13. The Council for Public Interest Law set up by the Ford Foundation in USA defined the \"public interest litigation\" in its report of Public Interest Law, USA, 1976 as follows:\n\"Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.\"\n14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.\n15. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481 1993 Indlaw SC 461), and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151 1994 Indlaw SC 1633). No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K. Parasaran, (1996) 7 JT 265 1996 Indlaw SC 977). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.\n16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and Others. v. Jitendra Kumar Mishra and Others. (AIR 1999 SC 114 1998 Indlaw SC 235), this Court held that in service matters PILs should not be entertained, the inflow of so- called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.\n17. Coming to the facts of the case, it has not been shown as to how and in what manner the accused, condemned prisoner is handicapped in not seeking relief if any as available in law. The matter pertains to something to happen or not at Kolkatta and what was the truth about the news or cause for the delay, even if it be is not known or ascertained or even attempted to be ascertained by the petitioner before approaching this Court. To a pointed query, the petitioner submitted that the petitioner \"may not be aware\" of his rights, that except the news he heard he could not say any further and \"the respondent-State may come and clarify the position. This petition cannot be entertained on such speculative foundations and premises and to make a roving enquiry. May be at times even on certain unconfirmed news but depending upon the gravity or heinous nature of the crime alleged to be perpetrated which would prove to be obnoxious to the avowed public policy, morals and greater societal interests involved, Courts have ventured to intervene but we are not satisfied that this could be one such case, on the facts disclosed. It is reliably learnt that a petition with almost identical prayers was filed before the Calcutta High Court by relatives of the accused and the same has been recently dismissed by the High Court.\n18. In Gupta's case 1981 Indlaw SC 599 (supra) it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution:\n\"But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.\"\n19. In State of H.P. vs. A Parent of a Student of Medical College, Simla and Others. (1985 (3) SCC 169 1985 Indlaw SC 286), it has been said that public interest litigation is a weapon which has to be used with great care and circumspection.\n20. Khalid, J. in his separate supplementing judgment in Sachidanand Pandey vs. State of W.B., (1987 (2) SCC 295 1987 Indlaw SC 28720, 331) said:\n\"Today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public. They must be above suspicion.  * * *\nPublic interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.  * * *\nI will be second to none in extending help when such help is required. But this does not mean that the do others of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants.\"\n21. Sabyasachi Mukharji, J. (as he then was) speaking for the Bench in Ramsharan Autyanuprasi vs. Union of India, (1989 Supp (1) SCC 251 1988 Indlaw SC 916), was in full agreement with the view expressed by Khalid, J. in Sachidanand Pandey's case 1987 Indlaw SC 28720 (supra) and added that 'public interest litigation' is an instrument of the administration of justice to be used properly in proper cases.\n22. See also separate judgment by Pathak, J. (as he then was) in Bandhua Mukti Morcha vs. Union of India, (1984 (3) SCC 161 1983 Indlaw SC 192).\n23. Sarkaria, J. in Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and Others. (1976 (1) SCC 671 1975 Indlaw SC 372) expressed his view that the application of the busybody should be rejected at the threshold in the following terms:\n\"It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories : (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.\"\n24. Krishna Iyer, J. in Fertilizer Corporation Kamgar Union (Regd.) Sundri and Others. v. Union of India, (1981 (1) SCC 568 1980 Indlaw SC 243) in stronger terms stated:\n\"If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him.\"\n25. In Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990 (4) SCC 449 1990 Indlaw SC 199), Sabyasachi Mukharji, C.J. observed:\n\"While it is the duty of this Court to enforce fundamental rights, it is also the duty of this Court to ensure that this weapon u/art. 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of fundamental rights being considered by the court.\"\n26. In Union Carbide Corporation v. Union of India, (1991 (4) SCC 584 1991 Indlaw SC 912, 610), Ranganath Mishra, C.J. in his separate judgment while concurring with the conclusions of the majority judgment has said thus:\n\"I am prepared to assume, nay, concede, that public activists should also be permitted to espouse the cause of the poor citizens but there must be a limit set to such activity and nothing perhaps should be done which would affect the dignity of the Court and bring down the serviceability of the institution to the people at large. Those who are acquainted with jurisprudence and enjoy social privilege as men educated in law owe an obligation to the community of educating it properly and allowing the judicial process to continue unsoiled.\"\n27. In Subhash Kumar v. State of Bihar, (1991 (1) SCC 598 1991 Indlaw SC 913) it was observed as follows:\n\"Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court u/art. 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court u/art. 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is the duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation\".\n28. In the words of Bhagwati, J. (as he then was) \"the courts must be careful in entertaining public interest litigations\" or in the words of Sarkaria, J. \"the applications of the busybodies should be rejected at the threshold itself\" and as Krishna Iyer, J. has pointed out, \"the do others of the courts should not be ajar for such vexatious litigants\".\n29. It will be appropriate at this stage to take note of what this Court felt when dealing with petitions u/art. 32 with somewhat similar issues. The petitioner in one case filed writ petition u/art. 32 of the Constitution challenging the order of this Court whereby it had affirmed the conviction of two accused and confirmed the death sentence for reasons stated in its judgment in State of Maharashtra v. Sukhdeo Singh (AIR 1992 SC 2100 1992 Indlaw SC 44).\n30. The writ petition was dismissed holding that third party has no locus standi to challenge the conviction by filing the writ petition u/art. 32 of the Constitution. (See Simranjit Singh Mann v. Union of India (AIR 1993 SC 280 1992 Indlaw SC 75)\n31. The petitioner there claimed to be a friend of the convicts, and it was held that he has no locus standi to move the Court u/art. 32 of the Constitution. Unless the aggrieved party is a minor or an insane or one who is suffering from any other disability which the law recognizes as sufficient to permit another person e.g., next friend, to move the Court on his behalf; for example, see Ss. 320(4-a), 330(2) read with Ss. 335(1)(b) and 339 of the Code of Criminal Procedure, 1973 (in short the 'Code'). Ordinarily the aggrieved party has the right to seek redress. Admittedly, it was not the case of the petitioner that the two convicts are minothers or insane persons but had argued that since they were suffering from an acute obsession such obsession amounts to a legal disability which permits the next friend to initiate proceedings u/art. 32 of the Constitution.\n32. A mere obsession based on religious belief or any other personal philosophy cannot be regarded as a legal disability of the type recognized by the Code or any other law which would permit initiation of proceedings by a third party, be he a friend. It must be remembered that the repercussions of permitting such a third party to challenge the findings of the Court can be serious, e.g., in the instant case, itself the co-accused who have been acquitted by the Designated Court and whose acquittal has been confirmed by this Court would run the risk of a fresh trial and a possible conviction.\n33. Similar view was expressed in Karamjeet Singh v. Union of India (AIR 1993 SC 284 1992 Indlaw SC 202).\n34. It was noted that Art. 32 which finds a place in Part III of the Constitution entitled \"fundamental rights\" provides that right to move this Court for the enforcement of the rights conferred in that part is guaranteed. It empowers this Court to issue directions or orders or writs for the enforcement of any of the fundamental rights. The petitioner did not seek to enforce any of his fundamental rights nor did he complain that any of his fundamental right was violated. He sought to enforce the fundamental rights of others, namely, the two condemned convicts who themselves did not complain of their violation. Ordinarily, the aggrieved party which is affected by any order has the right to seek redress by questioning the legality, validity or correctness of the order, unless such party is a minor, an insane person or is suffering from any other disability which the law recognizes as sufficient to permit another person, e.g. next friend, to move the court on his behalf.\n35. Unless an aggrieved party is under some disability recognized by law, it would be unsafe and hazardous to allow any third party be a member of the Bar to question the decision against third parties.\n36. Neither under the provisions of the Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence.\n37. Based on the above backgrounds, we do not think this a fit case which can be entertained and that too, u/art. 32 of the Constitution and is accordingly dismissed, but without costs.\n"}
+{"id": "DO4lKNEfvu", "title": "", "text": "Registrar. High Court Of Madras Etc. v R. Rajiah And K. Rajeswaran\nSupreme Court of India\n\n11  May  1988\nCivil Appeal No. 367 and 368 of 1984\nThe Judgment was delivered by: M. M. Dutt, J.\n1.  These two appeals are directed against a common judgment of the Division Bench of the Madras High Court whereby, in exercise of its jurisdiction u/art. 226 of the Constitution of India, the High Court quashed the orders of compulsory retirement of the two respondents, Mr. R. Rajiah and Mr K. Rajeswaran, who were then the District Munsifs.\n2.  The respondent, R. Rajiah, originally joined service as a Sub-Magistrate on 3.3.1965. On 6.1.1973, he was appointed a District Munsif in the Tamil Nadu State Judicial Service. While he was functioning as District Munsif, on 3.3.1980 the Registrar of the High Court, the appellant herein, sent a communication to the respondent Rajiah stating therein that he was being compulsorily retired from service in public interest with effect from 3.3.1980\n3.  The other respondent, K. Rajeswaran, was also originally appointed a Sub-Magistrate in 1953. On 29.11. 1971, he was appointed a District Munsif having been selected by the Tamil Nadu Public Service Commission. On 22.2.1976, the High Court passed an order confirming him as District Munsif with effect from 1.1.1976. On 27.10.1976, the High Court passed an order compulsorily retiring him from service, which was communicated to him by the Registrar.\n4.  Both the respondents being aggrieved by the orders of compulsory retirement, moved the High Court u/art. 226 of the Constitution challenging the validity of the impugned ordes of compulsory retirement passed by the High Court in its administrative jurisdiction under Rule 56(d) of the Fundamental Rules.\n5.  The principal contention of the respondents before the High Court was that the High Court had no power to oompulsorily retire members of the Tamil Nadu State Judicial Service. Such an order could be passed only by the State Governor, who was the appointing authority. All that the High Court could do was to make a recommendation to the State Governor in that behalf. It was also contended on behalf of the respondents that there was no material on record which would justify the premature retirement of the respondents. The respondents also challenged the validity of the Constitution of the Review Committees of the High Court that passed the impugned orders of compulsory retirement.\n6.  Two learned Judges of the Division Bench delivered two separate judgments. One of the learned Judges of the Division Bench took the view that though it was within the jurisdiction of the High Court to take a decision whether a member of the State Judicial Service should be compulsorily retired or not in public interest, the formal order of compulsory retirement was to be passed by the Governor acting on the recommendation of the High Court. The other learned Judge, however, did not subscribe to the above view. According to him, it was the High Court which was competent to pass an order of compulsory retirement of a member of the State Judicial Service without any formal order by the Governor under rule 56(d) of the Fundamental Rules. Both the learned Judges, however, came to the conclusion that there was no material on record to justify the impugned orders of compulsory retirement of the two respondents. The learned Judges also held against the validity of the Constitution of the Review Committee of the High Court that considered the question of passing the order of compulsory retirement of the respondent, Rajeswaran. According to the learned Judges, the irregular or illegal constitution of the Review Committee vitiated the impugned order of compulsory retirement. In the case of respondent, Rajiah, it was held that the manner in which the Review Committee considered the question of compulsory retirement of Rajiah was illegal. The writ petitions filed by the respondents were accordingly, allowed by the High Court and the impugned orders of compulsory retirement were quashed. Hence these two appeals.\n7.  Mr. Datta, learned Additional Solicitor General appearing on behalf of the High Court, has strenuously urged that it is the High Court and the High Court alone that is competent to pass an order of compulsory retirement of a member of the subordinate judiciary under rule 56(d) of the Fundamental Rules. He has placed much reliance on the provision of Art. 235 of the Constitution. It is submitted by him that unless it is held that the High Court is the only competent authority to pass an order of compulsory retirement, it would be denuding the High Court of its control over subordinate courts as conferred on it by Art. 235 of the Constitution. On the merits of the case, it is submitted by the learned Additional Solicitor General that the Division Bench of the High Court was not at all justified in considering the question as to the adequacy or otherwise of the materials on record in support of the impugned orders of compulsory retirement.\n8.  Before considering the contention advanced on the basis of Art. 235 of the Constitution, we may, at this stage, refer to the provision of rule 56(d) of the Fundamental Rules, the relevant portion of which is extracted below:-\n\"R. 56(d)-Notwithstanding anything contained in this rule, the appropriate authority shall if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, after he has attained the age of fifty years or after he has completed twenty five years of qualifying service. Any Government servant who has attained the age of fifty years or who has completed twenty five years of qualifying service may likewise retire from service by giving notice of not less than three months in writing to the appropriate authority.\nExplanation I: Appropriate authority means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required to retire or wants to retire.\n[Explanations II to V are omitted as they are not relevant for our purpose.]\n9.  Rule 56(d) of the Fundamental Rules confers absolute right on the appropriate authority to retire a Government servant in the public interest. Under Explanation, I \"appropriate authority\" means the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire or wants to retire. In view of Explanation I, it is manifestly clear that the absolute power to retire any Government servant has been conferred on the appropriate authority, that is, the authority which has the power to make substantive appointment to the post or service from which the Government servant is required to retire. It is not disputed that the authority to make substantive appointment to the post of Munsif or District Munsif is the Governor.\nTherefore, without anything else, under rule 56(d) of the Fundamental Rules, the State Government or the Governor being the appointing authority, has the absolute power to retire a District Munsiff.\n10.  It is not necessary to consider the provision of Art. 235 of the Constitution and its impact on rule 56(d) of the Fundamental Rules as to the absolute right of the State Government to retire a member of the subordinate judicial service. Art. 235 vests in the High Court the control over District Courts and Courts subordinate thereto. The vesting of such control is consistent with the ideal of preservation of the independence of the judiciary. The power of control comprises within it various matters in respect of subordinate judiciary including those relating to appointment, promotion and imposition of punishment, both major and minor. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Art. 235 of the Constitution.\n11.  Rule 56(d) of the Fundamental Rules under which a member of subordinate judicial service can be compulsorily retired has to be read subject to and in harmony with the power of control vested in the High Court under Art. 235 of the Constitution At this stage, it is necessary to consider the extent of the power of control of the High Court u/art. 235. In the instant cases, it has been already noticed that the High Court had held the enquiry and made the impugned orders of compulsory retirement. According to one of the learned Judges of the Division Bench of the High Court, as the impugned orders were not signed by the Governor, but by the High Court, they were illegal and should be struck down. The contention of the learned Additional Solicitor General is that if the Governor is required to sign the impugned orders, it would take away the control of the High Court as conferred on it by Art. 235.\nWe are, however, unable to accept the contention.\n12.  The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member. But passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Art. 235 of the Constitution. An action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the Government servant Under the second part, the decision will be carried out by a formal order. The power of control envisaged under Art. 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High Court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court.\n13.  In the State of West Bengal v. Nripendra Nath Bagchi, [1966] 1 SCR 771 1965 Indlaw SC 268 a question arose whether Art. 311 takes away the control of the High Court vested in it under Art. 235 of the Constitution. In that context, Hidayatullah, J. (as he then was) speaking for the Court observed as follows:\n\"There is, therefore, nothing in Art. 311 which comples the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if Art. 235 vested such a power in it. In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, to a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by cl. (2) of Art. 311 unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy which has moved determinedly in this direction.\"\n14.  Thus, it appears that this Court brought about a harmony between the power of the Governor and the power of control of the High Court.\n15.  The question was again considered by this Court in State of Haryana v. Inder Prakash Anand, [1976] Suppl. SCR 603 1976 Indlaw SC 328. In that case A.N. Ray, C.J. Observed as follows:\n\"The control vested in the High Court is that if the High Court is of opinion that a particular Judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State. \"The Government will act on the recommendation of the High Court. That is the broad basis of Article 235\".\n16.  It is apparent from the observation extracted above that this Court also understood the power of control of the High Court as the power of taking a decision against a member of the subordinate judicial service. The High Court is the only authority that can take such a decision. The High Court will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. If it comes to the conclusion that such an action is required to be taken, it will make a recommendation in that regard to the State Governor who will make an order in accordance with the recommendation of the High Court.\n17.  There can be no doubt and, indeed, it is well established that compulsory retirement of members of the subordinate judicial service comes within the purview of the power of control of the High Court under Art. 235 of the Constitution. See State of Uttar Pradesh v. Batuk Deo Pati Tripathi, [1978] 2 SCC 102 1978 Indlaw SC 141; High Court of Punjab & Haryana v. State of Haryana, [1975] 3 SCR 365 1975 Indlaw SC 422; Shamsher Singh v. State of Punjab, [1975] 1 SCR 814 1974 Indlaw SC 127; State of Haryana v. Inder Prakash Anand 1976 Indlaw SC 328 (supra) and B. Misra v. Orissa High Court, [1976] 3 SCC 327 1976 Indlaw SC 511.\n18.  The control of the High Court, as understood, will also be applicable in the case of compulsory retirement is that the High Court will, upon an enquiry, come to a conclusion whether a member of the subordinate judicial service should be retired prematurely or not. If the High Court comes to the conclusion that such a member should be prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the Governor is the appointing authority. The Governor will make a formal order of compulsory retirement in accordance with the recommendation of the High Court.\n19.  In the instant cases, admittedly, the impugned orders of compulsory retirement have been passed by the High Court under rule 56(d) of the Fundamental Rules. It has been noticed that under rule 56(d) of the Fundamental Rules right of compulsory retirement has been conferred on the appropriate authority which, under Explanation I, means the appointing authority, that is, the Governor. While the High Court decided to compulsorily retire the respondents. it did not communicate the recommendations to the State Governor for passing formal orders of compulsory retirement. Instead, the High Court passed the orders of compulsory retirement itself. As Art. 235 vests the power of control of subordinate judiciary in the High Court, the absolute right to compulsorily retire a Government servant conferred on the Governor by rule 56(d) of the Fundamental Rules must be subject to the power of control of the High Court, so far as the members of the subordinate judicial service are concerned. In other words, if the High Court considers that a member of the subordinate judicial service should be compulsorily retired, the High Court will make a recommendation in that regard to the Governor, who will make an order of compulsory retirement in accordance with the recommendation of the High Court. The Governor will only act on the basis of the recommendation and pass a formal order.\n20.  But however formal it is, the compulsory retirement of the member concerned will take effect after the order is passed by the Governor. The High Court, in the present cases, sought to derive its power to compulsorily retire the respondents from rule 56(d) of the Fundamental Rules and in exercise of its power of control it decided to compulsorily retire the respondents, but ignored the power of the Governor under rule 56(d) of the Fundamental Rules to make the order of compulsory retirement in accordance with the recommendation of the High Court. It may be that the power of the Governor under rule 56(d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court by signing an order in that regard. But however formal it may be, yet the procedure has to be complied with. So long as there is no formal order by the Governor, the compulsory retirement, as directed by the High Court, could not take effect. We are unable to accept the contention of the learned Additional Solicitor General that to send the recommendation to the Governor for the purpose of making a formal order of compulsory retirement would be in derogation of the power of control of the High Court as vested in it under Art. 235 of the Constitution. As has been discussed above, the power of control is a power to make the decision as to whether any action would be taken against a member of the subordinate judicial service and if so, what would be the nature of the action. In the case of compulsory retirement, when the High Court comes to a decision that the member should be compulsorily retired from service, its decision or recommendation has to be communicated to the Governor so that he may pass a formal order of compulsory retirement. In the instant cases, as there is no formal order by the Governor under rule 56(d) of the Fundamental Rules, the impugned orders of the High Court are ineffective. The view expressed by one of the learned Judges of the Division Bench that it was not the High Court but the Governor who had to pass formal orders of compulsory retirement, is correct. The contention made on behalf of the High Court that as rule 56(d) of the Fundamental Rules impinges upon the power of control of the High Court, as vested in it under Art. 235 of the Constitution, it should be declared ultra vires in so far as it confers power on the Governor to compulsorily retire Government servants, who, in the instant cases, are members of the subordinate judicial service, is without any substance whatsoever and is rejected.\n21.  We may now come to the merits of the case. It has been upheld by both the learned Judges of the Division Bench of the High Court that the impugned orders were not supported by any material. Further, it has been held that no material has been placed before the High Court to show that the impugned orders have been passed in public interest. This finding has not been challenged by the learned Additional Solicitor General appearing on behalf of the High Court. All that has been submitted by him is that the High Court was not justified in considering the adequacy or otherwise of the materials in support of the orders of compulsory retirement. There can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant for the purpose of compulsory retirement. But, in the instant case, there is no question of adequacy or sufficiency of the materials in support of the impugned orders of compulsory retirement. According to the High Court, no material has been placed in justification of the impugned orders of compulsory retirement of the respondents.\n22.  It is true that the High Court in its administrative jurisdiction has power to compulsorily retire a member of the judicial service in accordance with any rule framed in that regard, but in coming to the conclusion that a member of the subordinate judicial service should be compulsorily retired, such conclusion must be based on materials. If there be no material to justify the conclusion, in that case, it will be an arbitrary exercise of power by the High Court. Indeed, Art. 235 of the Constitution does not contemplate the exercise by the High Court of the power of control over subordinate courts arbitrarily, but on the basis of some materials. As there is absence of any material to justify the impugned orders of compulsory retirement, those must be held to be illegal and invalid.\n23.  In Rajiah's case, a Review Committee consisting of three Judges was appointed by a resolution of the High Court. In the meeting of the Review Committee held on June 25, 1979 to consider the case of the respondent Rajiah, only two Judges of the High Court were present. The two Judges came to the conclusion that the respondent, Rajiah, should be compulsorily retired with effect from April 2, 1980. The Division Bench found that the third Judge had no notice of the meeting held on June 25, 1979, but he agreed with the view expressed by the two Judges with a slight modification that the respondent would retire with effect from March 3, 1980 under rule 56(d) of the Fundamental Rules. The Division Bench of the High Court took the view that as all the three Judges had not sat together and considered the question of compulsory retirement of respondent Rajiah, and that, further, the third Judge having also modified the decision of the two Judges, namely, that the respondent would be compulsorily retired with effect from March 3, 1980, the impugned order of compulsory retirement of the respondent, Rajiah, was vitiated. It is true that the members of the Review Committee should sit together and consider the question of compulsory retirement, but simply because one of them did not participate in the meeting, and subsequently agreed with the view expressed by the other two Judges, it would not vitiate the decision of the Committee to compulsorily retire the respondent. The third Judge might be justified in correcting the date with effect from which the respondent would compulsorily retire, but that is a very minor issue and would not, in our opinion, make the decision invalid.\n24.  In regard to the case of the other respondent, namely, K. Rajeswaran, the High Court took the view that the Constitution of the Review Committee by the Chief Justice and not by the Full Court was illegal. We are unable to accept the view cf the High Court. We fail to understand why the Chief Justice cannot appoint a Review Committee or an Administrative Committee. But in one respect the High Court is, in our opinion, correct, namely, that the decision of the Review Committee should have been placed before a meeting of the Judges. In the case of the respondent, K. Rajeswaran, the decision and recommendation of the Review Committee was not placed before the Full Court meeting. Nor is there any material to show that the same was circulated to the Judges. In that sense, the recommendation of the Review Committee was not strictly legal.\n25.  Another fact which has been pointed out by the High Court is that although the Review Committee was constituted with two Judges, another Judge also participated in the meeting of the Review Committee and, indeed, he recorded a very elaborate minute. The Division Bench has looked into the record and found that the learned Chief Justice had appointed only two Judges to constitute the Review Committee and observed that the participation of the third Judge was improper. It is, however, not known whether he participated in the meeting of the Review Committee under the direction of the Chief Justice. We had not the opportunity of looking into the record and, as such, we do not make any final pronouncement about the same.\n26.  Another infirmity that has been pointed out by the Division Bench is of some substance. The respondent, K. Rajeswaran, was selected a District Munsif by the Public Service Commission on 29.11.1971. His probation was declared by the order of the High Court dated 15.7.1974 and on 1.1.1976 he was confirmed as a District Munsif. The Division Bench has rightly observed that it must be taken that when he was confirmed on 1.1.1976, there was nothing seriously wrong against him. In coming to a decision that the respondent should be compulsorily retired, the third Judge of the Review Committee relied upon events that had happened right from 30.3.1954. It is curious that the past events that happened in 1954 were not considered to be of any significance in appointing the respondent to the post of District Munsif, but for the purpose of compulsory retirement those events were considered to be of importance. In Baldev Raj Chadha v. Union of India, [1981] 1 SCR 430 1980 Indlaw SC 173 this Court observed as follows:\n\"One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, vital facts bearing on the decision is bad in law. Likewise, any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon, cannot be sustained.\"\n27.  The above decision has been relied upon by the Division Bench and that rightly. The decision to compulsory retire the respondent, in our opinion, is vitiated as the High Court had relied upon some adverse incidents against the respondent that took place in 1954, although the respondent was appointed to the post of District Munsif in 1976. In this regard, we may also refer to an observation by this Court in Brij Bihari Lal Agarwal v. High Court of M.P., [1981] 2 SCR 297 1980 Indlaw SC 232:\n\"It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation.\"\n28.  For the reasons aforesaid, we are of the view that the Division Bench of the High Court was perfectly justified in quashing the impugned orders of compulsory retirement.\n29.  In the result, the appeals are dismissed. There will, however, be no order as to costs.\nSHARMA, J.\n30.  I have gone through the Judgment just now delivered by Mr. Justice M.M. Dutt, and I agree that since there is no material on the records of the cases in support of the impugned orders of compulsory retirement of the two respondents-Mr. R. Rajiah and Mr. K. Rajeswaran, they were rightly quashed by the High Court. The appeals are accordingly dismissed. I am not expressing any opinion on the other questions raised in these cases.\nAppeals dismissed.\n"}
+{"id": "INM1MjeBsr", "title": "", "text": "Ramjas Foundation And Ors. v U.O.I. And Ors.\nSupreme Court of India\n\n13 November 1992\nCivil Appeal No. 2213 of 1978\nThe Judgment was delivered by : N. M. Kasliwal, J.\n1.  This appeal by the Ramjas Foundation, a society duly registered under the Societies Registration Act, 1960 and five others who are the Secretary and trustees of the Ramjas Foundation is directed against the order of the Delhi High Court dated January 31, 1978 dismissing the civil Writ Petition No.106 of 1978 in limine.\n2.  On November 13, 1959, the Chief Commissioner Delhi issued a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') Land measuring 34070 acres was notified as land likely to be acquired by the Government at the public expense for a public purpose, namely, the planned development of Delhi. The following land was excluded from the scope of the notification:\n(a) Government land and evacues land;\n(b) the land already notified, either under Section 6 of the Land Acquisition Act for any Government Scheme;\n(c) the land already notified either under Section 4 o. under Section 6 of the Land Acquisition Act, for House Building Cooperative Societies mentioned in annexure-lII;\n(d) the land under graveyards, tombs, shrines and the land attached to religious institutions and Wakf property.\n3.  The aforesaid land measuring 34070 acres included land measuring about 872 bighas, 9 biswas situated in Chowkri Mubarikabad and measuring about 730 bighas situated in Chowkri Sadhurakhurd, belonging to the Ramjas Foundation. The present appeal relates to the land situated in Chowkri Sadhurakhurd. The Ramjas Foundation on December 11, 1959 filed objections under Section 5A of the Act for the entire land situated in Mubarikabad as well as Sadhurakhurd. The Lt. Governor of Delhi subsequently issued notifications under Section 6 of the Act on 15.4.1968, 27.4.1968, 15.5.1968, 19.8.1968, 14.1.1969 and 18.1.1969. The Lt. Governor also issued notices under Sections 9 and 10 of the Act on December 27, 1972 for Sadhurakhurd land.\n4. As regards the land in Mubarikabad notification under Section 6 of the Act was issued on February 28, 1968. Ramjas Foundation filed a writ petition in may, 1968 in the Delhi High Court challenging the Action of the Government in acquiring their lands situated in Mubarikabad. In the said writ petition Sachar, J. (as he then was) who heard the petition was of the view that the matter ought to be tried in a suit instead of writ proceedings. He, therefore, by his order dated August 10, 1971 permitted the Ramjas Foundation to withdraw the petition with liberty to agitate the matter in a suit and as such the writ petition was dismissed as withdrawn.\n5. The Ramjas Foundation then filed a suit in the Delhi High Court on November 8, 1971 for quashing the notifications issued under Sections 4 and 6 of the Act in respect of the land situated in Mubarikabad. The suit was dismissed by Awadh Behari Rohtagi, J. of the Delhi High Court by order dated 21.3.1977 reported in AIR 1977 Delhi 261 1977 Indlaw DEL 66. Learned Counsel for the appellants brought to our notice that Letters Patent Appeal before the Division Bench of the High Court is pending against the aforesaid Judgment of the Learned Single Judge.\n6.  So far as the land situated in Sadhurakhurd with which we are concerned in the present appeal a Writ Petition No. 213 of 1973 was filed in the High Court and the same was dismissed as withdrawn on 30th March, 1977. Thereafter another Writ Petition No. 106 of 1978 was filed challenging the notifications issued under Sections 4, 6, 9 and 10 of the Act and the same was dismissed by the High Court by the impugned order dated January 31, 1978 in limine as already mentioned above.\n7.  We have heard Mr. Tarkunde, Learned Senior Advocate on behalf of the appellants and Mr. Tulsi, Learned Additional Solicitor General on behalf of the respondents. Learned counsel for the appellants contended that the appellants had submitted their objections under Section 5A of the Act on 11.12.1959 but the same were rejected without affording any opportunity of personal hearing. It was submitted that it was mandatory on the part of the respondents to have given an opportunity of personal hearing specially when the same was desired and a denial of such opportunity of personal hearing invalidates the notifications issued under Sections 6 and 9 of the Act. Reliance in respect of the above contention is placed on Farid Ahmed Abdul Samad & Anr. v. Municipal Corporation of the City of Ahmedabad & Anr., [19771 1 SCR 71 1976 Indlaw SC 233.\n8.  It was also contended on behalf of the appellants that the notification issued under Section 4 of the Act itself excludes the land of wakf property. It has thus been contended that so far as the land in question is concerned the same being also a wakf property as such ought to have been exempted under the notification itself. It was submitted that Ramjas Foundation is an educational charitable society which is running several schools and post graduate college in Delhi and several educational institutions are being run on the alleged acquired land itself. As an alternative argument it was submitted that in case this Hon'ble Court takes the view that wakf property mentioned in the alleged notification does not include the educational and charitable institutions run by Hindus or non-Muslims then such notification is void for violation of Art. 14 of the Constitution.\n9.  As regards the objection of the violation of the mandatory provisions of Section 5A of the Act\n10. The Additional Solicitor General during the course of the hearing of the matter placed an order of the Land Acquisition Collector, Delhi dated 23.2.1968 which has been taken on record and for the purposes of identification has been marked as Annexure 'X'. A copy of the said Annexure 'X' was also given to the Learned counsel for the appellants. A perusal of the aforesaid order dated 22.3.1968 clearly shows that the Ramjas Foundation Society was represented through Sh. Ratan Lal Gupta, Advocate who was given a personal hearing. From a perusal of the aforesaid document Annexure 'X' dated 23.2.1968 it is clear that full opportunity of hearing through counsel was afforded to the Ramjas Foundation. It has been further mentioned in this order that the Ramjas Foundation Society was also allowed to file fresh objections if so desired, but Sh. Ratan Lal Gupta, Learned Advocate for the Petitioner society declined and stated that there was nothing more to add in the previous objection petition. After bringing the said document Annexure 'X' to the notice of the Learned counsel for the appellants, no satisfactory explanation or argument came forward on behalf of the appellants.\n11. The conduct of the appellants in raising the plea that no opportunity of personal hearing was given to the appellants in respect of the objections filed under Section 5A of the Act was totally baseless and factually incorrect and such conduct is reprehensible. lt is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under Art. 226 of the Constitution is required to come with clean hands and should not conceal the material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the Special Leave Petition filed before this Court and ought we know if such ground had not been taken this Court would have entertained this appeal or not. The appellants have taken the advantage of obtaining the stay order also from this Court which is continuing for the last 14 years as the Special Leave Petition was filed in 1978 itself.\n12.  It may be further noted that a common objection petition under Section 5A of the Act in respect of both the lands situated in Mubarikabad as well as in Sadhurakhurd was filed on 11.12.1959 through Sh. Ratan lal Gupta, Advocate. The said objections were heard in the presence of Shri Ratan Lal Gupta, Advocate and disposed of by one common order Annexure 'X' and we cannot believe an ipse dixit explanation made orally during the course of arguments on behalf of the appellants that they had no knowledge of any personal hearing being given to Shri Ratan Lal Gupta, Advocate. It is also important to note that no such objection was taken in respect of land in Mubarikabad.\n13.  Another ground on which the present appeal has been contested is the ground of delay, laches and acquiescence in filing the writ petition challenging the acquisition proceedings. As already mentioned above a common notification was issued under Section 4 of the Act for an area of 34070 acres of land needed for planned development of Delhi. Between 1959 and 1961, about, six thousand objections were filed under Section 5A of the Act. The objections were overruled. On March 18, 1966, the declaration under Section 6 of the Act was published in respect of a portion of the area. Thereafter, in 1970 notices were issued under Section 9(1) of the Act and some of the persons who had received such notices challenged the validity of acquisition proceedings by filing writ petitions before the High Court of Delhi. The High Court negatived all the contentions raised in those cases and dismissed the writ petitions.\n14. Thereafter appeals by grant of special leave against the judgment of the Delhi High Court as well as writ petitions filed directly under Art. 32 of the Constitution were heard and disposed of by this Court by a common Judgment reported in Aflatoon & Ors. v. Lt. Governor Delhi & Ors., [1975] 1 SCR 802 1974 Indlaw SC 256. In the aforesaid case a Constitution Bench of this Court held that in the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with regard to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular purpose for which each and every item of land comprised in the area is needed.\n15.  It was further held in the above case that about six thousand objections were filed under Section 5A by persons interested in the property. Several writ petitions were also filed in 1966 and 1967 challenging the validity of the acquisition proceedings. The Government had necessarily to wait for the disposal of the objections and petitions before proceeding further in the matter. The High Court was of the view that there was no inordinate delay on the part of the Government in completing the acquisition proceedings. The conclusion of the High Court was held to be correct.\n16. It was also held in the above case that the writ petitions were liable to be dismissed on the grounds of laches and delay on the part of the petitioners. In the above case this Court had found that the appellants of that case had not moved in the matter even after the declaration under Section 6 was published in 1966. They approached the High Court with their writ petitions only in 1970 when the notices under Section 9 were issued to them. This Court then observed as under:\n\"There was apparently no reason why the writ petitions should have waited till 1972 to come to this Court for challenging the validity of the notification issued in 1959 on the ground that the particulars of the public purpose were not specified. A valid notification under Section 4 is sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when tile notification was published would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners\".\n17.  The delay and laches in the case before us are even worse than those in the above cited Aflatoon's case 1974 Indlaw SC 256. The appellants had initially filed a writ petition No. 213/73 challenging the notification dated 13.11.1959 under Section 4 of the Act and notification dated 27.4.1968 under Section 6 of the Act with respect to 245 bighas and 1 biswas of land situated in the revenue estate of Sadhurakhurd and the notices dated 27.12.1972 under Sections 9 and 10 of the Act issued by the Land Acquisition Collector, Delhi with respect to Khasra No. 1040/353 (12 bighas and 8 biswas). On 30.3.1977 Shri M.C. Gupta, Learned counsel for the Ramjas Foundation stated that he had instructions from his clients to state that they did not want to press the petition and wish to withdraw it. The statement of Sh. Gupta had been separately recorded. The Court, in these circumstances permitted to withdraw the petition and dismissed the same as withdrawn. lt is important to note that in the statement Sh. M.C.Gupta, Learned counsel for the petitioners stated as under:\n\"I may be permitted to withdraw this petition in view of the Judgment delivered by Hon. Mr. Justice Awadh Behari in Suit 451 of 1971 decided on 21st March, 1977, between the parties, wherein the contentions urged were precisely the same as urged in this petition, my clients reserved the opportunity to file a fresh suit if so necessitated by the circumstances in future.\"\n18.  It may be noted that the reference with regard to suit No. 451 of 1971 decided on 21st March, 1977 is in respect of the land of petitioners situated in Mubarikabad. It is surprising that though the opportunity was sought for filing a fresh suit, the appellants again filed a writ petition No. 106 of 1978 in the High Court on 7.1.1978 which was ultimately dismissed by the High Court in limine on 31st January, 1978 by a Division Bench comprising of T.P.S. Chawla and Awadh Behari, JJ. In this writ petition No. 106 of 1978 the appellants conveniently omitted to mention that the permission to withdraw the petition No. 213 of 1973 was granted on the statement of Sh. M.C. Gupta that his clients reserved the liberty to file a fresh suit and not writ. Thus no liberty was sought or given for filing a fresh writ petition. In any case there were no fresh ground or circumstances available to the appellants to file a fresh writ petition No. 106 of 1978 on 7.1.1978 on identical grounds when the earlier writ petition No. 213 of 1973 had been dismissed as withdrawn on 30.3.1977. Nothing had happened between 30.3.1977 and 7.1.1978 for giving a fresh cause of action to the appellants to file the writ petition No. 106 of 1978. Awadh Behari, J. had dismissed the suit No. 451 of 1971 by order dated 21.3.1977 in regard to the lands in Mubarikabad and he was also one of the Judges of the Division Bench who passed the impugned order dated January 31, 1978 dismissing the writ petition in limine as he was fully aware of the entire background of this litigation.\n19. The appellants are themselves responsible for creating confusion in initiating separate proceedings at different period of time in respect of the lands situated in Mubarikabad and Sadhurakhurd though challenge to the acquisition proceedings was on common grounds. Learned counsel for the appellants was unable to satisfy in respect of such conduct of hide and seek on the part of the appellants. In case, as sought to be explained by Mr. Tarkunde, Learned Senior Counsel for the appellants, the appellants were depending on the result of the civil suit filed in respect of the lands situated in Mubarikabad there was no justification for filing the writ petition No. 213 of 1973 in respect of the land situated in Sadhurakhurd as the suit was not decided in 1973 but was in fact dismissed on 21.3.1977. We find no justification for filing the writ petition in respect of the land situated in Sadhurakhurd in 1973 and subsequently withdrawing the writ petition on 30th March, 1977 reserving the liberty to file a fresh suit but thereafter again filing the writ petition on 7.1.1978 instead of suit.\n20.  Independently, of all the circumstances mentioned above, we shall now consider the question of delay and laches in filing the writ petition No. 106 of 1978 and the earlier writ petition No. 213 of 1973 relating to lands in Sadhurakhurd. Mr. Tarkunde, Learned Senior Counsel vehemently contended that there is no limitation prescribed for filing the writ petition and the question of delay and laches has to be examined independently in the facts and circumstances of each case.\n21. He has argued that the appellants are continuing in possession uptil date and though challenge has been made to the validity of notifications issued under Section 4 in 1959, Section 6 in 1968 and 1969 and Section 9 and 10 in 19722, there is no delay, since no award has been passed so far and no loss has occasioned to the respondents due to lapse of time. It has been submitted that there was no change of circumstances during the intervening period and the delay had been fully explained on the aforesaid grounds. It has also been argued that notifications under Sections 9 and 10 were issued in 1972 and soon there after the appellants came forward with a writ petition No. 213 of 1973 challenging the notifications issued under Sections 4, 6, 9 and 10 of the Act. We find no force at all in the above contentions.\n22.  It is an admitted fact that notification under Section 4 of the Act was issued as early as 1959 and all the notifications under Section 6 of the Act in relation to the land of the appellants in Sadhurakhurd were issued in 1968 and 1969. The challenge to the acquisition proceedings was mainly based on the ground that in the notification dated 13.11.1959 issued under Section 4 of the Act the lands of wakf property were excluded and the lands of the appellants being also used for educational and charitable purposes the same were also liable to be excluded.\n23. At a later stage a ground was also taken that if wakf property in the aforesaid notification under Section 4 of the Act meant only wakf properties of the Mohammedans, then such notification was discriminatory and violative under Art. 14 of the (Constitution as there was no reasonable ground to discriminate such properties of Hindus or non-Muslims also meant for charitable purposes. So far as the notifications under Section 6 of the Act are concerned the same were attacked on the ground that no opportunity of personal hearing was given to hear the objections filed under Section 5A of the Act. Thus it is abundantly clear that the challenge was in respect of notifications under Sections 4 and 6 of the Act alone and though in the prayer clause relief had been sought to quash the notification under Sections 9 and 10 of the Act also which were issued in 1972 but no ground whatsoever has been pleaded in the writ petition nor raised before us as to how the notifications under Sections 9 and 10 had any concern for explaining the delay in respect of the challenge to notifications under Sections 4 and 6 of the Act.\n24. It is worthwhile to note that according to the appellants own showing the notices under Sections 9 and 10 issued to the appellants in 1972 were in respect of the land being Khasra No. 1040/353 which related to 12 bighas and 8 biswas only. The challenge on the other hand in the writ petition is in respect of notifications under Sections 4 and 6 covering the entire land measuring about 730 bighas situate in village Sadhurakhurd. We find no justification at all in explaining the delay on the ground that no award has been passed nor the appellants have been dispossessed so far.\n25. This cannot be an explanation for not challenging the notifications under Sections 4 and 6 of the 9Act and in the present case the appellants had themselves sought stay from this Court as early as 15.11.1978 for not making and declaring the award and not to dispossess the appellants. Thus we find no justification at all for the delay in not challenging the notification issued under Section 4 on 13.11.1959 till 1973. Even notifications under Section 6 of the Act were issued in 1968 and 1969 but not challenged till 1973. As already mentioned above in Aflatoon's case 1974 Indlaw SC 256 (supra) a Constitution Bench of this Court has clearly held that even after the declaration under Section 6 of the Act published in 1966, the appellants had approached with their writ petitions in 1970 when the notices under Section 9 were issued to them the writ petitions were liable to be dismissed on the grounds of laches and delay. Mr. Tarkunde, learned senior counsel made strenuous effort to distinguish the aforesaid case on the ground that in the aforesaid case the Court was influenced with the fact that the petitioners had sat on the fence and allowed the Government to complete (emphasis added) the acquisition proceedings.\n26. Much emphasis has been laid on the word 'to complete' the acquisition proceedings. We find no force in this submission as the facts narrated in the above case clearly shows that the petitioners in those cases had filed writ petitions in the High Court in 1970 and in the Supreme Court in 1972 after the issuance of notices under Sections 4, 6 and 9 of the Act. The use of the word complete' was not of much significance and the main reasoning of the case was that grounds to attack the notification under Sections 4 and 6 of the Act were available at the time of publication of such notifications. In the facts and circumstances of the case before us the appellants were also sitting on the fence and did not take any steps of challenging the notification under Sections 4 and 6 of the Act till 1973 though the grounds now sought to be urged were available to the appellants as soon as such notifications were issued.\n27. Thus viewing the matter from any angle we are clearly of the view that the writ petition was also liable to be dismissed on the ground of laches and delay on the part of the appellants apart from other grounds already dealt by us. In the face of the aforesaid view taken by us, it is not necessary at all to go on other questions raised in the case. We decline to express any opinion on any questions of law raised in the appeal.\n28.  In the result we dismiss this appeal with costs. In view of the dismissal of the appeal itself all interim orders stand vacated automatically.\nAppeal dismissed\n"}
+{"id": "nuVxUZpfbH", "title": "", "text": "State of Bihar and Another v Ranchi Zila Samta Party and Anr\nSupreme Court of India\n\n19 March 1996\nCivil Appeal No. 5177 of 1996 [Arising out-SLP [C] 5841-44 and 5845-46 of 1996]\nThe Order of the Court was as follows :\n1.  Leave granted.\n2.  Heard learned counsel on both sides.\n3.  These appeals by special leave arise from the Judgment dated March 11, 1996 of the Division Bench of the Patna High Court in CWJC No.459 of 1996 and batch. It is not necessary to narrate all the facts stated in the impugned judgment of the High Court. Suffice it to state that a large-scale defalcation of public funds, fraudulent transactions and falsification of accounts, to the tune of around Rs. 500 crores, came to light in the Animal Husbandry Department of the State of Bihar. This had taken place during the years 1977-78 to 1995-96. A similar situation prevailed in the Education, Cooperation and Fisheries Departments. It is agreed by all the counsel that an in-depth investigation is required to be made. The only controversy between counsel on either side is whether the High Court, in exercise of its power under Article 226, could take the investigation away from the State police and entrust lt to the Central Bureau of Investigation [CBI].\n4.  Shri F.S. Nariman, learned senior counsel appearing for the State, contended that, by reason of Entry 80 of List I of the Seventh Schedule to the Constitution and Section 6 of the Delhi Special Police Act, 1946 [Act 26 of 1946], without the consent of the appropriate State Government no investigating agency other than the State police could investigate an offence committed in the State. The High Court, while exercising power under Article 22, should have kept in mind this limitation. The limitation did not apply to this Court exercising power under Article 142 of the Constitution to do complete justice. The High Court therefore, was not correct in law in directing the CBI to investigate the allegations of defalcation of public funds, large-scale misappropriation, fabrication and destruction of the record etc. Shri P P. Rao, learned senior counsel, contended that the State Government had not delayed in instituting the investigation. As soon as the matter was brought to the knowledge of the Chief Minister, he took prompt action, suspended the erring officers and constituted an Enquiry to submit periodical reports. The state, Mr. Rao submitted, would not attempt to shield any corrupt officer from being prosecuted or proceeded with departmentally. The prompt action taken established the sincerity of the State Government to see that proper investigation was carried out.\n5. There was no allegation against the State police. The High Court could have preserved control and supervised the investigation by the State police. Instead, it divested the State police of its statutory power and entrusted the case to the CBI, which upset the distribution of powers under the Constitution. Shri Soli J. Sorabjee, learned senior counsel, supporting all the contention, submitted that the power was traceable to Entry 39 of the Government of India Act, 1935. the State police could not be divested of the power. The investigation by the Central agency could not have been ordered by the High Court without the consent of the State Government.\n6.  On the other hand, Shri Shanti Bhushan, learned senior counsel leading for the respondents, contended that the power of the High Court was unlimited There were selfimposed limitations on the exercise or that power. in view of the enormity fraudulent transactions that had taken placed within the administration of the State, they needed to be investigated and the erring officers brought to book by an independent agency. The people's confidence would be best assured if the investigation was conducted by an independent agency.There was no reason for the CBI to either falsely implicate any innocent person or shield any real culprit. Therefore, in a democratic set up when a cloud was cast on the administration it would be appropriate for an independent agency to conduct the investigation. The High Court, therefore, in exercise of its discretionary power under Article 226 had rightly directed the CBI to investigate these fraudulent transactions involving more than Rs.500 crores an estimate given by the State itself. Shri Arun jaitley, learned senior counsel, criticized the inaction on the part of the State police in investigation and laying charge-sheets against erring officers on the basis of the evidence on record despite the Income-tax Department's information in this behalf through the State's vigilance Commission. Shri Rajeev Dhavan learned senior counsel, supported the judgment on the argument of public confidence and Shri O.P. Sharma learned senior counsel, echoed it.\n7.  In view of the contentions, the question that arises for consideration is whether this Court would be justified in interfering with the order passed by the High Court. The parameters of the power of the High Court under Article 226 of the Constitution to direct an investigation by the CBI, though without the consent of the concerned State, is the subject matter of a reference pending consideration of a Constitution Bench of five Judges of this Court. [This is in w.p.Nos.531-36 of 1985 by order dated March 10, 1989.] Therefore, the frontiers of the power of the High Court under Article 226 to give directions to the CBI to investigate into offences without the State's consent, are already before this Court and shall be gone into. All arguments addressed by learned counsel on either side would be considered and dealt with by the Constitution Bench.\n8.  The only question then is whether this is a fit case for our interference under Article 136 of the Constitution? The exercise of the power under Article 226 of the Constitution in a public interest litigation was not to give any advantage to a political party or group of people, as apprehended by counsel for the appellants. It was also not to cast a slur on the State police. It was done to investigate corruption in public administration, misconduct by the bureaucracy, fabrication of official records, and misappropriation of public funds by an independent agency that would command public confidence. We are, therefore, of the opinion that the direction given by the High Court appears to be just and proper and calls for no real interference.\n9.  The question then is whether the direction given by the High Court needs any modification. It is pointed out by Shri Nariman that the State police have already instituted 40 First Information Reports against different persons, arrested 44 offenders and attached the properties of 239 perhaps. There is no gainsaying that all persons involved in these offences need tc be identified. Not only all the aforementioned persons but also all other persons involved need to be dealt with according to law. This modification shall be made.\n10.  We are also of the opinion that, to alleviate the apprehensions of the State about the control of the investigation by the CBI, it should be under the overall control and supervision of the Chief Justice of the Patna High Court. The CBI officers entrusted with the investigation shall, apart from the concerned criminal court, inform the Chief Justice of the Patna High Court from time to time of the progress made in the investigation and may, if they need any directions in the matter of conductions the investigation, obtain them from him. The learned Chief Justice may either post the matter for directions before a Bench presided over by him or constitute any other appropriate Bench. After the investigation is over and reports are finalized, as indicated by the Division Bench of the High Court in the impugned judgment, expeditious follow-up action shall be taken. The High Court and the State Government shall co-operate in assigning adequate number of special Judges to deal with the cases expeditiously so that no evidence may be lost.\n11.  The order of the Division Bench of the high Court in paragraph 54, to the effect that investigation by the State police in cases already instituted shall remain suspended, is modified. The entire investigation now stands entrusted to the CBI as aforesaid. The CBI is directed to take over the investigation already made by the State police, inclusive Of the FIRs, arrests and attachments aforementioned, and deal appropriately therewith.\n12.  The appeals are disposed of accordingly. No costs.\nAppeal disposed of\n"}
+{"id": "BaepZITGgr", "title": "", "text": "Kazilhendup Dorji v Central Bureau Of Investigation\nSupreme Court of India\n\n29 March 1994\nW.P. (Civil) NO. 313 of 1993\nThe Judgment was delivered by : S. C. Agrawal, J.\n1. This writ petition filed u/art. 32 of the Constitution raises the question whether it is permissible to withdraw the consent given by the State Government u/s. 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as the 'Act') whereby a member of the Delhi Special Police Establishment (DSPE) was enabled to exercise powers and jurisdiction for the investigation of the specified offences in any area in the State and, if so, what is the effect of such withdrawal of consent on matters pending investigation on the basis of such consent on the date of withdrawal.\n2. The Act was enacted to make provision for the Constitution of a special police force in Delhi for the investigation of certain offences in the Union Territories, for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. DSPE constituted under the said Act is now known as the Central Bureau of Investigation (CBI). Ss. 5 and 6 of the Act read as under:\n\"5. (1) The Central Government may by order extend to any area (including Railway areas) in a State, not being a Union Territory the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification u/s. 3.\n(2)When by an order under sub-s. (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.\n(3)Where any such order under sub-s. (1) is made in relation to any area, then, without prejudice to the provisions of sub- section (2), any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer-in- charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station.\nNothing contained in S. 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State.\"\n3. By his letter dated 20-10-1976, addressed to the Deputy Secretary to the Government of India, Department of Personnel and Administrative Reforms, the Chief Secretary to the Government of Sikkim conveyed the consent of the Government of Sikkim u/s. 6 of the Act to the members of the DSPE in exercising powers and jurisdiction on the whole of the State of Sikkim for the investigation of the offences punishable under various provisions of the Indian Penal Code specified therein as well as offences under the Prevention of Corruption Act, 1947. Similar consent in respect of offences under other enactments was conveyed by letter of the Chief Secretary, Government of Sikkim, dated 10-7-1979 and the orders of the Government of Sikkim dated 24-12-1983, 28-6-1984 and 10-12-1984.\n4. Respondent 4 was the Chief Minister of Sikkim during the period 1979 to 1984. He ceased to be the Chief Minister on 11-5-1984. On 26-5-1984, a case [RC.5/84-CIU(A)] was registered by the CBI for offences punishable u/s. 5(2) read with S. 5(1)(e) of the Prevention of Corruption Act, 1947. The allegations, in brief, were that Respondent 4, while Acting as the Chief Minister of the State of Sikkim and thus being a public servant, had acquired assets disproportionate to his known sources of income. On 7-8-1984, another case [RC.8/84-CIU(A)] was registered by CBI for offences punishable under Section 120- B IPC and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act, 1947, against Respondent 4 and others. The allegations, in brief, were that Respondent 4 and Shri P.K. Pradhan, the then Secretary Rural Development Department, Government of Sikkim, by corrupt or illegal means or by otherwise abusing their position as public servants in conspiracy with other persons caused pecuniary advantage to the private parties and the corresponding loss to the Government of Sikkim and further that these persons entered into a criminal conspiracy with other private persons and awarded contracts to the tune of Rs 1,62,31,630 to the private parties for implementing Rural Water Supply Scheme under the Minimum Needs Programme during 1983-84 on higher rates and had ignored the recommendations of the concerned Rural Development Department officials on this point. After registering these two cases CBI started investigation and while the matters were under investigation Respondent 4 again became the Chief Minister of Sikkim in March 1985. By notification dated 7-1-1987, when Respondent 4 was the Chief Minister of Sikkim, it was notified that all consents of or on behalf of the State Government under letters dated 20-10-1976 and 10-7-1979 and orders dated 24-12-1983, 28-6-1984 and 10-12- 1984 for investigation of offences by CBI u/s. 6 of the Act, are withdrawn and stand cancelled with immediate effect. In spite of requests made by officials of the Government of India in their letters dated 17-10-1988, 12-12-1988 and 10-2-1989 and the Ministers of State in the Ministry of Personnel, Public Grievances and Pensions in letters dated 9-3-1989 and 16-9-1992, the Government of Sikkim did not agree to permit investigation by CBI in respect of cases under the Prevention of Corruption Act and declined to give consent for such investigation. As a consequence of the notification dated 7-1-1987, CBI suspended further action in the aforementioned two cases registered against Respondent 4. The petitioner, who happens to be a former Chief Minister of Sikkim, has filed this writ petition, by way of public interest litigation, wherein he has sought various reliefs including the quashing of the notification dated 7-1-1987. The petitioner has submitted that there is no provision under the Act which empowers the State Government to withdraw the consent which has been accorded and that impugned notification dated 7-1-1987, withdrawing the consent is in violation of the provisions of the Act.\n5. In the counter-affidavit of Shri Parag Prakash, Deputy Secretary to Government of India, Ministry of Personnel, Public Grievances and Pensions, filed on behalf of Respondent 2, Union of India, it has been stated that after due investigation in case No. RC.5/84-CIU(A) the CBI had come to the conclusion that Respondent 4 had acquired assets worth Rs 16,49,434 which were disproportionate to his known sources of income and that a prima facie case for offences punishable u/ss. 5(2) read with S. 5(1)(e) of the Prevention of Corruption Act was made out against him and that similarly after investigation of case No. RC.8/84- CIU(A) the CBI had come to the conclusion that a prima facie case for the offences punishable under Section 120-B IPC and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act was made out against Respondent 4 and Shri P.K. Pradhan, the then Secretary Rural Development Department, Government of Sikkim, and fifteen others for having caused pecuniary advantage to the private parties to the tune of Rs 3,07,230. It has been further stated in the said affidavit that before the CBI could file charge-sheet as provided u/s. 173 CrPC in either of the aforesaid two cases in the court of law, the State of Sikkim, by its notification dated 7-1-1987, withdrew the consent earlier accorded by it to the members of the Special Police Establishment for investigation of offences in the State of Sikkim as provided u/s. 6 of the Act and that in spite of various communications sent by Government of India to the Government of Sikkim requesting for restoration of the consent u/s. 6 of the Act, the State Government had declined to give consent as requested. It has been further stated in the said affidavit that the withdrawal of the consent by the State Government through notification dated 7-1-1987, has caused grave injustice to the investigation of the aforesaid two cases registered by CBI because for want of said consent the reports u/s. 173 CrPC could not be filed in the court of law. It has also been stated that the law, once set in motion by registering criminal cases, ought not be permitted to be stalled and the case must be allowed to reach its logical conclusion and that criminal justice requires that the investigating agency should be allowed to bring the result of investigation to the court of law by filing reports u/s. 173 CrPC as required under law, notwithstanding the withdrawal of consent during pendency of investigation. It is also stated in the said affidavit that notification dated 7-1-1987, through which the consent was withdrawn, is prejudicial to the fair and free investigation by CBI and thus illegal and not tenable under the law and further that there is no provision in law for withdrawal of consent once accorded and that, in any case, in respect of cases already taken up for investigation or trial on the basis of a valid consent legally accorded by the State Government, there is no scope of withdrawing it in between and that notification dated 7-1-1987, deserves to be quashed in totality and certainly in respect of the cases already taken taken up for investigation by CBI.\n6. A counter-affidavit has been filed by Shri K.A. Varadan, Chief Secretary, State of Sikkim, on behalf of Respondent 3, the State of Sikkim, but the said affidavit is confined to the question whether a meeting of the Cabinet was held on 19-5-1984 wherein, as asserted in the writ petition by the petitioner, it was decided that since Respondent 4 had acquired assets by illegal means the Central Government be requested to require CBI to institute complaints/file case against Respondent 4. In the said affidavit no reference has been made to the order dated 7-1-1987, whereby the consent granted u/s. 6 of the Act was withdrawn as well as the legality of the said action.\n7. Respondent 4 has also filed a counter-affidavit wherein he has alleged that the writ petition was politically motivated and further that the registration of cases by CBI against him was vitiated by mala fides and is part of a campaign of character assassination against him. In his counter-affidavit Respondent 4 has disputed that a meeting of the Cabinet was held on 19-5-1984, or a decision was taken empowering CBI to investigate the allegations of corruption against Respondent 4 and that the sanction to investigate offences by CBI u/s. 6 of the Act was illegally granted which had been properly withdrawn. Along with the said counter-affidavit Respondent 4 has placed on record (as Annexure VI) the notings in the file containing the opinions of the then Advocate General as well as the Chairman of the State Law Commission expressing the view that the consent given u/s. 6 could be rescinded u/s. 21 of the General Clauses Act, 1897.\n8. S. 21 of the General Clauses Act, 1897 is in following terms:\n\"21. Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions if any to add to, amend, vary or rescind any notifications, orders, rule or bye-laws so issued.\"\n9. Shri Ram Jethmalani, the learned Senior Counsel appearing for the petitioner, has urged that S. 21 of the General Clauses Act has no application to a consent given u/s. 6 of the Act inasmuch as S. 21 of the General Clauses Act postulates conferment of the power to issue notifications, orders, rules, or bye-laws by any Central Act or Regulation and that S. 6 of the Act does not confer a power to issue a notification or order and that the consent given u/s. 6 cannot be regarded as a notification or order. In this context, Shri Jethmalani has contrasted the provisions of S. 6 with S. 3 of the Act which prescribes that the \"the Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment\". Shri Jethmalani has pointed out that the original consent dated 20-10-1976, was contained in the letter of the Chief Secretary and was not in the form of a notification and so also was the consent contained in the letter dated 10-7-1979. Shri Jethmalani has also contended that even if S. 21 of the General Clauses Act is held to be applicable so as to permit withdrawal of consent given under Section 6, such withdrawal of consent cannot be related to an investigation which has started on the basis of consent granted earlier and that once the investigation has started Chapter XII of CrPC comes into play and the statutory powers vested in the CBI under the provisions of the Code have to be exercised and the exercise of said powers is not affected by a subsequent withdrawal of the consent. Shri Jethmalani has further contended that since the impugned notification for withdrawal of the consent was one in which Respondent 4 had a vital interest, the decision for such withdrawal should have been taken by the Governor in exercise of his personal discretion and not on the advice of the Council of Ministers and that in the present case the impugned notification was issued on the basis of advice of the Council of Ministers headed by Respondent 4, who was the Chief Minister at that time.\n10. The learned Additional Solicitor General, appearing for Respondents I and 2, has also assailed the validity of the impugned notification and has urged that no action of any authority can be permitted to impede the course of criminal justice and that but for the impugned notification withdrawing the consent the CBI would have discharged its statutory obligations in the matter of investigation and prosecution of the accused persons.\n11. Shri Hegde, the learned Senior Counsel appearing for the State of Sikkim,has assailed the validity of S. 6 of the Act on the ground that DSPE isa police force of the Union Territory and Parliament does not have the legislative competence to make a law providing for extension of powers and jurisdiction of members of a police force belonging to a Union Territory to any area outside the Union Territory.\n12. Shri Parasaran, the learned Senior Counsel appearing for Respondent 4, has submitted that the writ petition is an abuse of the process of the court inasmuch as it is politically motivated and, in this context, he has invited our attention to the order passed by this Court on 5-5-1993, wherein it has been stated:\n\" Shri Jain strongly urged that the petitioner who was instrumental in the admission of Sikkim as a State in the Indian Union, is greatly exercised and troubled over the inaction of the CBI in investigating into certain charges against Respondent 4. It would appear that in 1987 there was a purported revocation of the sanction. If the revocation is valid, we are afraid, re-agitation of the matter at this distance of time by the petitioner would not be proper and would earn the criticism of amounting to an abuse of the process. But, Shri Jain would say that there is no power of revocation and the CBI must proceed on the assumption that none exists.\"\n13. Shri Parasaran has also urged that there is inordinate delay in filing of the writ petition inasmuch as the FIR was registered as far back as in 1984 and the notification withdrawing the consent was issued in 1987 but the writ petition was filed in 1993, nearly six years after the passing of the impugned notification.\n14. The contention urged by Shri Hegde about the legislative competence of Parliament to enact Ss. 5 and 6 of the Act stands concluded by the decision of the Constitution Bench of this Court in Advance Insurance Co. Ltd. v. Gurudasmal (1970) 1 SCC 633 : (1970) 3 SCR 881 1970 Indlaw SC 91 wherein the expression \"State\" in Entry 80 of List 1 in the Seventh Schedule to the Constitution has been construed to include \"Union Territory\" in view of the definition of \"State\" contained in S. 3(58) of the General Clauses Act and it has been held that members of police force belonging to the Union Territory can have their powers and jurisdiction extended to another State provided the Government of that State consents.\n15. The submission of Shri Parasaran that the filing of the writ petition amounts to abuse of the process of court also does not merit acceptance. The counter-affidavit filed on behalf of Respondent 2, Union of India, shows that after due investigation of both the cases it has been found that prima facie case for offences u/s. 5(2) read with S. 5(1)(e) of the Prevention of Corruption Act, 1947 and offences under Section 120-B read with S. 5(2) and S. 5(1)(d) is made out and that if the impugned notification had not been issued the charge-sheet u/s. 173 CrPC would have been filed by CBI. In these circumstances, merely because the petitioner happens to be a political rival of Respondent 4 it cannot be said that filing of this writ petition amounts to abuse of process of the court. The order of this Court dated 5-5-1993, only means that if the revocation is found to be valid re- agitation of the matter at this distance of time by the petitioner would not be proper and would earn the criticism of amounting to an abuse of the process. By the same order the Court after noticing the contention of Shri R.K. Jain that there was no power of revocation and that CBI must proceed on the assumption that none exists, decided to issue notice to CBI in the first instance and on 1-10-1993, after examining the affidavit filed by Shri Ram Deo Pandey, Superintendent of Police, CBI, directed that notice be issued to other respondents. The order of this Court dated 5-5-1993, therefore, does not lend support to the contention that the filing of the writ petition amounts to abuse of the process.\n16. As regards delay in filing of writ petition we find that after the issuance of the impugned notification in 1987, efforts were made by the Central Government during the period from 1988 to 1992 to persuade the Government of Sikkim to accord the necessary consent and when the said attempts failed, the petitioner moved this Court in 1993. Having regard to the seriousness of the allegations of corruption that have been made against a person holding the high public office of Chief Minister in the State which have cast a cloud on his integrity, it is of utmost importance that the truth of these allegations is judicially determined. Such a course would subserve public interest and public morality because the Chief Minister of a State should not function under a 1 cloud. It would also be in the interest of Respondent 4 to have his honour vindicated by establishing that the allegations are not true. The cause of justice would, therefore, be better served by permitting the petitioner to agitate the issues raised by him in the writ petition than by non-suiting him on the ground of laches.\n17. Coming to the contention urged by Shri Jethmalani on merits it may be mentioned that S. 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation. [See Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers' Union 1952 Indlaw SC 80 .] Therefore, even if we proceed on the basis that S. 21 of the General Clauses Act is applicable to an order passed u/s. 6 of the Act, an order revoking an order giving consent u/s. 6 of the Act can have only prospective operation and would not affect matters in which Action has been initiated prior to the issuance of the order of revocation. The impugned notification dated 7-1-1987, has to be construed in this light. If thus construed it would mean that investigation which was commenced by CBI prior to withdrawal of consent under the impugned notification dated 7-1-1987, had to be completed and it was not affected by the said withdrawal of consent. In other words, the CBI was competent to complete the investigation in the cases registered by it against Respondent 4 and other persons and submit the report u/s. 173 CrPC in the competent court. On that view of the matter, it is not necessary to go into the question whether the provisions of S. 21 of the General Clauses Act can be invoked in relation to consent given u/s. 6 of the Act.\n18. The writ petition is, therefore, allowed and it is declared that the notification dated 7-1-1987, withdrawing the consent given by the Government of Sikkim under letters dated October 20, 1976, and 10-7-1979 and orders dated 24-12-1983, 28-6-1984, and 10-12-1984, u/s. 6 of the Act, operates only prospectively and the said withdrawal would not apply to cases which were pending investigation on the date of issuance of the said notification. The notification dated 7-1-1987, does not preclude the CBI from submitting the report in the competent court u/s. 173 CrPC on the basis of the investigation conducted by it in RC.5/84-CIU(A) and RC.8/84-CIU(A).\nNo order as to costs.\n"}
+{"id": "QsKDGAUuRq", "title": "", "text": "Dattaraj Nathuji Thaware v State of Maharashtra and others\nSupreme Court of India\n\n14 December 2004\nS.L.P. (C) No. 26269 of 2004\nThe Judgment was delivered by : Hon'ble Justice Arijit Pasayat\n1. This case is a sad reflection on members of the legal profession and is almost a black spot on the noble profession. The petitioner who belongs to this profession filed a petition styled as \"Public Interest Litigation\" before the Nagpur Bench of the Bombay High Court. By the impugned judgment, the High Court dismissed it holding that there was no public interest involved and in fact the petitioner had resorted to black mailing respondent nos. 6 and 7 and was caught red handed accepting \"black mailing\" money. The High Court also noticed that the allegations of unauthorized constructions made in the petition were also not true.\n2. Cost of Rs.25,000/- (Rupees twenty five thousand only) which was levied, was directed to be paid to the affected respondent nos. 6 and 7 before the High Court.\n3. It is in fact, a black day for the black robed professionals, if the allegation, as found by the High Court to be true and which presently appear to be the subject matter of further proceedings in a criminal case, are true. This will leave the members of the legal profession black faced for the black deed of the petitioner who may be as the High Court found a black sheep in the profession. Though the petition filed by the petitioner carried the attractive brand name of \"Public Interest Litigation\", the least that can be said is that it smacks of every thing what the Public Interest Litigation should not be.\n4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out. Before we grapple with the issue involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be \"publicity interest litigation\" or \"private interest litigation\" or \"politics interest litigation\" or the latest trend \"paise income litigation\". The High Court has found that the case at hand belongs to the last category. If not properly regulated and abuse averted, it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in The Janta Dal v. H.S. Chowdhary (1992 (4) SCC 305 1992 Indlaw SC 1257) and Kazi Lhendup Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116 1994 Indlaw SC 422). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. (See Ramjas Foundation vs. Union of India, (AIR 1993 SC 852 1992 Indlaw SC 1037) and K.R. Srinivas v. R.M. Premchand, (1994 (6) SCC 620 1994 Indlaw SC 1765).\n5. It is necessary to take note of the meaning of expression 'public interest litigation'. In Stroud's Judicial Dictionary, Volume 4 (IV Edition), 'Public Interest' is defined thus:\n\"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.\"\n6. In Black's Law Dictionary (Sixth Edition), \"public interest\" is defined as follows:\n\"Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government....\"\n7. In Janata Dal case 1992 Indlaw SC 1257 (supra) this Court considered the scope of public interest litigation. In para 54 of the said judgment, after considering what is public interest, has laid down as follows :\n\"The expression 'litigation' means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression \"PIL\" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.\"\n8. In para 62 of the said judgment, it was pointed out as follows:\n\"Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.\"\n9. In para 98 of the said judgment, it has further been pointed out as follows:\n\"While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.\"\n10. In subsequent paras of the said judgment, it was observed as follows:\n\"It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold\".\n11. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the do others of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.\n12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.\n13. The Council for Public Interest Law set up by the Ford Foundation in USA defined the \"public interest litigation\" in its report of Public Interest Law, USA, 1976 as follows :\n\"Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.\"\n14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.\n15. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481 1993 Indlaw SC 461), and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151 1994 Indlaw SC 1633). No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K. Parasaran, (1996 (7) JT 265 1996 Indlaw SC 977). Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.\n16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and Others. v. Jitendra Kumar Mishra and Others. (AIR 1999 SC 114 1998 Indlaw SC 235), this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out the truth and motive behind the petition. Whenever such frivolous pleas, as noted, are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.\n17. In S.P. Gupta v. Union of India (1981 Supp. SCC 87 1981 Indlaw SC 599)it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution:\n\"But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.\"\n18. In State of H.P. vs. A Parent of a Student of Medical College, Simla and Others. (1985 (3) SCC 169 1985 Indlaw SC 286), it has been said that public interest litigation is a weapon which has to be used with great care and circumspection.\n19. These aspects have been highlighted in Ashok Kumar Pandey v. State of West Bengal (2004 (3) SCC 349 2003 Indlaw SC 1010) and Dr. B. Singh v. Union of India and Others. (2004 (3) SCC 363 2004 Indlaw SC 196).\n20. It is disturbing feature which needs immediate remedial measure by the Bar Councils and the Bar Association to see that the process of law is not abused and polluted by its member. It is high time that the Bar Councils and the Bar Associations ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attractive brand name of \"Public Interest Litigation\". That will be keeping in line with the high traditions of the Bar. No one should be permitted to bring disgrace to the noble profession. We would have imposed exemplary cost in this regard but taking note of the fact that the High Court had already imposed costs of Rs.25,000/-, we do not propose to impose any further cost.\n21. Let copy of this judgment be sent to Bar Council of India and the Supreme Court Bar Association by the Registry for necessary action.\nThe petition deserves to be dismissed, which we direct.\n"}
+{"id": "8H6h8l7qgA", "title": "", "text": "Gurpal Singh v State of Punjab and Others\nSupreme Court of India\n\n10  May  2005\nCivil Appeal No. 2802-2803 of 2002\nThe Judgment was delivered by : Arijit Pasayat, J.\n1.  By the impugned judgment a Division Bench of the Punjab and Haryana High Court held that the appointment of the appellant as Auction Recorder of the Market Committee, Patran was invalid and illegal. The said order came to be passed on the basis of a Writ Petition filed by respondent No. 4. It is to be noted that the said petition was styled as a Public Interest Litigation (in short 'PIL').\nA brief reference to the factual aspect would be necessary.\n2.  Appellant was appointed as Auction Recorder on 19.11.1986. Appointment of the appellant was challenged by one Ashok Kumar, clerk of the Market Committee by filing a complaint before the competent authority alleging that the appellant having been convicted under Section 61(1)(a) of Punjab Excise Act in 1974 for alleged commission of offence on 21.5.1973 and was therefore ineligible for being considered for appointment.\n3. The complaint was looked into by the Market Committee and by order dated 22nd May, 1989 it was held that the appointment was not contrary to law. The Standing Counsel of the Committee categorically opined that since no moral turpitude of any kind was involved, there was no ineligibility attached to the appellant and his appointment was in accordance with law.\n4. For the aforesaid purpose reliance was placed on a decision of the Punjab and Haryana High Court in the case of Narain Singh v. N.S. Chima (1997 SLWR 448). On 5.9.1989 appellant's services were regularized under the Punjab Market Committees (Class III) Rules, 1989 which came to be operative after appellant was appointed. Prior to that no specific Rules were there.\n5. A Civil Writ Petition No. 3451 of 1989 was filed by one Chandra Bhan before Punjab and Haryana High Court challenging the direct appointment of the appellant. During pendency of the said Writ Petition Sukhjinder Singh filed a complaint before the Administrator, Market Committee questioning appellant's appointment.\n6. Notice was issued by the Administrator to the appellant, who filed his reply. A revision in terms of Section 42 of the Punjab and Haryana Agricultural Produce Markets Act, 1961 (in short the 'Markets Act') was filed before the Special Secretary to the Government of Punjab, Department of Agriculture who passed orders to the effect that Administrator should look into the matter and take a decision as to whether action against the appellant was called for. While Writ Petition No. 3451 of 1989 was pending, Civil Writ Petition No. 6180 of 2000 was filed by the respondent No. 4 challenging appointment of the appellant and as noted above the petition was stated to be one in public interest.\n7. Counter Affidavit was filed by the Punjab Mandi Board and the Market Committee taking the stand that since conviction of the appellant did not involve any moral turpitude the appointment was in accordance with law. Appellant also filed counter affidavit before the Market Committee questioning locus standi of the Writ Petitioner to challenge his appointment.\n8. It was pointed out that no public interest involved and because of political and personal rivalry the petition had been filed. The High Court by the impugned order held that since the appellant had been convicted by a Court of competent jurisdiction under Section 61 of the Punjab Excise Act, his appointment was not according to rules. Therefore his appointment was set aside and the Punjab Mandi Board and the Market Committee were directed to start fresh process of selection for filling up of the post.\n9.  In support of the appeal, learned counsel for the appellant submitted that Writ Petition filed by the writ petitioner (respondent No. 4) was nothing but a sheer abuse of process of court. It was by no stretch of imagination Public Interest Litigation and it was filed because of personal and political rivalry and ought to have been dismissed by the High Court.\n10. The assertion that appellant and respondent No.4 were pitted against each other in several elections has not been denied. Even the Punjab Government has as back as on 22.6.1981 issued a Circular that only records of conviction for preceding five years were to be taken note of.\n11.  Learned counsel appearing for the Market Committee supported the stand of the appellant and submitted that there was nothing irregular in the appointment of the appellant and the same was in terms of the rules of appointment. Learned counsel for the respondent No. 4, writ petitioner however, submitted that merely because the writ petition was filed after fourteen years and because there was some personal differences that cannot dilute the public interest element involved in the writ petition.\n12. It was further submitted that notwithstanding the clear direction of the High Court to start the process of selection afresh within four months, nothing has been done and this amounts to contempt of Court.\n13.  The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this court in various cases.\nThe Court has to be satisfied about\n(a)The credentials of the applicant;\n(b)The prima facie correctness or nature of information given by him;\n(c) The information being not vague and indefinite.\nThe information should show gravity and seriousness involved.\nCourt has to strike balance between two conflicting interests;\n(i) Nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and\n(ii) Avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions.\n14. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature.\n15. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.\n16.  Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu, (1994 (2) SCC 481), 1993 Indlaw SC 461 and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151). 1994 Indlaw SC 1633 No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes.\n17. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K. Parasaran, (1996 (7) JT 265). 1996 Indlaw SC 977 Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.\n18.  As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, High Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases.\n19. Though in Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. (AIR 1999 SC 114), 1998 Indlaw SC 235 this Court held that in service matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision.\n20. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs.\n21. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.\n22.  The aforesaid position was highlighted in Ashok Kumar Pandey v. State of W.B. (2004 (3) SCC 349). 2003 Indlaw SC 1010 It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants.\n23. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un- represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and substantial rights and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters government or private, persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc.\n24. Are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions of luxury litigants who have nothing to loose but trying to gain for nothing and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants.\n25.  Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief.\n26. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta.\n27. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.\n28.  The Council for Public Interest Law set up by the Ford Foundation in USA defined the \"public interest litigation\" in its report of Public Interest Law, USA, 1976 as follows:\n\"Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests.\nSuch groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.\"\n(See : Dr. B. Singh v. Union of India and Others (2004(3) SCC 363) 2004 Indlaw SC 196\n29. When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object.\n30. Since in service matters public interest litigation cannot be filed there is no scope for taking action for contempt, particularly, when the petition is itself not maintainable. In any event, by order dated 15.4.2002 this Court had stayed operation of the High Court's order.\n31.  Judged in the above said background the High Court was not justified in entertaining the Writ Petition. The judgment of the High Court is indefensible and is therefore set aside.\nThe appeals are allowed with no orders as to costs.\nAppeal allowed\n"}
+{"id": "IqK3yn9Ffc", "title": "", "text": "High Court of Punjab and Haryana Through R. G v Ishwar Chand Jain and Another\nSupreme Court of India\n\n26 April 1999\nAppeal (Civil) 2465 of 1999\nThe Judgment was delivered by : D. P. Wadhwa, J.\nLeave granted.\nDelay condoned in S.L.P. (C) No. 1830 of 1999.\n1.  High Court of Punjab and Haryana is aggrieved by the judgment dated May 22, 1998 of a Division Bench of its own High Court on judicial side setting aside the order of the State of Haryana, Respondent No. 2, pre-maturely retiring the first respondent Ishwar Chand Jain (hereinafter referred to as \"Jain\"), a member Of the superior judicial service of the State of Haryana on the recommendation of the High Court.\n2.  Jain, a practising advocate of 14 years standing, joined the superior judicial service of the State of Haryana after his selection by the High Court. He joined service on May 2, 1983 and under Rule 10 of the relevant rules put on probation for a period of two years. He was posted at Hissar as Additional District and Sessions Judge. In The year 1983-84 inspection of his court was made by the inspecting judge of the High Court, who graded his work as \"B-satisfactory\". Full Court of the High Court reduced this grading to \"B-average/satisfactory\". For the subsequent year 1984-85 Jain was posted at Narnaul. The inspecting judge graded him \"B+(Good)\". Full Court of the High Court, however, graded it to \"C-Below Average\". While the inspecting judge considered \"knowledge of law and procedure\" of the officer as \"good\", High Court recorded it as \"Poor\". Against the column \"If the Officers was Industrious and prompt in disposal of the cases and has he coped effectively with heavy work\" inspecting judge gave him the remarks as \"yes\", High Court said it is \"No\". Against the column \"whether the judgments'and orders were well written and clearly expressed\", the inspecting judge said \"Yes+B(Good)\". There is no such column in the form of recording ACR by the High Court. Inspecting judge said officer was an efficient judicial officer and had maintained the judicial reputation for honesty and impartiality. According to High Court there was \"scope for improvement\", About his attitude towards members of the Bar and the public the inspecting judge recorded that \"some members of the Bar were complaining about his unaccommodating nature.\" High Court used this entry to say \"scope for improvement\".\n3.  In the Full Court meeting of the High Court held on March 21, 1985 the High Court resolved that the work and conduct of Jain was not satisfactory and that his services deserved to be dispensed with forthwith. It made recommendation to the State Government for issuing necessary orders in mis respect. Extract of the proceedings of Pull Court meeting of the High Court held on March 21, 1985 is as under\n\"The matter regarding Shri I.C. Jain, Additional District and Sessions Judge, was considered. In view of the fact that his period of probation of two years is going to expire on 2nd May, 1985 his performance as Additional District and Sessions Judge was reviewed. It was decided on further consideration mat during this period, his work and conduct was not satisfactory and his services deserve to be dispensed with forthwith. Consequently, a recommendation be made to the State Government for issuing necessary orders in this respect.\"\n4.  Jain challenged the recommendation of the High Court terminating his probation by filing a writ petition in the High Court (CWP No. 2213 of 1986). A Division Bench of the High Court by its judgment dated December 9, 1986 dismissed the same. The Division Bench also observed that the Governor had since accepted the recommendation of the High Court dispensing with the services of Jain in terms of Rule 10(3) of me Rules. Then it directed that formal order in that regard shall be issued by the State Government without further delay. Against that Jain came to this Court seeking leave to appeal. This Court granted him leave and by judgment dated May 26, 1988 set aside the judgment of the High Court This Court held that the modification of the ACR by the Full Court for the year 1984-85 from \"B+Good\" to \" C- Below Average\" was based on no material and unsustainable in law. The result was that Jain was put back in service. He joined his duty on June 9,1988. He was, however not granted consequential benefits on his reinstatement and he approached this Court again by filing an Interlocutory Application, which was allowed by order dated September 11, 1988 and the original seniority of Jain was restored by the High Court.\n5.  ACRs of Jain for the years 1985-86, 1986-87 and 1987-88 were not written because he was not in service during the period. For the year 1988-89 the inspecting judge graded him \"B+(Good)\" by his report dated March 21, 1989. Full Court the High Court, however, graded it as \"B(Satisfacotry)\". After being reinstated Jain was posted at various places in the State. His complaint was also that he was entitled to be posted as District and Sessions Judge and even Legal Remembrancer to the State, which was encadered post, yet these were not given to him. However, this is not relevant for our purpose and we need not go into the grievance of Jain.\n6.  For the year 1991 Jain was posted as Additional District and Sessions Judge at Jind. It is alleged that during his tenure at Jind several complaints were received from members of the Bar relating to his judicial work. On the basis of the complaint Full Court of the High Court directed the District and Sessions Judge (Vigilance), Haryana to conduct an inquiry into the allegations levelled against Jain. District and sessions Judge (Vigilance) submitted his Inquiry Report on April 10,1992, which was placed before the Full Court for necessary action . It is not that complaints were made by the Bar of the Jind District and these were made only by one advocate Shri K.C. Sharma. They were in all ten complaints. These Were thoroughly gone into by the Inquiry Officer and his conclusion is reproduced as under :\n\"Out of the ten cases mentioned herein before, bias of the Presiding Officer is prima facie proved in cases mentioned at serial Nos. 2,4,5,6,8 and 10. From these eases, nothing can be inferred about any other consideration having played part in delivering these judgments. Thus, as far as these complaints are concerned, these do not make out prima facie case against the Presiding Officer, except that it does show element of bias against the complainant. I would, therefore, suggest mat the complaints be filed but the directions be given to the District Judge to transfer all the cases of the complainants from the court of Shri Jain and fix them either before himself or other Additional District and Sessions Judge. In future also he should not send any case of the complainant to the Court of Shri Jain till he remains posted in that District or any other orders deemed fit.\"\n7.  After considering the conclusion aforesaid in the Inquiry Report Full Court in its meeting held on April 24, 1992, decided that Jain be charge-sheeted and judicial work be withdrawn from his eoort. Relevant extract of the minutes of the Full Court meeting is as under :-\n\"6 ' 8. The matter regarding preliminary enquiry report submitted by Shri B.L. Gulati, District and Sessions Judge (Vig) Haryana with regard to the complaint dated 26.12,91 made by Sh. K.C. Sharma Advocate of Jind and some other matters concerning Sh, I.C. Jain, Additional District ' Sessions Judge, Jind and that of preliminary enquiry report dated 10.4.92 submitted by Sh. B.L. Gulati, DJ.V. (Haryana) on the complaints dated 17.8.91, 28.8.91, 29.8.91, 3.9.91 and 22.10.91 made by Shri Krishan Chander Sharma, Advocate, Jind was considered along with the note of the Registrar and it was decided that the Officer be charge-sheeted and judicial work be withdrawn from his court,\"\n8.  A charge-sheet was served upon Jain on July 29, 1992 and he was called upon to submit his-reply thereto. His reply was considered by the Full Court and was found to be wholly urlsatisfactory. It was, therefore, directed that a departmental inquiry be conducted against Jain and that in (he meantime he be placed under suspension. This was by resolution of the Full Court meeting dated September 28, 1992. Extract of this meeting of Full Court is as under :-\n\"13 The matter regarding reply to the charge-sheet submitted by Shri I.C. Jain, Additional District ' Sessions Judge, Jind was considered along with the note of the Registrar and the same was found unsatisfactory.\nIt was accordingly decided that a regular departmental enquiry be held against him. Hon'ble Mr. Justice V.K. Jhanji and Shri H.S, Gill, Advocate, were appointed Enquiry Officer and Presenting Officer respectively.\nIt was further decided that Shri I.C. Jain be placed under suspension forthwith.\"\n9.  Order placing Jain under suspension is dated October 3, 1992. By order dated April 8, 1993 headquarters of Jain were shifted from Jind to Chandigarh and he was informed of this decision of the High Court by communication dated May, 8 1993. There is another episode that in spite of the order Jain did not shift his headquarters from Jind to Chandigarh and did not vacate the Government accommodation allotted to him at Jind despite various directions issued to him in this regard from time to time. This, according to High Court, constituted an irresponsible behaviour, gross misconduct, disobedience of me orders and directions of the High Court and had amounted to acting in a manner unbecoming of a judicial officer, Second charge sheet dated May 12, 1995 on this account was also served on Jain. We are, however, not concerned with the second charge.\n10.  There is no record of ACRs of Jain for the years 1989-90 and 1996-91. For the year 1991-92 the inspecting judge in the column \"net result\" recorded \"Integrity Doubtful.\" As regards \"Knowledge of law and procedure, industrious and promptness of disposal of cases, nature of the officer, writing of judgments\" he gave him \"Good B+-\", As regards the attitude of the officer towards his superiors, subordinates and colleagues it was said \"Not what it should be\", and against the column 'Behaviour towards members of the Bar and the Public' remark was \"Not Good\" Against the column 'has he maintained judicial reputation for honesty and impartiality the inspecting judge recorded: \"See note attached.\" This note is as under :-\n\"Note\nThis Officer does not enjoy the reputation which a judicial officer is expected to have. Many complaints regarding his poor reputation were received from Advocates and the members of the Bar. There are some complaints which now form the subject matter of the disciplinary proceedings against him; Sd/-\n(Inspecting Judge) 251.92.\n11.  High Court in its Full Court meeting, however, graded .the officer \"C- integrity Doubtful\" and recorded that his knowledge of law and other judicial qualification were just average and that he was not industrious and had not coped effectively with heavy work and was also not prompt in the disposal of the cases. Full Court said that the officer was not having reputation for integrity arid impartiality and further that his attitude towards the superior officers etc. and his behaviour towards the members of the Bar and the public was unsatisfactory. ACR for the year 1991-92 was written by the Full Court only on September 20, 1995 as will be presently seen. It was communicated to the officer on September 22, 1995.\n12.  Meanwhile a meeting note was prepared by the registry of the High Court in respect of the retention in service of Jain beyond the age of 55 years. In this note it was pointed out that the date of birth of Jain was October 7, 1940 and he would be attaining the age of 55 years on the afternoon of October 6, 1995. His service were terminated w.e.f. December 30, 1986 and he was reinstated on June 9, 1988 in pursuance to the order of Supreme Court in Civil Appeal No. 811 of 1988 (arising out of SLP No. 15776 of 1986). He was placed under suspension w.e.f. October 3, 1992 in contemplation of disciplinary proceedings initiated against him which were still pending. With this note extracts of the relevant rule i.e. cl. (d) of Rule 3.26 of the Punjab Civil Services Rules Volume I Part I (as applicable to the sate of Haryana). instructions regarding retention in service of class I and class II officers beyond the age of 55 years issued by the State of Haryana by its letter dated September 24, 1974 relevant guidelines prescribed by the High Court as contained in its letter dated September 20, 1979 and the precis of the confidential remarks on the work and conduct of the officer, were attached. As per direction of the Chief Justice of he High Court the matter was placed before the Full Court. In the meeting of the Full Court held on September 20, 1995 consideration of the case of Jain (under suspension) for his retention in service beyond the age of 55 years was deferred it was resolved to recorded the annual confidential report of the officer for the year 1991-92 and at the same time graded it as \"C Integrity Doubtful\".\nFurther note was prepared by the Registry on September 21 , 1995 for consideration of the Full Court meeting to be held on December 12, 1995. In this it was included the remark recorded by the High Court in me ACR of Jain for the year 1991-92. Full Court in its meeting on December 12, 1995 resolved to make recommendation to the Haryana Government to retire Jain forthwith by giving him three months\" pay and allowances in lieu of notice. The resolution of the Full Court is as under :-\n\"6. The matter regarding retention in service of Sh. I.C. Jain (under suspension), a member of the Haryana Superior Judicial Service beyond the age of 55 years was considered along with the note of the Registrar and it was decided that in light of his annual confidential reports, recommendation be made to he Haryana Government that he be retired forthwith by giving him three months pay and allowances in lieu of notice as required by the rules as it would be in the public interest to do so. It was further decided to continue the enquiry against him for the limited purpose for imposing the cut on his retiral benefits.\"\n13.  Further in its meeting on January 11, 1996 Full Court modified its earlier decision of December 12, 1995 in the following manner:-\n\"12. The modification of earlier Full Court decision dated 12 12.1995 regarding retention in service beyond the age of 55 years of Sh. Ishwar Ghand Jain (under suspension), a member of Haryana Superior Judicial Service was taken up along with the report and the earlier Full Court decision was substituted as indicated below:-\n(i) That in light of his annual confidential reports, recommendation be made to the Haryana Government to retire him forthwith by giving him three months pay and allowances in lieu of notice as required by the rules as it would be in the public interest to do so.\n(ii) That in view of the above recommendation, the departmental proceedings against shri Ishwar Chand Jain be not proceeded with of the present.\n(iii) That in the event of acceptance of above recommendation of this Court by the State Government, the period of suspension of Sh. Ishwar Chand and the departmental enquiries against him shall be deemed to have been dropped from the date of acceptance of the recommendation of this Court regarding compulsory retirement of Shri Ishwar Chand Jain.\"\n14.  When the communication was received from the High Court by the State Government recommending the pre-mature retirement of the appellant, a letter dated April 2, 1996 was sent to the High Court seeking clarification as to whether a suspended official could be compulsorily retired. High Court sent its reply on April 16, 1996 stating that the retirement of Jain was made on the biasis of an overall assessment of the service record as reflected in his confidential reports and not on the basis of the departmental inquiry. Thereafter State Government issued letter dated May 10, 1996 retiring the appellant. We may reproduce this order, which was impugned by Jain in the High courts\n\"ORDER\nWhereas on the recommendation of he Punjab ' Haryana High Court, it has been decided by the State Government to retire sh. Ishwar Chand Jain, a member of the Haryana Superior Judicial Service (under suspension) from service in public interest.\n2. Now, therefore, in terms of the provisions contained in cl. (d) of rule 3.26 of Punjab Civil Services Rules, Volume I, Part-I read with clause A(c) of rule 5.32 of Punjab Civil Service Rules, Volume II, as applicable to the Sate of Haryana, the Governor of Haryana hereby orders the retirement of Sh. Ishwar Chand Jain, Additional District ' Sessions Judge (under suspension) from service with effect from the date of communication to him of this order on payment of three months salary and allowances in lieu of the period of notice.\nSd/-\n(M.C. Gupta) Chief Secretary to\nDated Chandigarh Government, Haryana\n10th May, 1996.\"\n15. We may as well reproduce the relevant the rules mentioned in the order-\n\"Rule3.26(a)\nExcept as otherwise provided in other clause of this rule, every Government employee shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He must not be retained in service after the age of compulsbry retirement except in exceptional circumstances with the sanction of the competent authority in pubic interest, which must be recorded in writing ;\n\"Provided that the age of compulsory retirement for the members of the Judicial services and Class IV Government employees shall be sixty years\"\nXXX XXX XXX\n(d) The appointing authority shall if it is of the opinion that it is in the public interest so to do. have the absolute right to retire any Government employee, other than Class IV Government employee by giving him notice of not less than three months in writing or three months\" pay arid allowances in lieu of such notice :-\n(i) If he is in Class I or Class II service or post arid had entered Government service, before attain ing the age of thirty five years, after he has attained the age of fifty years ; and\n(ii) (a) If he is Class III service of Post, of\n(b) If he is Class I or Class It Service or post and entered Government service after attaining the age of thirty-five years-After he has attained the age of fifty five years\n\"Provided that in the case of a member of the Judicial Service, if he had entered Government service before or after attaining the age of thirty five years, his case for retention in service beyond the age of fifty-eight years, shall be considered before he attains such age.\nThe Government employee would stand retired immediately on payment of three months\" pay and allowances in lieu of the notice period and will not be in service thereafter.\"\n16. In the Full Court meeting in which decision was taken to make recommendation for pre-mature retirement of Jain Registry had submitted the precis of annual confidential remarks on the work and conduct of Jain as under :-\n\"(Appointed as AddI, District ' Sessions Judge, w.e.f, 2.5.l983 direct recruit from the Bar).\nYear Remarks by the High\nCourt\n1983-84 B(Average/Satisfactory\n(In accordance with the meeting 1984-85 'C-Below Average' decision dated 21.3. l985, a recommendation was sent to the Haryana Government for 1985-86 No Scope dispensing with his services arid 1986-87 No Scope Judi. work from his court was 1987-88 No Scope also withdrawn. 1988-89 B- Satisfaotory 1989-90 B-Plus (Good)\n(His services were dispensed 1990-91 Dispensed with with vide Haryana Governor's 1991-92 C-Integrity doubtful)\norder dt. 30,1186\"\n(In view of Supreme Court orders dated 26,5.88 passed in Civil Appeal No. 81 ] of 88 arising out of S.L.P. 15776 of S6 Sh. I.C. Jain has been reinstated vide meeting decision dt. 2 638 and posted vide orders dt. 3.6.88 at Namaul).\n(The Judicial work has been withdrawn vide letter dated 27.4.1992) (Placed under suspension vide this Court's Office order dt. 3.10.1992 pending departmental inquiry).\"\n17.  Now we may refer to the article of charges which were subject matters of departmental proceedings against Jain and in contemplation of which he was placed under suspension. There were five charges. First charge was that white acting as Motor Accident Claims Tribunal he in a revengeful spirit and with some ulterior motive had initially dismissed the claim petition when the petitioner therein did not accept the offer of Jain conveyed to him through his uncle that if the petitioner promised to pay half the claim amount Jain would allow his claim petition in full.\nHowever, after two days when the petitioner threatened to make complaint against Jain he changed his decision from dismissal to allowing the petition and awarded Rs. 12,000 as compensation. Second charge was that while acting as Additional District and Sessions Judge, Jind changed his judgment with some ulterior motive. Third charge was that without awaiting the orders of the High Court he got shifted his official telephone from office to his residence and got STD facility thereon, thus committing financial irregularity in an irresponsible manner and being guilty of insubordination. Fourth charge related to seven land acquisition cases where it was alleged that with some ulterior motive he got deposited an amount of Rs. 2 laces in two banks at Delhi through the decree-holder, who belonged to Jind after obtaining their statements under the duress. Fifth charge related to the cases conducted by Shri K.C. Sharma, advocate, where it was alleged that he had shown vindictiveness and bias mind towards the advocate, which was highly objectionable and unbecoming of a judicial officer.\n18.  On various dates inquiry proceedings were held and ultimately these proceedings came to be dropped. It is not that Jain was in any way responsible for any delay of inquiry proceedings. In between inquiry officer had also been changed by the Full Court. The Order by which the inquiry against Jain was dropped is dated February 2, 1996 and we reproduce the same as under :-\n\"Enquiry case of Mr. I.C. Jain Present : Mr. H.S. Gill, Presenting Officer I have been shown the extract from the Confidential proceedings of the meeting of the Hon'ble Judges held on 11th of January, 1996 at 3.00 p.m. The proceedings reveal that the Full Court has taken a decision that the departmental proceedings against Shri I.C Jain be not proceeded with for the present. It is in view of the decision first taken by the Full Court that in light of the annual confidential reports of Shri I.C. Jain, recommendation should be made to the Haryana Government to retire him forthwith by giving him three months pay and allowances in lieu of notice as required by the rules as it is in public interest to do so. That being the situation, enquiry against Shri I.C. Jain is dropped for the time being and would be revived if at all required to be so done:\nIn view of the above, bailable warrants issued against Jai Bhagwan so ordered on 10th of January, 1996, are recalled.\nSd/. (V. K. Bali, J)\nFebruary 2, 1996 Inquiring Authority.\nBy order dated May 29, 1996 suspension of Jain was also invoked. This order is as under :-\n\"ORDER Dated, Chandigarh the 29.5.1996\nIn supersession of this Court's order dated 3.10.92 placing Shri I.C. Jain, a member of Haryana Superior Judicial Services under suspension, Hon'ble the Acting Chief Justice and Judges have been pleased to revoke the said suspension order and to re-instate Shri I.C. Jain in service from the date of acceptance of the recommendation of this Court regarding the compulsory retirement Their Lordships have further been placed to order that his period Of suspension be treated as spent on duty.\nBY ORDER OF HON\"BLE THE ACTING CHIEF JUSTICE AND JUDGES.\nSd/-. B.L. Gulati REGISTRAR\"\n19.  Jain also represented against adverse entries in his ACRs. First he wanted certain records which was the basis of recording of adverse entries against him. He was informed that his request for supply of some documents had been declined by the Chief Justice. It was pointed out to us that against recording of the adverse entries of the year 1991-92 Jain filed another writ petition in the High Court which is perhaps still pending.\n20.  We have reproduced the note attached to the ACR of Jain for the year 1991-92 prepared by the inspecting judge which is dated February 25, 1992. It is submitted before us (and there is no challenge to that) that the inspecting judge himself visited Jind only on March 16/17, 1992, That being so representations made to the inspecting judge at Chandigarh must have been received in writing and if orally then at least the names of the advocate, who came to Chandigarh, could have been mentioned and informed to Jain but this was not done.\n21.  Jain challenged his pre-mature retirement on the ground that the action of the High Court and the Sate Government was arbitrary, malice in law and was in violation of the Punjab Civil Service Rules as applicable to Class I officers. He also pleaded that the impugned rule was ultra vires Arts. 14 and 16 of the Constitution inasmuch as it did not prescribe the minimum service which an officer must render before he could be retired from service pre-maturely. Then there was a challenge to pre-mature retirement on the ground that it was violative of Art. 311 of the Constitution as pre-mature retirement is punitive in character. High Court did not go into the question if the impugned rule 3.26(d) of the Punjab Civil Services Rules was violative of Arts. 14 and 16 of the Constitution and also that in any case the Rule was violated inasmuch as on account of non-payment of three months\" pay and allowances to Jain. In the writ petition Jain had sought setting aside (i) adverse entries in the ACR against him for the year 1991-92, and (2) decision of the High Court taken in its Full Court meeting on December 12, 1995 recommending pre-mature retirement of Jain and consequently the impugned order dated May 10, 1995 of the State Government pre-maturely retiring him, he being a member of Haryana Superior Judicial Service.\n22.  A Division Bench of the High Court speaking through G.S. Singhvi, J., in its well considered judgment, which is now impugned before us, set aside the order of pre-mature retirement of Jain on the ground that no inquiry consistent with Article 311, Haryana Civil Services (Punishment and Appeal) Rules, 1970 and principles of natural justice, had been conducted against him. It came to the conclusion that the decision to retire Jain was founded on the allegation of misconduct which was subject-matter of inquiry and formed the basis of adverse remarks made by the inspecting judge and the Full Court. Then it proceeded to hold as under :-\n\"We do find some substance in the argument of Shri Jain that the rejection of his representation against the adverse remarks does not satisfy the test of fairness because no reasons have been recorded by the High Court for not accepting the points and contentions raised in the representation and the record also does not show the existence of such reasons, we do not want to express any conclusive opinion on this issue because even after invalidation of the pre-mature retirement of the petitioner, the departmental inquiries can be continued and the fate of the remarks made in his ACR of 1991-92 will ultimately depend on whether the Court upholds the allegations levelled against the petitioner, The issue regarding claim of the petitioner for grant of selection grade and other benefits will also be dependent on the final conclusion of the departmental inquiries which may be continued against the petitioner in view of the quashing of order of pre-mature retirement. Therefore, we do not want to entertain his claim for grant of selection grade at this stage. For the reasons mentioned above, the writ petition is allowed. The pre- mature retirement of the petitioner brought about vide order dated 10.5.1996 is declared illegal and the said order is quashed. The petitioner shall get consequential benefits. However, we make it clear that the competent authority shall be entitled to revive the proceedings of inquiries and take appropriate decision in accordance with.\"\n23.  The foremost question arising for our consideration is if the order of pre- mature retirement of Jain is based on sound legal principles and is not punitive in nature. Further question connected with this would be if recording of adverse remarks in the ACR for the year 1991-92 is justified in the circumstances and whether the Full Court was misled by the precis of ACR prepared by the Registry for the meeting of the Full Court held on December 12,1995.\n24.  In Shyam Lal V. The State of Uttar Pradesh, [1995] 1 SCR 26 1954 Indlaw SC 30, the appellant was compulsorily retired under the provisions of Article 465-A of Civil Service Regulations. Note 1 to Article 465-A provides that the Government retains the absolute right to retire any Government servant after he has completed 25 years of qualifying service without giving any reasons and that this right will not be exercised except when it is in the public interest to dispense with the services of an officer. This Court said that the two requirements for compulsory retirement were that the officer had completed 25 years of service and that it was in public interest to dispense with his further services. Then the Court added: \"it is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity.\"\n25.  In Ram Ekbal Sharma v. State of Bihar and another, [1990] 3 SCC 504 1990 Indlaw SC 808, it was laid down that court can lift the veil of an innocuous order in appropriate cases to find the real basis of the order of compulsory retirement of an officer. This is how the Court said :-\n\"On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal case [1984] 2 SCC 369.\n25. In Anoop Jaiswal v. Government of India, [1984] 2 SCC 369 1984 Indlaw SC 99, this Court said :-\n\"It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the court holds that the order though in the form is merely a determination of employment is in reality a clock for an order of punishment, the court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.\"\n26. In Baikuntha Nath Das and another v. Chief District Medical Officer Baripada and another, [1992] 2 SCC 299 1992 Indlaw SC 1228 this Court laid the following principles, which a Court has to keep in mind while considering the question of compulsory retirement :-\n\"34. The following principles emerge from the above discussion :\n(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour,\n(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.\n(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary-in the sense that no reasonable person would form the requisite opinion on the given material; is short, if it is found to be a perverse order.\n(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so if the promotion is based upon merit (selection) and not upon seniority.\n(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.\nInterference is permissible only on the grounds mentioned in (iii) above.\"\n27. In State of U.P. and another v. Abhai Kishore Masta, [1995] I SCC 336 1994 Indlaw SC 2175 this Court relied on its earlier decision in Baikuntha Nath Doss case [1992] 2 SCC 2991992 Indlaw SC 1228. It was observed that it cannot be said as a matter of law nor can it be said as an invariable rule, that any and every order of compulsory retirement during the pendency of disciplinary proceedings is necessarily penal. It may be or it may be not. It is a matter to be decided on a verification of the relevant record or the material on which the order is based.\n28. In a recent judgment in Madan Mohan Choudhary v. The State of Bihar and others, JT (1999) 1 SC 459 1999 Indlaw SC 445 this Court was considering the order of compulsory retirement of the appellant, who was a member of superior judicial service in the State of Bihar. On a writ petition filed by the appellant in the High Court challenging his order of compulsory retirement by the Full Court of the High Court, the High Court on the judicial side refused to interfere and dismissed the petition. The appellant came in appeal before this Court. This Court found that while on various earlier occasions remarks were given by the High Court but there were no entries in the character roll of the appellant for the years 1991-92, 1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously and the appellant was categorized as \"C\" Grade Officer. The date on which these entries were made was not indicated either in the original record or in the counter affidavit filed by the respondent. These were communicated to the appellant on 29.11.1996 and were considered by the Full Court on 30.11.1996. It was clear that these entries were recorded at a stage when the Standing Committee had already made up its mind to compulsorily retire the appellant from service as it had directed the office on 6.11.1996 to put up a note for compulsory retirement of the appellant. This Court held that it was a case where mere was no material on the basis of which an opinion could have been reasonably formed that it would be in the public interest to retire the appellant from service pre- maturely. This .Court was of the opinion that the entries recorded \"at one go\" for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration. The Court then referred to its earlier decision in Registrar, High Court of Madras v. R. Rajiah, JT(1988)2 SC 567 1988 Indlaw SC 809 Where this Court said that the. High Court in its administrative jurisdiction has the power to recommend compulsory retirement of the member of the judicial service in accordance with the rules framed in that regard but it cannot act arbitrarily and there has to be material to come to a decision to compulsorily retire the officer. In that case it was also pointed out that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the officers may discharge their duties honestly and independently unconcerned by the ill-conceived or motivated complaints, made by unscrupulous lawyers and litigants.\n29. Keeping in view the aforesaid principles we may examine the background under which the order Compulsorily retiring Jain came to be passed. In December, 1995 judges comprising the Full Court were not the same as that in the year 1985 when probation of Jain was terminated. There were hew appointments of judges and there were judges, who had come on transfer from other High Courts. They could not be aware of the circumstances leading to termination of the probation of Jain and ACR given to him for the year 1984-985. In the precis of the ACRs for the Full Court ACR given to Jain For the year 1984-85 was Shown as \"C-Below Average.\" The inspecting judge for the year 1984-85 had graded the officer as \"B+Good\" but the Full Court modified me same to \"C-Below Average.\"\" This Court in earlier appeal filed by Jain against termination of his probation held that the modification of the entry by the High Court was without any material and was not sustainable in law. It meant that the Supreme Court restored the grading of Jain in his ACR for the year 1984-85 as \"B+Good.\" There is no indication of this in the precis prepared by the Registry which certainly would have misled many of the judges Of the Full Court. There is no ACR recorded for the years 1992-93, 1993-94, 1994-95 and for nine months of 1995-96 when the Full Court met on December 12, 1995. In its earlier meeting on September 22, 1995 it recorded ACR for the year 1991-92 grading Jain as \"C-integrity doubtful.\" In coming to this conclusion Full Court relied on the inspection report prepared by the inspecting judge on February 22,1992 where he graded Jain as \"integrity doubtful\" and gave his note which we have quoted above. There is no material forthcoming as to why the inspection report of February 1992 came to be considered by the Full Court in September, 1995 and why there could be no inspection from that year till holding of the Full Court meeting. Inspection note by the inspecting judge gives an impression that he inspected the Court of Jain and visited the bar room before he gave his report.\n26. Fact, however, remains thai the inspecting judge inspected the Court of Jaih only in March, 1992. Inspecting judge also noted that there were some complaints which formed the subject-matter of the disciplinary proceedings against him. This also does not appear to be correct inasmuch as on the date of the inspection report no disciplinary proceedings were pending against Jain. There were also no particulars of the complaints whether these were in writing or oral and if these related to the judicial work performed by the officer. At least some of the cases in which Jain was found to have acted improperly could have been mentioned when there were many complaints from me members of the Bar, The inspection note is certainly flawed and could not have formed the basis by the Full Court to record that integrity of the officer was doubtful and to grade him \"C\". Moreover we were told at the bar and it was not contradicted that the Inspecting Judge took charge of Jind district only on November 21; 1991 and within three months, i.e., on February 25, 1992 gave his inspection report. This is certainly not satisfactory. The ACR for the year 1991-92 is, therefore to be kept aside. That being the position if we now refer to the precis of the ACRs of Jain there were only four ACRs and these are for the years 1983-84 (B-Average/satistactory), 1984-85 (B+Good), 1988-89 (B- Satisftctory) and 1989-90 (B+good)). On the basis of these ACRs it is difficult to hold that the recommendation of the High Court could be justified u/cl. (c) of third principle laid in Baikunth Nath Das case.\n27.  From the resolutions of the Full Court of December 12,1995 and January 11, 1996 it is apparent that Jain was retired while under suspension. It appears that the High Court on its administrative side decided to keep disciplinary proceedings against Jain pending for the purpose of imposing the cut on his retiral benefits. The conclusion is obvious that action of the High Court in retiring Jain was based on the allegation of misconduct, which was subject matter of the inquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991 -92. There is substance in the argument of Mr. M.N. Krishanamani, learned counsel for Jain, that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct, subject matter of me inquiry. We agree with Mr. Krishnamani that the impugned order of compulsbrily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. High Court on its judicial side was correct in setting aside the order compulsorily retiring Jain and allowing the writ petition of Jain to the extent mentioned in the impugned judgment. In this view of the matter it is not necessary for us to consider other submissions made before us if Jain could at all have been compulsorily retired under Rule. 3.26 of the Punjab Civil Service Rules, Volume I, Part 1, being a member of the superior judicial service.\n28.  Though in Baikuntha Nath Das case [1992] 2 SCC2991992 Indlaw SC 1228 this Court has laid principles when there is challenge to compulsory retirement of an officer. In that case the appellant was not a judicial officer. In the case where Full Court of the High Court recommends compulsory retirement of an officer High Court On judicial side has to exercise great circumspection in setting aside that order. Here it is complement of all the judges of the High Court, who go into the question. It may hot be possible that in all cases evidence would be forthcoming about the doubtful integrity of a judicial officer and at times Full Court has to act on the collective wisdom of all the judges.\n29.  Since late this Court is watching the specter of either judicial officers or the High Courts coming to this Court when there is an order pe-maturely retiring a judicial officer. U/art. 235 of the Constitution High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which High Court performs for control over the subordinate courts. Object of such inspection is for the purpose of assessment of the work performed by the subordinate judge, his capability, integrity and competency. Since judges are human beings and also prone to all the human failings inspection provides an opportunity for pointing out mistakes so that they are avoided in future and deficiencies, if any, in the Working of the subordinate court, remedied, inspection should act as a catalyst in inspiring subordinate judges to give best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of courts at grass root level. Remarks recorded by the inspecting judge are normally endorsed by the Full Court and become part of the Annual Confidential Reports and are foundations on which the career of judicial officer is made or marred. Inspection of subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman like. Inspection of subordinate courts is not a one day or an hour or few minutes affair. It has to go on all the year round by monitoring the work of the Court by the inspecting judge. The casual inspection can hardly be beneficial to a judicial system. It does more harms than good. As noticed in the case of R. Rajiah, JT (1988) 2 SC 5671988 Indlaw SC 809 there could be ill conceived or motivated complaints. Rumour mongering is to be avoided at all costs as it seriously jeopardizes the efficient working of the subordinate courts. Time has come that a proper and uniform system of inspection of subordinate courts should be devised by the High Courts. In fact the whole system of inspection need rationalization. There should be some scope of self- assessment by the officer concerned. We are informed that the First National Judicial Pay Commission is also looking into the matter. This subject, however, can be well considered in a Chief Justices\" Conference as High Court itself can devise an effective system of inspection of the subordinate courts. Registrar General shall place a copy of this judgment before the Hon'ble Chief Justice of India for him to consider if method of inspection of subordinate courts could be matter of agenda for the Chief Justices' Conference.\n30.  With these observations these appeals are dismissed. There shall be no order as to costs.\nAppeal dismissed\n"}
+{"id": "JXke1Mo4iC", "title": "", "text": "Kulwant Rai v State of Punjab\nSupreme Court of India\n\n7 August 1981\nCr.A. No. 630 of 1981.\nThe order of the court was as follows:\n1.  We have heard Mr. Ashwani Kumar, learned counsel for the State and Mr. Mulla, learned counsel for the appellant.\n2.  We have gone through the judgment of the learned Sessions Judge who has summed up the circumstances in which the offence came to be committed. The learned Judge found that the accused at the time of the offence was aged about 20 years. The offence was committed without any premeditation. The learned Judge also found that there was no prior enmity. He also recorded that a short quarrel preceded the assault. All these would not have weighed with us, except the fact that only one blow was given with a dagger and the blow landed in the epigastrium area. The deceased succumbed to the injury. The learned Sessions Judge convicted the appellant for an offence under Section 302, Indian Penal Code and sentenced him to suffer imprisonment for life.\n3.  When the matter was before the High Court it was strenuously urged that in the circumstances of the case Para 1 of S. 300 would not be attracted because it cannot be said that the accused had the intention to commit murder of the deceased. In fact, that is conceded. More often, a suggestion is made that the case would be covered by Para 3 of Section 300, Indian Penal Code in that not only the accused intended to inflict that particular injury but the injury intended to be inflicted was by objective medical test found to be sufficient in the ordinary course of nature to cause death. The question is in the circumstance in which the offence came to be committed, could it ever be said that the accused intended to inflict that injury which proved to be fatal. To repeat, there was an altercation. There was no premeditation. It was something like hit and run. In such a case, Para 3 of S. 300 would not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the circumstances herein discussed, it would appear that the accused inflicted an injury which he knew to be likely to cause death and the case would accordingly fall u/s. 304 Part II, Indian Penal Code.\n4.  We accordingly alter the conviction of the appellant from one u/s. 302 to that u/s. 304 Part II, Indian Penal Code and sentence him to suffer rigorous imprisonment for five years.\nThe appeal is disposed of accordingly.\nAppeal dismissed.\n"}
+{"id": "22wjZRL9Oa", "title": "", "text": "Randhir Singh v State of Punjab\nSupreme Court of India\n\n18 September 1981\nCr.A. No. 763 of 1981 (arising out of S.L.P. (Cri) No. 890 of 1981)\nThe Judgment was delivered by: DESAI, J.\n1. Appellant Randhir Singh alias Dhire has been convicted for having committed an offence under S. 302Indian Penal Code, 1860 in that on July 4, 1979, he gave a blow with a Kassi on the head of Mohan Singh who under the impact of the blow fell down on the ground. He was removed to the hospital where he died on July 10, 1979. Autopsy on the dead body of Mohan Singh was conducted by (P.W.1) Dr. S. C. Garg on the very day. He noticed the following injuries:\n(1) A stitched wound on the right frontal parietal region 2\" in length. It was approximately bone deep;\n(2) A surgical would on the right temporal region for hole and\n(3) There was bruising of the right eye with ecchymosis of the bulbar conjunctive.\nOn internal examination the autopsy surgeon found under the seat of injury No. 1 a fissured fracture extending from the said of the wound to the base of the skull covering the middle cranial fossa.\n2. The appellant and his father Shamsher Singh were tried by the learned Sessions Judge for having committed an offence under section 302, Indian Penal Code, 1860 and Sec. 362 read with S. 34. Indian Penal Code, 1860 respectively. The learned Sessions Judge convicted both of them for the offence with which each of them was charged and sentenced each of them to suffer imprisonment for life. Shamsher Singh, the second accused was also directed to pay a fine of Rs. 3,000/-, in default to suffer rigorous imprisonment for one year.\n3. In the appeal preferred by both the accused a Division Bench of the High Court of Punjab and Haryana held that the charge against Shamsher Singh was not brought home and he was given benefit of doubt and acquitted. Conviction of the appellant and the sentence imposed upon him were confirmed.\n4. When the special leave petition came up before this Court, a notice was issued limited to the nature of offence and sentence only and special leave was also limited to the same.\n5. Appellant was aged about 18 1/2 years on the date of occurrence being July 4, 1979. According to the prosecution he gave one blow with kassi. This blow was given on July 4, 1979, at about 12 noon. Victim Mohan Singh died in the hospital on July 10, 1979. In the opinion of the medical officer who carried out the autopsy death occurred on account of intra-cranial haemorrhage as a result of injury No. 1. In the opinion of the medical officer this injury was sufficient in the ordinary course of nature to cause death. In the background of these facts the question arises as to what is the offence committed by the present appellant. Unfortunately the High Court has not dealt with this aspect. The High Court took into consideration the fact that there were three injuries on the dead body and that injury no. 1 is attributed to the present appellant. Thereafter there is an observation which is contrary to record. It reads as under:\n\"Other two injuries are just bruises and simple in nature.\"\nThis is factually incorrect because injury No. 2 is not an injury caused by anyone but was a surgical wound caused for the purpose of performance of an operation on the deceased. Injury No. 3 is a bruise and is an injury of a trivial character. It is not even the prosecution case that the present appellant gave more than one blow with kassi or with any other weapon.\n6. It is at this stage necessary to recall the circumstances under which the appellant is alleged to have given one blow with kassi. Facts alleged and held proved are that deceased Mohan Singh had constructed a house in the, phirni (outer circuitous road) of village Khasi Khurd. He had installed a water pump near his house. Appellant and his father belonged to village Khasi Kalam and they had purchased agricultural land adjacent to the Phirni of village Khasi Khurd. On the date of the occurrence Smt. Amar Kaur widow of the deceased was cleaning utensils at the water pump and the deceased was washing his hands and face. Appellant started digging earth from village Phirni and started throwing it towards the water pump. Mohan Singh asked him not to do so but he did not desist and in the meantime the father of the appellant arrived there with a kassi. There ensued an altercation between the father of the appellant on the one hand and deceased Mohan Singh on the other. At that stage according to the prosecution Shamsher Singh father of the appellant exhorted the appellant to attack the deceased and under these circumstances the appellant is alleged to have given one blow with sharp edge of Kassi on the head of Mohan Singh and this blow proved fatal after a period of six days.\n7. In the circumstances discussed herein it is not possible to hold that the appellant intended to cause death of the deceased and Para 1 of S. 300. Indian Penal Code, 1860 would not be attracted.\n8. The contention is that Para III of S. 300, Indian Penal Code, 1860 would be attracted in that the appellant not only intended to cause that particular injury which is alleged to have been inflicted and the injury alleged to have been inflicted was sufficient in the ordinary course of nature to cause death. In a small village upon a minor quarrel the appellant a young boy aged 18 1/2 years, studying in the engineering college and not shown to have been armed, gave one blow by Kassi brought by his father, could it be said that he intended to cause that particular injury. Merely because the blow landed on a Particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury. The weapon was not handy. He did not possess one. Altercation took place between his father and the deceased and he gave blow with a Kassi.\nIn our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury. True it is that the injury proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. We need not dilate upon this subject in view of a very recent decision of this Court in Jagrup Singh v. State of Haryana decided on May 7, 1981,  1981 indlaw sc 73.\nSen, J.\nspeaking for the Court, after referring to various previous decisions on the subject including the one relied upon in this case. Virsa Singh v. State of Punjab, 1958 Indlaw SC 821958 Indlaw SC 82, observed that in order to bring the case within Para III of Section 300, Indian Penal Code, 1860 it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. We find it difficult to hold in the circumstances herein set out that such was the intention of the appellant.\n9. In our opinion, having regard to the totality of circumstances, viz. there is only one injury, that the weapon was not carried by the appellant in advance, that there wan no premeditation that he was a young college going boy, that there was some altercation between the deceased and his father and that the death occurred nearly after six days, one can only say that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Under these circumstances, in our opinion, the appellant is shown to have committed an offence under section 304, Part II of the Indian Penal Code, 1860 and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years.\n10. Accordingly this appeal is allowed and conviction of the appellant is altered from S. 302. Indian Penal Code, 1860 to S. 304. Part II, Indian Penal Code, 1860 and the sentence of life imprisonment is reduced to rigorous imprisonment for five years.\nAppeal allowed.\n"}
+{"id": "NAp0mxDoJJ", "title": "", "text": "State of Punjab and Others v Ram Lubhaya Bagga and Others\nSupreme Court of India\n\n26 February 1998\nCivil Appeal Nos. 1111-1115 of 1998\nThe Judgment was delivered by : A. P. Misra, J.\nLeave granted.\n1.  In these set of appeals arising out of Special leave petitions, the common question which has come up for consideration is the entitlement towards medical expenses of the Punjab government employees and pensioners as per the relevant rules and the Government policy. In pith and substance, the scale at which their reimbursement is admissible towards their medical expenses incurred in a nongovernmental hospital. It is not a new phenomena, such employees have been and are still raising such issue repeatedly with the changing scenario, political, social and financial the policy of reimbursement is not static. In the recent past in spate of petitions dealing with the 1991 policy of the State Government this Court settled this principle in the case of Surjit Singh vs. State of Punjab & Ors., (1996 (2) SCC 336 1996 Indlaw SC 3445 and State of Punjab vs. Mahinder Singh Chawla (1997 (2) SCC 83 1996 Indlaw SC 2054. Consequent to the effect of the said and other decisions and their resultant impact on the State exchequer and other actors led the State Government to reconsider its old policy of 1991 by making necessary modifications, deletionsa through order dated 9.9.94 till it was substituted through a new policy dated 13th February, 1995. All the earlier rulings were based on the aforesaid old policy including the clarification dated 8th October, 1991. The same was partially withdrawn on 9th September, 1994 followed by placing the new policy on 13th February, 1995. In short respondents grievance, is the claim which was allowed by this Court earlier when such employees were admitted for heart ailment in escorts a nongovernmental hospital, is now being declined which was allowed by this Court earlier when such employees were admitted for heart ailment in Escorts a non-governmental hospital, is now being declined which is in contradiction to the said rulings of this Court.\n2.  In short in SLP (C) No. 13167 respondent is said have suffered a severe heart attack on 13th March, Research Center in an emergency. On 27th March, 1995 and was taken to the Escorts Hearts Institute and Research Center in an emergency. On 27th March he underwent coronary artery bypass graft surgery. Finally he was discharged on 10th April, 1995. The entire expenses incurred for the treatment, surgery, post-operative check up etc. came to Rs. 2,11,758,70. In May, 1996 he has submitted the bill to the government for reimbursement.\n3.  The appellant's stand is that as per new policy dated 13th February, 1995 the reimbursement of the medical expenses incurred in any private hospital is only admissible, if for such ailment, treatment is not available in any government hospital, and for this no objection certificate is obtained from the Civil Surgeon or Director of Health Services as the case may be. Respondent's case was not referred to the Escorts for any treatment by any of the competent authority. For any such claim an employee must obtain no objection certificate from the concerned authority. In cases of emergency if admitted in a private hospital ex-post facto approval could be obtained from the concerned authority of course within the permissible parameters. As the claim relates to surgery conducted after the new policy and the reimbursement amount is claimed on the basis of the bill of the Escorts, the same is, according to appellant not permissible in as much as the Committee of Technical Experts has decided as per the new policy that only rates as prevalent in All India Institute of Medical Sciences, New Delhi, will be paid.\n4.  The respondents with vehemence challenge this stand and the new policy of the appellant which has come into force on 13.2.95 as the same being violative of Article 21 of the Constitution of India. It is argued this is one of the most sacred fundamental rights given to its citizen. Since right to life is protected under this Article hence refusing to pay the amount spent to save one's life amounts to the curtailment of such right, hence violative of Article 21. In earlier decisions this Court has said that the right to live does not mean mere survival or animal existence but includes the right to live with Human dignity. In other words, man's Life should be meaningful, worth living. Pith and substance of life is the health, which is the nucleus of all activities of life including that of an employee or other viz. the physical, social, spiritual or any conceivable human activities. If this is denied, it is said everything crumbles.\n5.  This Court has time and again emphasised to the Government and other authorities for focussing and giving priority and other authorities for focussing and giving priority to the health of its, citizen, which not only makes one's life meaningful, improves one's efficiency, but in turn gives optimum out put. Further to secure protection of one's life is one of the foremost obligation of the State, it is not merely a right enshrined under Article 21 but an obligation cast on the State to provide this both under Article 21 and under Article 47 of the Constitution. The obligation includes improvement of public health as its primary duty. Learned counsel for the appellant on the other hand does not deny such a right but urges that the same can be placed within permissible limits by rules and policies laid down. The right claimed may be sacrosanct, which has to be given, but the same can be put within reasonable limits, under a policy which is framed after taking into consideration various factors. Thus the only question is, whether the new policy is arbitrary, unreasonable violative of any law or principle to be struck down. Of corse it has to stand to the test of reasonableness and not to erode or curtail any of the Constitutional or Statutory right of any employee, If not, the claim cannot go beyond the policy. Shri Rajeev Dhawan, learned senior counsel appearing for the appellants submits with force that it would be no violation, if medical facility in absolute term as desired is not provided because of any financial constraints viz. lack of financial resources or for such other reasons. No right under the Constitution is absolute in term. It has to be balanced with the need, equity and the resources available.\n6.  In Vincent Panikurlangara vs. Union of India: (1987 ) 2 SCC 165 1987 Indlaw SC 28640;\n\"Para 20 In a series of pronouncement during the recent years this court has called out from the provisions of part IV of the Constitution these several obligations of the State and Called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical betterment of these depends the building of the society of which the Constitution makers envisages. Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top.\"\n\" The expression 'life' assured in Article 21 does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the work place and leisure facilities and opportunities to eliminate sickness and physical disability of the workmen. Health of the workman enables him to enjoy the fruits of his labour, to keep him physically fit and human right to protect his health. In that case health insurance, while in service or after retirement was held to be a fundamental right and even private industries are enjoined to provide health insurance to the workmen.\"\nIn Kirloskar Brothers Ltd. vs. Employees State Insurance corporation, 1996 (2) SCC 682 1996 Indlaw SC 3147; \"the Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations under taken by the Government in the welfare State. The Government discharges this obligation by running hospitals and health centers which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.\"\n7.  In Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal, 1996 (4) SCC 36 1996 Indlaw SC 2871;\n\"Para 14: It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the Constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the Constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State has to be kept in view.\"\n8.  On the basis of last decision reference to above, the question is, whether such a right is absolute and no financial constraints could be pleaded or if it could be, to what extent? This we would be adverting little later.\n9.  Learned counsel for the appellants fairly submits that in respect of any such claim of reimbursement for a period prior to the new policy, the old policy of 1991 as modified before the new policy would be applicable. so far as the old policy goes the law is well settled through various decisions of this Court about which there is not much dispute.\n10.  Before proceeding further we would like to refer to a preliminary objection raised by learned counsel for the respondent that under this new policy when the State Government denied such claim of an employee in circumstances similar to the present case, the said employee filed a writ petition which was allowed by the High Court in the case of Varian Singh vs. State of Punjab (1996 (4) SLR 177) against that judgment the State filed SLP (C) No. 12954 of 1996 and it was dismissed by this Court on 17th December, 1996. Hence it is contended for the respondent that the State cannot take up the same stand which has become final. We are informed and it is not disputed that the said dismissal of the SLP was not by any reasoned order. Points raised here before us was neither raised nor decided in that SLP by this Court. As this question is likely to come in future, we feel it is necessary to decide and settle it. Hence this preliminary objection raised by the respondent has no force.\n11.  The validity of the claim of the respondents has been upheld by the High Court under the impugned order and the which respondent has been held entitled to total reimbursement of his expenses incurred in a private hospital. To appreciate all this it is necessary to shortly give the periphery of the earlier policy of 1991 and the new policy dated 13th February, 1995.\n12.  The old policy of 1991 was framed in supersession of the earlier Punjab Government's letter dated 27th May, 1987. This is a policy for the reimbursement of the medical expenses incurred on treatment taken abroad or in a hospital other than the hospitals of the Government of Punjab (both outside and in the State of Punjab). Relevant portion of the same is quoted hereunder:\n\"The person who is in need of medical treatment outside India or in any hospital outside and in the State of Punjab) as the case may be may make an application for getting treatment in these hospitals directly to the Director, Health and Family Welfare, 2 months in advance, duly recommended by the CMO/Medical Superintendent indicating that the treatment for the disease mentioned is not available in the hospital of the Government of Punjab. In case of emergency duly authenticated by CMO/Medical Superintendent the application can be made 15 days in advance.\nDirector, Health and Family Welfare, Punjab will place the application of the employee concerned before the Medical Board within 15 days on the receipt of application. In case of emergency, if immediate meeting of Medical Board cannot be convened, such application may be circulated to all the members of the Medical Board and decision taken thereof.\"\n13.  Thereafter on 8th October, 1991, the policy was further clarified so far as the choice of hospitals is concerned which is also quoted hereunder:-\n\"Policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than those of the Government of Punjab, both within and outside the State was laid down. However, as per the 12th item of these instructions, a list of those diseases for which specialised treatment was not available in the government hospitals was to the prepared in addition to identifying medical institutions/hospitals/clinics of repute where such specialised treatment was available. Open Heart Surgery; Escorts heart Institute, New Delhi; Christian medical College, Ludhiana; Apollo Hospital, Madras.\"\n14.  We find two significant points in the said policy, one the procedural and the other nominating few designated hospitals other than government hospital for treatment. The procedure laid down under this was very onerous, some times not workable, specially in emergency cases. Under it if one needs medical treatment either outside India or in any hospital other than the Hospital of Government of Punjab, an application seeking approval for such treatment in such hospital has to be made to the Director of Health and Family Welfare two months in advance duly recommended by CMO/Medical Superintendent indicating that the treatment for such disease is not available in the hospital of the Government of Punjab. In cases of emergency such application is to the authenticated by CMO/MS to be made fifteen days in advance. It is this procedure which deprived persons from getting prompt and better treatment at other places. Some of the serious diseases do not knock or warn through bell giving them time. Emergency cases require immediate treatment and if with a view to comply with procedure one has to wait then it could be fatal. One may not in such cases live, if such a procedure is strictly followed. It seems keeping this in light, the Government in 1991 modified its policies by including Escorts Heart Institute, New Delhi; Christian Medical College, Ludhiana and Appollo Hospital, Madras, in case of Open heart Surgery as the designated hospitals for treatment of such permissible diseases. Government in its 1991 policy, also reserved its right to revise the list in future. The listing of the aforesaid designated hospitals was with the approval of the Finance Department. Thereafter on 9th September, 1994 on the advice of the Finance Department the aforesaid 1991 policy was again modified by withdrawing the clarification dated 8th October, 1991 wherein private hospitals in the State and outside were recognised for treatment. hence the benefit of the designated hospitals was no longer available to an employee for being reimbursed towards his medical expenses. it is in this background present that the new policy dated 5th October, 1995 has come in to force. The relevant portion of the Said State Policy is reproduced below:-\n\" As per instructions issued vide Punjab Government letter No. 7/7/85 5HBV/2498, dated 25.1.1991 the policy regarding reimbursement of medical emphases incurred on medical treatment taken abroad an din hospitals other than the hospitals of the Government of Punjab (both outside and inside the State of Punjab) was laid down. The Government has reviewed the decisions taken in the aforesaid letter and it has now been decided as under:-\nTREATMENT AT AIIMS\nDistrict Civil Surgeons shall be competent to permit treatment of a particular disease at AIIMS, New Delhi on the basis of recommendations of the District level Standing Medical Board provided the treatment is not available in the Government Hospitals of the State.\nThe expenditure on reimbursable items on such a treatment in AIIMS, New Delhi, shall be reimbursed to Government employees/pensioners.\nTREATMENT IN PRIVATE HOSPITALS IN THE COUNTRY\nIt has been decided that employees and pensioners should be given freedom to get treatment in any, private institute/hospital (of their own choice), in the country provided that he/she gives an undertaking out of his/her free will and in an unambiguous terms that he/she will accept reimbursement of expenses incurred by him/her on his/her treatment to the level of expenditure as per rates fixed by the Director, Health and Family Welfare, Punjab for a similar treatment package or actual expenditure whichever is less. The rate for a particular treatment would be included in the advice issued by the District/State medical Board. A Committee of technical experts shall be constituted by the Director Health and Family Welfare Punjab to finalise the rates of various treatment packages and the same rate list shall be made available in the offices of the Civil Surgeons of the State.\nHowever, this permission would be granted by the Director, health and Family Welfare, Punjab on the advice of State medical Board in case of treatment in Private Hospitals outside the State and the District Medical Board in case of treatment in private hospitals\nwithin the State. It is further submitted that in an emergent case prior permission could be waived from the Medical Board but Ex-post facto approval from the Medical Board for reimbursement of medical expenses is absolutely essential in accordance with the instructions dated 5.10.1995.\nTREATMENT ABROAD ------------------\nThe treatment of a disease in a country abroad would be permitted in extremely rare cases where satisfactory treatment and follow up should be recommended by the State Medical Board. Prior approval of the State Medical Board shall be a pre-requisite in such cases. All efforts should be made by the concerned employee/pensioner to take prior approval of the State Medical Board.\"\n15.  Learned counsel for the respondents strongly relies on the case of Surjit Singh 1996 Indlaw SC 3445 (supra). The contention is that in that case the claim for getting reimbursement expenses incurred in Escorts was upheld and hence it would be impermissible now for the State Government to deny reimbursement of expenses incurred at Escorts on the basis of the alleged new policy. The decision under the new policy to reimburse expenses only on the basis of the rates at the AIIMS, it is contended illegal. Everyone in order to protect his life has to go wherever best possible treatment is available. If respondent went to Escorts which was once a designated hospital. The refusal now to reimburse expenses incurred at Escort has no justifiable ground to stand.\n16.  Having heard learned counsel for the parties at length, we find the Surjit Singh's case 1996 Indlaw SC 3445 admittedly was based on the old policy. There the medical reimbursement claim, was admissible at the rate admissible in Escort's, as Escorts's was one of the designated hospitals. In that case denial of such rate was therefore rightly rejected. However, strong reliance has been placed by the respondent on the following paragraphs of surjit Singh vs. State of Punjab (1996 (2) SCC 336 1996 Indlaw SC 3445 ) which is as under:\n\"Para 13: The Policy, providing recognition for treatment of open heart surgery in the escorts, specifically came to be examined by a Division bench of the Punjab and Haryana High Court at Chandigarh titled as Sadhu R. Pail vs. State of Punjab (1994) 1 SLR 283 (P & H) wherein the claim of the then writ petitioner to medical reimbursement was accepted when in order to save his life he had got himself operated upon in the Escorts, and the plea of the State that he could be paid rates as prevalent in the AIIMS was rejected. special leave Petition No. 22024 of 1995 against the said decision was dismissed by this Court on 2.2.94.\"\n\"Para 16: The appellant therefore had the right to take steps in self-preservation. he did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy.\"\n17.  Same argument is submitted for drawing parity with the said case. Here also it is urged, when one gets heart attack he has to wait in a long queue, in the government hospital and may be by the time his turn comes he may not survive. it is hence argued that the medical facility provided would be futile.\n18.  As aforesaid the said decision would render no assistance to the respondents. Under the old policy there were designated hospital including Escorts. That was the foundation of the Said decision. relevant portion in this regard is quoted hereunder:-\n\"When the State itself has brought for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life.\"\n(Surjit Singh's case 1996 Indlaw SC 3445 (Supra).\n19.  That was a case where the petitioner got heart attack being in England and was hospitalised and operated in Burminghom hospital and this Court held that is as much as Escort was one of the designated hospital under the old policy of the reimbursement permissible to the appellant would be at the rate as that of Escorts and not of AIIMS as ordered by the State.\n20.  The right of the State to change its policy from time to time, under the changing circumstances is neither challenged nor could it be. let us now examine this new policy. learned senior counsel for the appellants submits that the new policy is more liberal in as much as it gives freedom of choice to every employee to undertake treatment in any private hospital of his own choice any where in the country. The only clog is that the reimbursement would be to the level of expenditure as per rates which are fixed by the Director, Health and Family Welfare, Punjab for a similar package treatment or actual expenditure which ever is less. Such rate for a particular treatment will be included in the advice issued by the District/State Medical Board for fixing this. Under the said policy a Committee of Technical Experts is constituted by the Director to finalize the rates of various treatment packages and such rate list shall be made available to the offices of the Civil surgeons of the State. Under this new policy, it is clear that none has to wait in a queue. One can avail and go to any private hospital anywhere in India. Hence the objection that, even under the new policy in emergency one has to wait in a queue as a argued in Surjit Singh case 1996 Indlaw SC 3445 (supra) does not hold good.\n21.  In this regard Mr. Sodhi appearing for the State of Punjab has specifically stated that as per the Director's decision under the new policy, the present rate admissible to any employee is the same as prevalent in AIIMS. It is also submitted, under the new policy in case of emergency if prior approval for treatment in the private hospital is not obtained, the ex-post-facto sanction can be obtained later from the concerned Board or authority for such medical reimbursement. After due consideration we find these to be reasonable.\n22.  Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. so far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying modifying or annulling it, based on however sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. it would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 When it restricts reimbursement on account of its financial constraints.\n23.  When we speak about a right, it corelates to a duty upon another, individual, employer, government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt government is rendering this obligation by opening Government hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, o reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its up-keep; maintenance and cleanliness has to be beyond aspersion. To employ best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at then try point but also during the whole tenure of their service. Since it is one of the most sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. for every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority.\n24.  Coming back to test the claim of respondents, the State can neither urge nor say that it has no obligation to provide medical facility. If that were so it would be ex facie violative of Article 21. Under the new policy, medical facility continues to be given and now an employee is given free choice to get treatment in any private hospital in India but the amount of payment towards reimbursement is regulated. Without fixing any specific rate, the new policy refers to the obligation of paying at the rate fixed by the Director. The words are;\n\" .... to the level of expenditure as per the rate fixed by the Director, Health and Family Welfare, Punjab for a similar treatment package or actual expenditure which ever is less.\"\n25.  The new policy does not leave this fixation to the sweet will of the Director but it is to be done by a Committee of technical experts.\n\" The rate for a particular treatment would be included in the advice issued by the District/State Medical Board. A Committee of technical experts shall be constituted by the Director, Health and Family Welfare, Punjab to finalize the roles of various treatment packages.\"\n26.  No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.\n27.  In Vincent vs. Union of India: AIR (1987) SC 990 1987 Indlaw SC 28640:\n\" In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health..... In a series of pronouncements during the recent years, this court has culled out from the provisions of Part IV of theConstitution, the several obligations of the State and called upon it to effectuate them in order that the resultant picture by the Constitution fathers may become a reality.\"\n28.  The next question is whether the modification of the policy by the State by deleting its earlier decision of permitting reimbursement at the Escort and other designated hospital's rate is justified or not? This of course will depend on the facts and circumstances. We have already held that this court would not interfere with any opinion formed by the government if it is based on relevant facts and circumstances or based on expert advice.\n29.  Any State endeavor for giving best possible health facility has direct co-relation with finances. Every State for discharging its obligation to provide some projects to its subject requires finances. Article 41 of the Constitution gives recognition to this aspect. 'Article 41: Right to work, to educate and to public assistance in certain cases: The State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age sickness and disablement, and in other cases of undeserved want.'\n30.  It is submitted by the appellants that earlier under the 1991 policy, for bringing in some of the designated Hospital for treatment, sanction from Finance department was obtained. Later upon an appraisal of its expenditure it was found that the bulk of the States budget was being taken by few elites for such treatment like Heart ailment etc. to the detriment of large number of other employees who suffered. hence on the advise of the Finance department by means of order dated 9th September, 1994 the facility of reimbursement of full charges at designated hospital was withdrawn even under the old policy of 1991 from 9.9.94.\n31.  Financial constraints on the State is also evident from what is recorded in the case of Waryam Singh (supra), which is also a case from Punjab:-\n\"When Civil Writ Petition No. 16570 of 1995, the Court issued a notice to the respondents to show cause as to why a direction may not be issued to the Government to decided all pending matters of medical dated 16.11.1995, the learned Government counsel produced before the Court a list of cases pending in 57 departments/offices of the Government of Punjab. these lists show that over 20,000 cases involving claim of medical reimbursement ar pending in the various departments/offices of the Government. In some cases, the claim is for as small amount as of Rs. 10/and as high as of Rs. 1,75,000/-. these lists also show that some cases of medical reimbursement are pending for last more than six years. In other cases, the duration of pendency is less. Reasons given in majority of the cases are absence of sanction of paucity of funds.\"\n32.  Learned Counsel for the appellant submits that in the Writ petition filed, the respondent did not specifically challenge the new policy of 1995. If that was done the State would have placed all such material in detail to show the financial strain. We having considered the submission of both the parties, on the aforesaid facts and circumstances, hold that the appellant's decision to exclude the designated hospital cannot be said be such as to be violative of Article 21 of the Constitution. No right could be absolute in a welfare State. A man is a social animal. He cannot live without the cooperation of large number of persons. Every article one uses is the contribution of many. Hence every individual right has to give way to the right of public at large. Not every fundamental right under Part III of the Constitution is not absolute and it is o be within permissible reasonable restriction. This principle equally applies when there is any constraint on the health budget on account of financial stringencies. But we do hope that government will give due consideration and priority to the health budget in future and render what is best possible.\n33.  For the aforesaid reasons and findings we uphold governments new policy dated 13th February, 1995 and further hold it not to be violative of Article 21 of the Constitution of India.\n34.  In the Civil Appeals arising out of SLP(C) Nos. 13167/97 and 12418/97, the surgery at Escorts was after the introduction of the new policy and therefore the extent of medical reimbursement can be only according to the rates prescribed by AIIMS. However, the respondents therein are not entitled to the full expenditure that was incurred at Escorts. We therefore, allow the appeals in part and direct that the respondents are entitled to reimburse only at AIIMS rate. The appellant will therefore reimburse the respondents to the extent within one month from today.\n35.  The appeals arising out of SLP (C) No. 12143/97 and 12144/97 though the treatment at Escorts was after the new policy the amount as claimed has already been paid at Escorts rates. On the facts and circumstances of this case, we are not inclined to interfere and therefore no question of any refund arises. These appeals are dismissed.\n36.  So far as the appeal arising out of SLP (C) No. 11968/97 is concerned, we find that the respondent had the heart attack on 9th February, 1995 and was advised to go to Delhi on 18th February, 1995 but on account of long strike in the All India Institute of medical sciences (AIIMS) he was admitted in the Escorts. On those facts we are not inclined to interfere. the respondents has been paid at the admissible are the in AIIMS but claims the difference between what is paid and what is admissible rate at Escort. Looking to the facts and circumstances of this Case we hold that the respondent in SLP (C) No. 11968/97 is entitled to be paid the difference amount of what is paid and what is the rate admissible in Escorts then. The same should be paid within one month from today. We make it clear reimbursement to the respondents as approved by us be not treated as precedent but has been given on the facts and circumstances of these cases.\n37.  For the reasons and findings recorded herein before, the new policy dated 13th February, 1995 is upheld. The impugned High Court orders to that extent are set aside, Appeals arising out of SLP(C) Nos. 13167 and 12418 of 1997 are allowed to the extent indicated above and are disposed of accordingly. Appeals arising out of SLP (C) Nos. 12143, 12144 and 11968 of 1997 are dismissed, subject to the further direction given in the appeal arising out of SLP (C) No. 11968 of 1997. There will be no order as to costs.\nAppeals disposed of\n"}
+{"id": "TGUDWFgF6c", "title": "", "text": "State of Punjab and Others v Mohan Lal Jindal\nSupreme Court of India\n\n26 October 1998\nC.A. No. 5206 of 1998 (Arising Out of S.L.P. (C) No. 19633 of 1997 23269)\nThe Order of the Court was as follows :\nLeave granted.\n1.  We have heard learned counsel for the parties. The questions involved in the present proceedings are squarely covered by a judgment of three-Judge Bench of this Court in the case of State of Punjab v. Ram Lubhaya Bagga  1998 Indlaw SC 15051998 Indlaw SC 1505.\n2.  The view taken in the said decision is that when an employee requires medical treatment after the new policy dated 13-2-1995 had come into operation, he will be entitled to medical reimbursement on the basis of the new policy at AIIMS rate. It is not in dispute between the parties that the respondent suffered a heart attack on 20-7-1995 and underwent bypass surgery on 29-7-1995. According to learned counsel for the respondent as there was a long queue of patients at AIIMS Hospital for bypass surgery and his case was of emergency, he had to go to other hospital. It may be so.  However, in the light of the reported decision, the medical reimbursement available to the respondent will be at the AIIMS rates, which has already been paid to him. The additional amount which he has claimed was granted by the High Court on the ground that the new policy was not sufficiently published. The said view of the High Court cannot be sustained. Consequently, the appeal is allowed by observing that the respondent will be entitled to medical reimbursement in the light of the new policy i.e. at AIIMS rates. It was however, vehemently submitted by learned counsel for the respondent that exception deserves to be made in this case as the respondent who was a Teacher could not afford such huge medical expenses which had to be incurred by him due to long queue for bypass surgery in the AIIMS Hospital and he had to go to other hospital.\n3.  It is further submitted by learned counsel for the respondent that the appellants may consider his grievance. He may submit such a representation on compassionate grounds. We have no doubt that such a representation will be sympathetically considered by the appellant authorities on its own merits. The judgment of the High Court will stand modified to the extent indicated herein. No costs.\nAppeal Allowed.\n"}
+{"id": "LFuMk9TsuZ", "title": "", "text": "Pitta Naveen Kumar and Others v Raja Narasaiah Zangiti and Others\nSupreme Court of India\n\n14 September 2006\nAppeal (Civil) 4121 of 2006 (Arising Out of S.L.P. (Civil) No.6789 of 2006) With C.A. Nos. 4131, 4130 & 4132 of 2006 (Arising Out of S.L.P. (Civil) Nos.6516, 7016 & 8275 of 2006)\nThe Judgment was delivered by : HON'BLE JUSTICE S. B. SINHA\nLeave granted in the S.L.Ps.\n1.  The State of Andhra Pradesh notified 301 vacancies by a notification bearing No. 21 of 2003 dated 21.11.2003 in respect of the following six categories of Group 1 services:\n(i) Deputy Collectors in A.P. Civil Service (Executive Branch)\n(ii) Commercial Tax officers in A.P. Commercial Tax Service\n(iii) Deputy Superintendent of Police (Category-2) in A.P. Police Service\n(iv) Regional Transport Officers in the A.P. Transport Service\n(v) Assistant Prohibition and Excise Superintendents in A.P. Excise Service\n(vi) Mandal Parishad Development Officer in A.P. Panchayat Raj Rural Development Service.\n2.  For filling up of the vacancies so notified, the Andhra Pradesh Public Service Commission (for short \"the Commission\") issued a notification on or about 21.11.2003 inviting applications from candidates eligible therefor. The salient features of the recruitment process are as under:\n(i) Recruitment was to be made to vacancies notified only.\n(ii) Recruitment was to be processed as per the notification and GOMs No. 570 dated 31.12.1997 and instructions issued by the State from time to time.\n(iii) The candidates were to possess the essential qualifications specified therefor as on the date of notification.\n(iv) The minimum and maximum age specified for the post were to be reckoned as on 1.7.2003.\n(v) The applicants were to be subjected to a Screening Test (Objective Type) for admission in the Main (Written) Exam. The candidates who obtained the minimum qualifying marks in the written examination were to be called for interview in the ratio 1:2 with reference to the number of vacancies.\n3.  Procedure for filling up of the vacancies was laid down in GOMs No. 570 dated 31.12.1997 in terms whereof the number of candidates to be admitted to the written examination was to be 50 times the total number of vacancies available at the material time. On or about 10.12.2003, 18 more vacancies were notified, totalling 319 vacancies. 1, 52, 000 candidates including the Appellants herein submitted their applications in response to the said notification. Yet again, 32 posts were declared vacant on or about 1.1.2004.\nA Preliminary Examination was conducted by the Commission on 28.3.2004.\n4.  Thereafter an Original Application was filed before the Andhra Pradesh Administrative Tribunal by some candidates being OA No. 1708 of 2004 inter alia for a declaration that notification of vacancies in nine categories of posts only instead and place of twenty categories in Group I services was illegal. By an interim order dated 16.4.2004, it was directed:\n\"Having regard to these facts and circumstances of the case, there shall be a direction to the respondents to compute and calculate the vacancies pertaining to various categories of posts under Group I services and notifying the same to the APPSC pending disposal of the OA.\"\n5.  A notification was issued being GOMs No. 164 on 6.7.2004 fixing 1.7.1999, instead of 1.7.2003 as originally stipulated, as the relevant date for fixing the upper age limit for candidates eligible to appear at the examination.\n6.  The Commission thereafter issued a supplemental notification being No. 6 of 2004 on 7.8.2004 inviting applications for filling up of 170 additional vacancies stipulating:\n(i) The candidates who were eligible but failed to appear in response to notification No. 21 dated 13.11.2003 may apply in response to supplementary notification.\n(ii) The candidates who had appeared in the screening test held on 28.3.2004 in response to notification No. 21 of 2003 should not apply again.\n7.  A second preliminary test thereafter was held on 10.10.2004 for about 51, 768 candidates who had applied in response to the said supplemental examination. The Commission upon holding the said preliminary test released a list of 28, 865 candidates stating that the marks obtained by the last candidate admitted into the main examination was 66% which was arrived at in terms of the ratio of 1:2 stipulated in the rules of selection. The said list was prepared with reference to 524 notified vacancies as on 7.8.2004 which included 223 vacancies notified after the issue of the initial notification for 301 vacancies on 21.11.2003 and upon taking into account the results of both the preliminary tests held on 28.3.2004 and 10.10.2004. Questioning inter alia the said action on the part of the Commission, some candidates who had not been admitted into the Main Examination filed an original application before the Tribunal which was numbered as OA No. 26 of 2005 praying for the following directions to the Respondents:\n(i) to compute the correct number of vacancies and notify the same before the main examination;\n(ii) to declare that the petitioners therein are entitled to be called for the main examination after correctly computing the number of vacancies in the ratio of 1:50 .\n8.  An interim order was passed therein by the Tribunal on 6.1.2005 reducing the cut-off marks for appearing in the main examination from 66% to 61% on the premise \"so that some opportunity is given to some more candidates to appear for main examination as some more posts are there not notified have to be considered.\"\n9.  An application for vacating the said interim order was filed by the candidates aggrieved thereby whereupon by an order dated 9.4.2005 it was directed:\n\"it would be just and proper to direct the APPSC not to declare the result of the candidates who have been permitted to appear for group 1 main examination in terms of the interim orders of this Tribunal, pending further orders in the OAs.\"\n10.  The State of Andhra Pradesh, however, issued a Government Order bearing GOMs No. 200 dated 30th April, 2005 purported to be terms of the directions of the Andhra Pradesh Administration Tribunal, the relevant portion whereof reads as under:\n\"In the circumstances, after careful consideration Government direct the Andhra Pradesh Public Service Commission to reduce the qualifying marks from 66 to 61 to allow more candidates for the main examination for recruitment to Group I Services with reference to the Notification No. 21/2003 and Supplemental Notification No. 6/2004 in relaxation of the orders issued in the G.O. first read above.\"\n11.  The legality of the said Government Order came to be questioned by some of the parties herein in OA Nos. 3960 of 2005 and 5548 of 2005. During pendency of the said original applications before the Tribunal, the Main Written Examination was conducted by the Commission in the month of May/June, 2005. Original Applications were dismissed by the Tribunal and consequently interim order dated 6.1.2005 stood vacated having regard to the decision of this Court in Union Public Service Commission v. Gaurav Dwivedi and Others  stating:\n(i) The Tribunal had no jurisdiction to interfere with the percentage of marks fixed by the Commission as cut off marks for enabling the candidates to appear for main examination. Interim order dated 6.1.2005 and consequential GOMs No. 200 issued by the Government has the effect of interfering with the cut-off marks prescribed by the Commission which the Tribunal cannot do.\n(ii) The interim order dated 6.1.2005 and GOMs has the effect of allowing 23, 000 candidates who were otherwise ineligible to appear in the examination thereby causing prejudice to the candidates who were initially selected.\n12.  The Tribunal by reason of its order dated 30.1.2006 directed the Respondents to finalise the process of selection in accordance with GOMs No. 570 dated 30.12.1997 for 543 posts instead of 524 posts and complete the entire process of selection within three months.\n13.  The State of Andhra Pradesh or the Commission did not question the correctness or otherwise of the said judgment. Respondent Nos. 1 to 3, however, filed a writ petition before the High Court. Some other writ petitions were also filed inter alia questioning GOMs No. 164 dated 6.7.2004 and GOMs No. 133 of 23.3.2005.\n14.  The High Court by reason of its impugned judgment reversed the judgment and order of the Tribunal opining:\n(i) There is nothing sacrosanct in GOMs No. 570 dated 30.12.1997 which stipulated the ratio of 1:50 between the number of vacancies and the number of candidates to be admitted to the main written examination;\n(ii) Interim order dated 6.1.2005 of the Tribunal directing a cut off mark lower than the one arrived at in accordance with the ratio prescribed under GOMs No. 570 was fixed for the reason that if eventually more number of posts in Group 1 are to be filled up, fixing lower cut off mark would satisfy the requirement of the ratio prescribed under GOMs No. 570.\n(iii) GOMs No. 200 was a result of decision of the government independent of the interim order. The tenor of language of the said GOMs is not conclusive.\n(iv) GOMs No. 200 is merely a logical extension to the decision to issue second notification to fill up 223 posts.\n(v) The contesting candidates cannot oppose issuance of GOMs No. 200 which enable more number of candidates to appear in the main examination as the number of candidates to be finally called depended on the accident/ chance of how many candidates could secure the cut off mark.\n(vi) The judgment of this Court in Gopal Krushna Rath v. M.A.A. Baig (Dead) By LRs. And Others,  holding that calling more number of candidates for the interview than permitted under the rules may result in prejudice to those who are entitled to be called in accordance with rules must be read in the context of and in consonance with the judgment in Shankarsan Dash v. Union of India  wherein it was laid down that no candidate participating in the selection process has any indefeasible and legally enforceable right to be appointed.\nThese appeals question the said judgment.\n15.  Mr. P.P. Rao, learned senior counsel appearing on behalf of the Appellants in Civil Appeal arising out of S.L.P (C) No. 6789 of 2006 submitted:\n(i) GOMs No. 200 dated 30.4.2005 having been issued pursuant to the interim order passed by the Tribunal on 6.1.2005; having regard to the fact that the same stood vacated and in any event the original application having been dismissed by the Tribunal, no effect could have been given thereto.\n(ii) The High Court committed a serious error in opining that the said GOMs No. 200 was issued pursuant to a conscious decision of the State independent of the said interim order.\n(iii) The Tribunal having no jurisdiction to reduce the qualifying marks from 66% to 61% as a result whereof more candidates had appeared in the Main Examination for recruitment to Group 1 service in relaxation of GOMs No. 570 dated 31.12.1997, the entire selection process was vitiated in law.\n(iv) Although, the Appellants did not have any right to be selected, they had acquired a legal right to be considered in terms of the extant rules.\n(v) The impugned judgment of the High Court cannot be sustained as the Commission acted in violation thereof.\n16.  Mr. L. Nageswara Rao, learned senior counsel appearing on behalf of Appellants in Civil Appeals arising out of S.L.P (C) Nos. 6516, 7016 and 8275 of 2006 supplemented the submissions of Mr. P.P. Rao urging that those candidates who were over-aged on the date of the initial notification could not have been made eligible by reason of a subsequent notification. The candidates, it was urged, who appeared at the preliminary examination and the main written examination had a legitimate expectation that the vacancies which existed on the date of the notification would be filled up in terms of the extant rules and in relation thereto no vacancy arising in future could have been taken into consideration.\n17.  Mr. A.K. Ganguli, learned senior counsel appearing on behalf of the Commission, on the other hand, would draw our attention to the fact that some of the Appellants did not pass the preliminary examination. Although two preliminary examinations one, pursuant to the main notification and other pursuant to the supplementary notification, in view of the fact that the same provided for only one opportunity to all the candidates, viz., to appear at the main written examination and, thus, the same cannot be said to be arbitrary or unreasonable. The decision of the State to fill-up all the vacancies cannot be faulted with as the said steps were taken as one time measure. As the impugned GOMs were issued in terms of the proviso to Art. 309 of the Constitution of India, the validity of the impugned notifications cannot be questioned as thereby merely the age-bar has been relaxed.\n18.  It is not in dispute that, at the material time, examination was to be conducted in terms of the instructions issued by the State of Andhra Pradesh as contained in GOMs No. 570 dated 31.12.1997. The advertisement was also issued by the Commission pursuant to or in furtherance of the said notification, as would appear from Cl. 2(a) of the notification No. 21. It was categorically stated:\n\"The recruitment will be made to the vacancies notified only. There shall be no waiting list as per G.O. Ms. No. 81 and Rule 6 of APPSC Rules. The available break-up of vacancies is given in Annexure I. However, the breakup is subject to variation and confirmation by the Unit Officer, till such time as decided by the Commission and in any case, no cognizance will be taken by the Commission of any vacancies arising or reported after the completion of the selection and recruitment process, or, the last date as decided by the Commission, as far as this Notification is concerned; and any such subsequently arising vacancies will be further dealt with as per G.O. & Rule cited above.\"\n19.  Recruitment to the notified vacancies although was to be considered but the same was not sacrosanct as the Commission was given liberty to take into consideration the vacancies arising at a later date also. The jurisdiction of the Commission, however, was only restricted to the extent that it could not have taken cognizance of any vacancy arising or reported after the completion of the selection and recruitment process. What was to be considered as a subsequent vacancy, in terms of the said rules, thus, would be such vacancies which arose after completion of the selection and recruitment process or the last date as decided by the Commission.\n20.  It is not in dispute that all the candidates who had applied for the said post were having the requisite educational qualifications. In terms of the said advertisement, the selection process was to comprise in three parts, viz.,\n(i) a screening test for the purpose of admitting the candidates to the main written examination.\n(ii) Holding of main examination for those who would become entitled to be admitted to main written examination and, thus, were to be subjected to the process of selection\n(iii) the candidates who obtained minimum qualifying marks in the written examination, as may be fixed by the Commission at their discretion, were to be summoned for oral test in the ratio of 1:2 with reference to the number of vacancies duly following the special representation as laid down in General Rule 22 of Andhra Pradesh State and Subordinate Service Rules.\n21.  GOMs No. 200 dated 30th April, 2005 was issued by the State. Although the High Court has opined that the said GOMs was issued upon an independent decision taken by the State of Andhra Pradesh in that behalf, the recitals contained therein does not say so. The notification specifically referred to the interim direction issued by the Tribunal which was treated to be a general direction to admit all the candidates who had appeared in the preliminary examination. It was in the aforementioned situation only the qualifying marks were reduced from 66% to 61% to allow more candidates for the main examination for recruitment to Group 1 service with reference to the notification No. 21 of 2003 and the supplementary notification No. 6 of 2004. The State of Andhra Pradesh, however, did not stop there. As has been noticed hereinbefore, subsequent vacancies were also notified.\n22.  The State thereafter issued GOMs No. 164 dated 6.7.2004, having regard to the representations purported to have been received by it from the unemployed candidates to allow age concessions, considering that there had been long gap in issuing the notification, on taking a purported sympathetic view in the matter, stating :\n\"a) A supplementary notification will be issued for some more vacancies in addition to the vacancies already notified in various categories of posts under Group I Services, under Notification No. 21/2003 issued on 21-11-2003 by the A.P. Public Service Commission.\nb) For the candidates who could not appear for recruitment to Group I Services with reference to Advt. No. 21/2003 issued on 21.11.2003 by the A.P. Public Service Commission, as they were over and above the 33 years of age, age concession will be allowed duly reckoning the age limits prescribed in the rules, with effect from 1.7.1999 for the Notification No. 21/2003, and also for supplementary Notification to be issued. This age concession is only a one time measure and will not apply for further recruitments.\nThe candidates who were within the age limits, according to rules before the present concession raising the upper age limit and who could not apply for the notification issued on 21.11.2003 are also eligible to apply for the posts to be notified in the supplementary notification.\nc) The candidates for the main examination will be finalized by the Commission from the common list of candidates qualified both in the preliminary examination already held and the preliminary exam to be held as per the supplementary notification to be issued.\"\n23.  Ad hoc rule was made by the Governor of Andhra Pradesh in exercise of the powers conferred by the proviso appended to Art. 309 of the Constitution of India which reads as under :\n\"Notwithstanding anything contained in the Andhra Pradesh State and Subordinate Rules or in the Special Rules for any State Services or the Ad- hoc rules, the maximum age limit prescribed in the relevant special Rules for appointment by direct recruitment shall be reckoned as on 1-7-1999 instead of 1-7-2003 in respect of direct recruitment to Group. I Services Recruitment 2003 notified by the Andhra Pradesh Public Service Commission vide their Advertisement No. 21/2003/Supplementary notification.\nThis adhoc rule will apply only for the notification No. 21/2003/Supplementary notification of A.P. Public Service Commission.\"\nYet again, GOMs No. 133 was issued on 23.3.2005, in terms whereof the State allowed the candidates who had fulfilled the educational and age qualification, as per enhanced age limits eligible for recruitment to Group 1 service stating:\n\"Notwithstanding anything contained in the A.P. State and Subordinate Service Rules or in the Special Rules for any State Services or the adhoc rules, all the eligible candidates who are within the age limits in terms of the Orders issued in G.O. 164, G.A. (Ser.A) Department, dated 6-7-2004 and also those candidates who fulfill the Educational qualification as on the dte of Supplemental Notification  and who did not apply earlier are eligible to apply.\"\n24.  One of the contentions raised before us is as to whether the aforementioned three notifications are retrospective in nature. Submission of Mr. P.P. Rao is that they are only prospective. We, however, do not agree. GOMs No. 570 dated 31.12.1997 did not have any statutory flavour. The notifications in question were issued by the State in exercise of its jurisdiction under proviso to Art. 309 of the Constitution of India. In terms of the said provision, the State indisputably is entitled to issue a notification with retrospective effect. GOMs No. 200 indisputably affected those who had appeared at the examination as by reason thereof qualifying marks were reduced from 66% to 61%. Similarly, by reason of GOMs No. 164, the maximum age limit prescribed in the relevant special rules for appointment by direct recruitment was to be reckoned as on 1.7.1999 instead of 1.7.2003. Expressly, the adhoc rule made thereby was made applicable only in respect of the notification No. 21 of 2003 and the supplementary notification of the Commission. Similarly, in terms of GOMs No. 133 dated 23.3.2005 those candidates who were not eligible on the date of issuance of the first notification became entitled to avail the beneficient provision thereof as by reason thereof all those who had not applied earlier became eligible therefor.\n25.  The advertisement issued by the Commission was subject to GOMs No. 570. Administrative instructions contained in GOMs No. 570 did not contain any statutory rules. Any rule made subsequently by the State will override the administrative instructions to the extent it was repugnant thereto. It is, however, one thing to say that, a retrospective effect was given to the said rules but it is another thing to say that by reason thereof accrued or vested right of a candidate has been taken away.\n26.  We begin our discussions by taking into consideration what would be a vested right vis-'-vis an accrued right.\n27.  In Kuldeep Singh v. Govt. of NCT of Delhi [2006 (6) SCALE 588], this Court observed:\n\"What would be an acquired or accrued right in the present situation is the question.\nIn Director of Public Works and Another v. HO PO Sang and Others [(1961) AC 901], the Privy Council considered the said question having regard to the repealing provisions of Landlord and Tenant Ordinance, 1947 as amended on 9th April, 1957. It was held that having regard to the repeal of Sections 3A to 3E, when applications remained pending, no accrued or vested right was derived stating:\n\"In summary, the application of the second appellant for a rebuilding certificate conferred no right on him which was preserved after the repeal of sections 3A-E, but merely conferred hope or expectation that the Governor in Council would exercise his executive or ministerial discretion in his favour and the first appellant would thereafter issue a certificate. Similarly, the issue by the first appellant of notice of intention to grant a rebuilding certificate conferred no right on the second appellant which was preserved after the repeal, but merely instituted a procedure whereby the matter could be referred to the Governor in Council. The repeal disentitled the first appellant from thereafter issuing any rebuilding certificate where the matter had been referred by petition to the Governor in Council but had not been determined by the Governor.\"\nIn Saurabh Chaudri (Dr.) v. Union of India , it is stated:\n\"A statute is applied prospectively only when thereby a vested or accrued right is taken away and not otherwise.  A judgment rendered by a superior court declaring the law may even affect the right of the parties retrospectively.\"\nThe legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Art. 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise. By reason of the amended notifications, no change in the qualification has been directed to be made. Only the area of consideration has been increased. Those who were not eligible due to age bar in 2003 became eligible if they were within the prescribed age limit as on 01.07.1999. By reason thereof only the field of choice was enlarged. We would briefly consider the purport and effect thereof.\nInitially, there had been 301 vacancies. 223 vacancies were later on added. 1, 52, 000 applications were received pursuant to the first advertisement. About 51, 768 applications were filed after issuance of the impugned GOs. By reason of the subsequent GOs, however, those who had appeared in the first preliminary examination were debarred from appearing in the second examination. The reason therefor is not far to seek. The result of the first preliminary examination had not been announced. A combined result was announced both in respect of the first preliminary examination as also the second preliminary examination. Both the examinations were held to be a part of the same recruitment process. It may be that in relation thereto different question papers were set or different examiners examined them but it must be borne in mind that the said examinations were held only for the purpose of elimination of candidates. The result of the said examination was not to affect the ultimate selection process.\nWe may at this juncture examine some of the decisions whereupon reliance has been placed by the learned counsel.\nIn Umesh Chandra Shukla v. Union of India and Others , the candidates were admitted to the viva-voce test by the Selection Committee. It is at that stage names of certain candidates, whose names had not been included in the Select List, were included in the final list of the Selection Committee and the names of certain candidates who had been interviewed by the Selection Committee had been omitted therefrom This Court in the aforementioned fact situation opined:\n\"The area of competition which the 27 candidates who had been declared as candidates eligible to appear at the Viva Voce examination before such moderation had to face became enlarged as they had to compete also against those who had not been so qualified according to the Rules. The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra marks by way of moderation. In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the Viva Voce test should be the basis for selection\"\nThis Court found a blatant violation of Rule 16 of the Delhi Judicial Service Rules, 1970 which had limited the scope of competition. In the instant case, the scope of the competition has not been limited by enlarging the field of consideration.\nIn N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others , this Court was concerned with a situation where the advertisement expressly stated that selection would be made in accordance with the existing rules or government orders. In that case, it had categorically been stated that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection. Once, however, he is found to be eligible and he is otherwise qualified in accordance with the relevant rules, he acquires a vested right of being considered for selection in accordance with the rules as they existed.\nWith a view to understand the implication of the ratio laid down in the said case, we may notice the factual matrix obtaining therein. The Appellants therein were in service of the State Government. They had applied for selection pursuant to the said advertisement. Written examination and viva-voce test had been held. The list of successful candidates was finalized. It was also notified in Karnataka Gazette. An additional list of successful candidates had also been finalized. However, the said list was not approved by the State on the ground that its reservation policy has not been made in accordance with the directions and procedures issued subsequently, i.e., on 9th July, 1975 whereas the advertisement was issued on 23rd May, 1975. The matter relating to reservation was provided under the statutory rules.\nThe direction of the State to issue a fresh list on the Commission, therefore, came to be questioned. It was in the aforementioned situation, the law was laid down to the effect that the Appellants therein acquired some right for being considered for selection in view of the rules as they existed on the date of advertisement. However, we may notice that no law in absolute terms was laid down therefor. This Court categorically held:\n\"If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders\"\nIn that case it was held that the Government Order dated 9th July, 1975 made the Government's intention clear that the revised directions which were contained therein would not apply to the selections in respect of which advertisement had already been issued and, therefore, the mode of selection as contained in Annexure 2 of the said Order was not applicable to the selection for filling 50 posts of Tehsildars pending before the Commission. A list, thus, validly prepared, could not have been directed to be changed because of a policy adopted by the State which was not applicable.\nIn Shankarsan Dash (supra), this Court stated the law in the following terms:\n\"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.\"\nWhat is, therefore, required to be seen is as to whether the action of the State is arbitrary.\nStrong reliance has been placed by Mr. P.P. Rao on Hoshiar Singh v. State of Haryana and Others  wherein it was observed:\n\"The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same\"\nSelection in that case was for police service. Selection had been made in excess of requisition in violation of Rule 12.6 of the Punjab Police Rules, 1934. Standard of physical fitness was relaxed by the Selection Committee which power in terms of the advertisement it did not possess. There was nothing on record to show that the Director General of Police had sent any further requisition apart from the 8 posts for which the notification was issued and it was in that situation this Court opined that the Board on its own could not recommend names of 19 persons for the selection and recommendation of larger number of persons than the posts for which requisition was sent.\nIn Gopal Krushna Rath (supra), the question which arose for consideration was in regard to the qualification of the Appellant for being appointed to the post of Professor at the relevant time. On fact it was held that the Appellant did possess the requisite qualification which was in accordance with the rules / guidelines then in force. He had also obtained higher marks than the original Respondent at the selection. It was in the aforementioned situation, this Court held that the subsequent change in the requirements regarding qualification by the University Grant Commission would not affect the process of selection which had already commenced. In this case, however, the private Respondents concerned cannot be said to have no qualification on the date of advertisement.\nStrong reliance has also been placed by Mr. P.P. Rao on Maharashtra State Road Transport Corpn. and Others v. Rajendra Bhimrao Mandve and Others. In that case, the rule of game said to be involved was in terms of circular issued by the State. No statutory rule or requisition was governing the field. A question arose as to which circular would apply. The contention of the Respondent was that the circular dated 4.4.1995 would apply providing for assignment of 87=% marks for written/ trade test and 12=% for the oral test (personal interview) which was accepted having regard to the fact that the driving test had been conducted on 27.11.1995 and, therefore, the circular letter which was issued on 24.6.1996 providing for a different standards was held to be not applicable, as on fact it was found that the other circulars issued have no application in respect of the driving tests held for appointment of the drivers. In the aforementioned fact situation, it was opined:\n\"Therefore, the High Court cannot be said to be correct in holding that the circular order dated 24- 6-1996 is illegal or arbitrary or against the orders of the State Government or the resolution of the Board of the Transport Corporation. Instead, it would have been well open to the High Court to have declared that the criteria sought to be fixed by the circular dated 24-6-1996 as the sole determinative of the merit or grade of a candidate for selection long after the last date fixed for receipt of application and in the middle of the course of selection process  cannot be applied to the selections under consideration and challenged before the High Court\"\nThe said decision is, thus, also not an authority for the proposition that a subsequent circular would not per se be illegal or invalid. The court in all situations of this nature is required to consider only the applicability thereof.\nIn Union Public Service Commission v. Gaurav Dwivedi and Others , this Court held:\n\"We are unable to agree with this contention. Once it is considered, and in our opinion rightly so, that the number of vacancies to be filled could be reduced then the rules do not stipulate that the entire process of examination must be completed, including the conduct of the interview/viva voce, on the basis of the original number of vacancies which were notified. When before the declaration of the result of the main examination, the number of vacancies have been determined then it was only proper that candidates who are twice the number of revised vacancies are called for interview and not more. It is to be borne in mind that this is a competitive examination with the number of vacancies being 470 only, 940 candidates were required to be called for interview. By calling more than this number may result in prejudice to one or more of the candidates who were in the position of 940 or above. For example, it is possible that a candidate at Serial No. 941, who is not entitled to be called for interview, if he is permitted to be called for interview, may secure higher marks in the viva voce and oust those candidates who were higher in rank to him in the merit list. The High Court, in our opinion, was not right in permitting more than 940 candidates being called for interview/viva voce.\"\nWe may, however, notice that in Ashok Kumar Sharma and Another v. Chander Shekher and Another , advertisement was issued on 9.6.1982. The last date of submission of applications was 15th July, 1982. The Appellants and the Respondents by that date had submitted applications. The Appellants, however, had appeared for B.E. Civil Examination. Its results, however, was not published. Rule 37 of the J&K Public Service Commission Business Rules reads, thus:\n\"Applications of candidates who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared up to the date of making of the application, may be entertained provisionally, but no such candidate shall be permitted to take the interview if he is declared as having failed in the examination or if the results are not available on the date the viva-voce test is held.\"\nIn terms of the said Rules, therefore, the Appellants were found to be eligible although he did not pass the examination on the date thereof. It was in that situation, the Appellants were held to be eligible.\nIn this case, we are dealing with a peculiar situation. The Government took a sympathetic view about the fate of those candidates who could not be accommodated earlier. Such consideration was made to broad-base the field of selection in view of the fact that since 1997 there had been no further recruitment. It is also not in dispute that the vacancies were notified from time to time as they were brought to the notice of the concerned department by the other departments.\nThe authority of the State to frame rules is not in question. The purport and object for which the said notifications were issued also cannot be said to be wholly arbitrary so as to attract the wrath of Art. 14 of the Constitution of India. The Appellants herein no doubt had a right to be considered but their right to be considered along with other candidates had not been taken away. Both the groups appeared in the preliminary examination. Those who had succeeded in the preliminary examination were, however, allowed to sit in the main examination and the candidature of those had been taken into consideration for the purpose of viva-voce test who had passed the written examination.\nThe question, however, remains as to whether the State could reduce the cut-off marks. If the cut-off mark specified by the State is arbitrary, Art. 14 would be attracted. The Tribunal did not have any jurisdiction to pass an interim order directing reduction in the cut-off mark. The cut-off mark at 66% was fixed having regard to the ratio of the candidates eligible for sitting at the written examination at 1:50. An interim order as is well- known is issued for a limited purpose. By reason thereof, the Tribunal had no jurisdiction to grant a final relief.\nMoreover, the Tribunal could not have directed the Commission to do something which was contrary to rules. An interim order is subject to variation or modification. An interim order would ordinarily not survive when the main matter is dismissed. The Commission also did not intend to abide by the said directions. It wanted the State to pass an appropriate order. It was, pursuant to or in furtherance of the said desire of the Commission as also the direction of the Tribunal as contained in its interim order dated 6.1.2005, GOMs 200 was issued. The said Government Order was, thus, not issued by the State of its own. There was no independent application of mind. The statutory requirements for passing an government order independent of the interim directions issued by the Tribunal were wholly absent.\nIn Gaurav Dwivedi (supra), this Court categorically held the possibility that a person who was otherwise entitled to be called for an interview may lose its chance if the others who were not eligible are called for interview.\nThe standard was fixed as 1:50. The Commission came to the conclusion, having regard to the results published on written examination, that 66% should be the cut-off mark. It need not have been 66%. If the candidature of more candidates was to be taken into consideration, the same would mean that the State shall give a go by to principle of selection fixed by it, viz., 1:50. If the submission of the Commission and consequently, the State is to be accepted that the ratio should be 1:50, the same could not have been reduced to 10:90. A violation of that rule would, in our opinion, be arbitrary.\nIn total 558 vacancies were notified. Thus, only 27, 900 candidates could have been called for main written examination on the basis of the norms fixed by the State itself. However, the actual number of candidates who passed the examination are said to have been 50, 726. Although, actually it is stated that 32, 056 candidates appeared. Thus, indisputably, a large number of candidates who had been allowed to appear at the examination were evidently permitted to do so in violation of norm of 1:50, as was specified by the State. The aforementioned rule could not have been relaxed. It did not have any rational basis. 66% cut-off mark was not fixed by the Commission. It was arrived at by the Commission in view of the marks secured by the respective candidates on applying the ratio of 1:50. Once a person falls beyond the said ratio, he was not qualified. He was not to be considered any further. The State and the Commission had themselves fixed three different stages of selection process which were required to be adhered to.\nWe may notice at this stage Suraj Parkash Gupta and Others v. State of J&K and Others , wherein it was held:\n\"The result of the discussion, therefore, is that the wholesale regularisation by order dated 2-1-1998 , by way of implied relaxation of the Recruitment Rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, the power under Rule 5 of the J&K (CCA) Rules, 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.\"\nRelaxation can be given only if there exists any provision therefor in the Rules. GOMs No. 200 dated 30th April, 2005, in our opinion, must fall having regard to the vacation of interim order by the Tribunal and consequent dismissal of the original application. It will bear repetition to state that, while issuing the same, the Government did not apply its own mind. Only those candidates who came within the purview of the rule existing theretobefore could have been subjected to further selection process.\nFor the foregoing reasons, we are of the opinion that while GOMs No. 164 and 133 are not invalid, GOMs No. 200 is. The Commission was, thus, statutorily enjoined to interview only such candidates who had passed the written examination in 1:50 ratio. Only upon shortlisting the said candidates, the interview can be held at the ratio of 1:2.\nTo the aforementioned extent, the Commission must undertake selection process afresh. We, however, make it clear that those who have not passed the written examination would not be entitled to be considered in terms of the aforementioned directions. The appeals are allowed to the aforementioned extent. No costs.\nAppeals partly allowed.\n"}
+{"id": "mRtv5XqhPx", "title": "", "text": "Kendriya Vidyalaya Sangathan and Others v Sajal Kumar Roy and Others\nSupreme Court of India\n\n19 October 2006\nAppeal (civil) 4569 of 2006 (Arising out of S.L.P. (C) No.3657 of 2005)\nThe Judgment was delivered by: S. B. Sinha, J.\n1. Leave granted.\n2. Appellant before us is a society registered under the Societies Registration Act. It runs a chain of schools known as Kendriya Vidyalayas all over the country. An advertisement was issued in respect of eight vacancies which arose in the cadre of Lower Division Clerk (LDC) in the Silchar region. Respondent applied for recruitment to the said post pursuant to or in furtherance of the said advertisement. Written and typing tests were held. As per Kendriya Vidyalaya Sangathan (Appointment, Promotion, Seniority) Rules, 1971 (for short, 'the Rules), the age limit prescribed therefor was 18-25 years as on 30.6.1994, which was, however, relaxable.\nRespondents are said to be near relatives of the employees of the Kendriya Vidyalaya Sangathan Regional Office, Silchar. The candidates who were over-aged were also permitted to appear at the examination in contravention of the Rules. Certain irregularities were also committed in the matter of conducting typing test. Higher authorities of the school were moved for cancellation of the recruitment of the LDCs.\n3. An Original Application was filed by Respondents before the Central Administrative Tribunal, Gauhati Bench, praying for a direction upon Appellants to relax the age of the candidates. By an order dated 15.3.2001, the Tribunal directed Appellants to do so. Aggrieved by and dissatisfied therewith, a writ petition was filed by Appellants before the Gauhati High Court. By reason of the impugned judgment, the High Court directed :\n\"In the facts and circumstances aforesaid, we hold that direction, as issued by the Tribunal, could not have been given for appointment of the private respondents, until and unless the Appointing Authority exercises the power of relaxation of age limit. In view of the above, we direct the Appointing Authority to consider the case of respondents herein, for relaxation of the age limit within a period of 3 (three) months from the placement of a certified copy of this order before the Appointing Authority, and on relaxation of the age limit, include their names in the select list and thereafter issue appointment orders to them, in accordance with law on the basis of the merit of the candidate.\"\n4. It is not in dispute before us that Respondents were over-aged on the relevant date. The particulars of Respondents, who had filed applications pursuant to the said advertisement, are as under :\n5. The short question which arises for consideration before us is : Whether, in terms of the extant Rules, age of the general candidates was relaxable?\n6. Mr. S. Rajappa, learned counsel appearing on behalf of Appellants would submit that the High Court committed an error in directing consideration of relaxation of age bar in respect of Respondents. The learned counsel would further submit that the regional office committed illegalities in allowing Respondents to appear at the written and typing examination, although they were admittedly over-aged and, thus, were not eligible for appointment.\n7. Mr. Amitesh Kumar, learned counsel appearing on behalf of the Respondents, on the other hand, would support the judgment.\n8. The Tribunal, although, noticed that Respondents crossed the age bar, but opined that keeping in view the fact that the relaxation of age was specifically referred to in the advertisement, they were otherwise eligible therefor. The Tribunal in support of its finding referred to a purported letter dated 29.3.1995 issued by Assistant Commissioner, Administration, KVS to Assistant Commissioner, KVS Silchar, which is in the following terms:\n\"I am to invite a reference to your office letter No.F.2-16/94-KVS (SR) dated 15.03.1995 and to state that the process of interview/selection may kindly be completed as per the advertisement dated 28th May 3rd June 1994 and subsequent clarification thereon published in the Employment News dated 21-27 January 1995. After completion of the selection if any candidate, with overage selected by virtue of the concession at para 8(b) & (c) of the advertisement, case may be taken up for relaxation of upper age prior to issue of offer of appointment.....\"\n9. In the aforementioned situation, it was held:\n\"The action of the respondents in not issuing appointment letters to the applicants appears to be arbitrary. The applicants on their merits qualified for appointment. The age relaxation is being allowed and can be relaxed by the organization. As irregularity in the selection process has not been established the applicants request for issue of appointment letters is justified. The respondents are directed to reconsider the applicants case for appointment. This process should be completed within a period of 3 months from the date of receipt copy of this order.\"\n10. It is not in dispute that Appellants have framed rules for recruitment known as Education Code for Kendriya Vidyalayas. Art. 45 of the said Code provides for age limit in the following terms:\n\"45. Age Limits\nThe following upper age limits have been prescribed for recruitment to the posts :\nThe upper age limits are relaxable in the case of special categories as follows :\n(i) Scheduled Caste/Tribe - 5 years\n(ii)Retrenched Central Govt. Period of their employees including service in Civil/ defence personnel. Military Depart- ments increased by 3 years.\nThe appointing authority can, in his discretion, relax these age-limits in deserving cases on the recommendation of the Appointments Committee/ Selection Committee.\"\n11. Respondents are not members of the Scheduled Caste or Scheduled Tribe. Age limit is prescribed for appointment to the general category of employees. The upper age limit for appointment to the post of LDC is 25 years. The advertisement also says so. the Rules, as noticed hereinbefore, are in two parts. The first part talks about the age limit. The second part provides for relaxation. Such relaxation can be granted for the purpose specified, i.e., in favour of those who answered the descriptions stated therein. Relaxation of age limit even in relation to Scheduled Castes and Scheduled Tribes candidates or the Retrenched Central Government employees, including the defence personnel, is, however, not automatic.\nThe appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the Rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the Rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the Rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Art. 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions.\n12. In Food Corporation of India & Ors. vs. Bhanu Lodh & Ors. [(2005) 3 SCC 618 2005 Indlaw SC 165], this Court stated the law thus:\n\"....While the maximum age prescribed under the Recruitment Rules is 35/40 years for the posts concerned, departmental candidates in the age of 52-53 years were proposed to be appointed. Even assuming that there is a power of relaxation under the Regulations, we think that the power of relaxation cannot be exercised in such a manner that it completely distorts the Regulations. The power of relaxation is intended to be used in marginal cases where exceptionally qualified candidates are available. We do not think that they are intended as an \"open sesame\" for all and sundry. The wholesale go-by given to the Regulations, and the manner in which the recruitment process was being done, was very much reviewable as a policy directive, in exercise of the power of the Central Government u/s. 6(2) of the Act.\"\n13. Yet again in Dr. Ami Lal Bhat vs. State of Rajasthan & Ors. [(1997) 6 SCC 614 1997 Indlaw SC 2125], the law is stated in the following terms:\n\"....In other words, what is contended is that if on the date when the vacancy occurred, the candidates were within the maximum age prescribed by reference to the cut-off date, then if the advertisement is delayed, their age should be considered with reference to the cut-off date of 1st January following the date of occurrence of vacancy. For example, if the vacancy has occurred on 1st of April of a given year, and the applicant would be within the maximum age on the 1st of January of the following year, then such a candidate will be considered as eligible even if the advertisement is issued not in April of that year but say February of the following year. All the candidates will get age relaxation of one year.\nIn our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum of age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.\"\n14. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. In the facts and circumstances of the case, there shall be no order as to costs.\nAppeal allowed.\n"}
+{"id": "CplTXJUk13", "title": "", "text": "Surjit Singh v State Of Punjab And Others\nSupreme Court of India\n\n31 January 1996\nC.A. No. 2489 of 1996\nThe Judgment was delivered by: M. M. Punchhi, J.\nLeave granted.\n1.  Is the hypothetical claim of the appellant for medical reimbursement valid in the facts and circumstances of thiscase is the straight question which falls for determination in this appeal.\n2.  The appellant, Surjit Singh (now retired) while postedas a Deputy Superintendent Police, Anandpur Sahib, Distt. Roper, Punjab, developed a heart-condition on 22-12- 1987 and that very day went on a short leave extending it uptill 10-1-1988, on medical grounds. It remains unclarified on the record of this case as to what steps the appellant took thereafter to meet his ailment. However, six months later he obtained leave from his superiors from 15-6-1988 to 8-9-1988 and went to England to visit his son. It is the case of the appellant that while in England, he fell ill due to his heart problem and as an emergency case, was admitted in Dudley Road, Hospital Brimingham. After diagnosis he was suggested treatment at a named alternate place. Thus to save himself the appellant, got himself admitted and operated upon in Humana Hospital, Wellington, London for aBye-Pass Surgery. He claims to have been hospitalised from 25-7-88 to 4-8-88. A sum of Rs.3 lacs allegedly was spent on his treatment at London, borne by his son.\n3.  On return to India, the appellant on 6-11-1988 submitted a Bill for medical reimbursement claiming that very sum, in the office of the Senior Superintendent of Police, Ropar which was forwarded to the Director General of Police, Punjab, Chandigarh and the Home Department of the State of Punjab. Some correspondence took place between the appellant and the department. As per office requirements some more certificates were sent by the appellant in support of his case. Vide letter dated 21-1-93, the Department however expressed its inability to sanction the bill for medical reimbursement.\n4. This led to the appellant moving the High Court of Punjab and Haryana at Chandigarh in writ jurisdiction. As required by the High Court, the State responded by filing its counter affidavit. At the time of hearing the Assistant Advocate General for the State of Punjab made a statement to the effect that the State was ready to pay to the appellent the expenses incurred for Bye- pass Surgery and Angiography on the rates prevalent in theAll India Institute of Medical Sciences, New Delhi (for short 'AIIMS'). Applying that yardstick, as suggested, a sum of Rs.30,000/- on account of Bye-Pass Surgery and a sum of Rs.10,000/- for Angiography was thus ordered by the High Court to be paid to the appellant within six weeks. The writ petition on 18-4-1995 was disposed of on such terms. The said sum, as claimed by the State stands paid to the appellant.\n5.  The appellant challenging the orders of the High Court disposing of the writ petition in such manner now pitches before us his claim to payment on the basis of rates prevalent in the Escorts Heart Institute and Research Centre (for short Escorts'), reducing his high claim to the expenses incurred for medical treatment in London. There is an inkling to that effect in the appellant's rejoinder affidavit in the High Court but it appears that this aspect of the matter was not dilated upon. The claim for such adoption of rates is now made in reiteration.\n6.  The parties counsel agree that there is a policy regarding reimbursement of medical expenses framed by the State on 25-1-1991, which has duly been circulated in all the wings/offices of the State. It's operative portion, so far relevant, is reproduced below :\n\"Subject : Re-imbursement of medical expenses - policy regarding Sir/Madam, In supersession of Punjab Gover nment letter No.7/7/85- 3HBV/13855 dated 27-5-1987, the resident of India is placed to lay down the following policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than the hospitals of the Govt. of Punjab (Both outside and in the State of : Punjab):\n(i) All categories of employees whether retired or serving of All India Service/State Govt. Judges of Punjab and Haryana High Court/M.L.As/Ex M.L. As will be governed by this policy.\n(ii) The person who is in need of medical treatment outside India or in any hospital other than the Govt. of Punjab (both outside and in the State of Punjab) as the case may be may make an application for getting treatment in these hospitals directly to the Director Health and Family welfare 2 months advance, duly recommended by the C.M.O./Medical Supdt. indicating that the treatment for the disease mentioned is not available in the Hospital of the Govt. of Punjab. In case of emergency duly authenticated by C.M.O./Medical Supdt. the application can be made 15 days in advance.\n(iii) Director, Health and Family Welfare, Punjab will place the application of the concerned employee before the Medical Board within 15 days on the receipt of application. In case of emergency, if immediate meeting of Medical Board, cannot be convened, such application may be circulated to all the members of the Medical Board and decision taken thereof.\n(iv) The Medical Board shall consist of the following officers:\n(i) Director, Health and Family Welfare, Punjab - Chairman\n(ii) Director, Education, Punjab Research and Medical - Member\n(iii) Specialist of the desired line of treatment from PG1 Chandigarh or AIIMS, New Delhi - Member\n(iv) Senior most specialist from Medical Colleges, Patiala, Amritsar and Faridkot - Member\n(v) Dy. Director/Asstt. Director, I/c of P.M.H. Branches office of the Director Health and Family Welfare - Member Secy\"\n(vi) xxxx\n(vii) xxxx\n(viii) xxxx\n(ix) xxxx\n(xi) xxxx\n(xii) The Health Deptt. in\nconsultation with Director Research & Medical Education will prepare a list of diseases for which specialised treatment is not available in Punjab Govt. Hospitals and indicate the Institutions/Hospitals/Clinics of repute where necessary treatment is available. This list will, however, be subject to variation in future.\n7.  On 8-10-1991, the above policy has further been explained in so far as the choice of the hospitals is concerned:\n\"Policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than those of the Government of Punjab, both within and outside he State was laid down.\nHowever, as per the 12th item of hese instructions, a list of those diseases for which specialised treatment was not available in the Government hospitals was to be prepared in addition to identifying medical institutions/hospitals/clinics of repute where such specialised treatment was available.\"\n8.  The Government has now prepared a list of those diseases for which the specialised treatment is not available in Punjab Government hospitals but is available in certain identified private hospitals, both within and outside the State. It has, therefore, been decided to recognise these hospitals for the treatment of the disease mentioned against them in the enclosed list for Punjab Government employees/pensioners and their dependents. The terms and conditions contained in letter under reference will remain applicable, Government can, however, revise the list, in future.\n9.  Therefore it has been decided to recognise those hospitals for the treatment of diseases mentioned against them in the enclosed list issued with the concurrence of the Finance Department dated 11-9-1991 which is as under: Open Heart Surgery: Escorts Heart Institute, New Delhi; Christian Medical Colloge, Ludhiana; Appollo Hospital, Madras.\n10.  The purport of the above policy is that the Escorts stands duly recognised by the State for treatment of its employees for open heart surgery, apart from the other two institutions i.e. Christian Medical College, Ludhiana and Appollo Hospital, Madras. The Finance Deptt's concurrence signifies its willingness to entertainment reimbursement bills in variables depending on where treatment is received.\n11.  There has been a factual dispute as to whether the appellant went to the Dudley Road Hospital, Brimingham as an emergency case and whether he was operated upon in Humana Hospital, Wellington, London in that condition. Except for the bare word of the appellant, no documentary evidence in support or such plea had been tendered by him before the High Court, or even before us to show that his was a case of emergency requiring instant operation and treatment. The State of Punjab on the other hand has countered before the High Court, as also here, that the case of the appellant was not that of an emergency but a planned visit to England to have himself medically treated under the care of his son, without submitting himself as per policy, for examination before the Medical Board. This plea of the appellant may have been required to be examined in thorough detail had he stuck to his original claim for medical expenses incurred in England.\n12. Since he has now brought down his claim to the rates prevalent in the Escorts in place of that of AIIMS, further reference to emergency treatment etc. would not be necessary. It would hypothetically have to be assumed that the appellant was in India, had not subjected himself to Medical Board examination, and had gone on his own to the Escorts and got himself operated upon for Bye-Pass Surgery. The point to be considered is whether his claim is admissible under the policy keeping in view the string of judgments of the High Court in that regard, as well as on the factum that the Stats has already conceded re- imbursement to the appellant on hypothetical basis as if treated in AIIMS.\n13.  The policy, providing recognition for treatment of open heart surgery in the Escorts, specifically came to be examined by a division bench of the Punjab and Haryana High Court at Chandigarh in C.W.P. No.13493 of 1992 titled as Sadhu R. Pall vs. State of Puniab throuqh Secretary Health and Family Welfare Punjab, Civil Secretariat. Chandigarh and others decided on 6-10-1993, wherein the claim of the then writ petitioner to medical reimbursement was accepted when in order to save his life he had got himself operated upon in the Escorts, and the plea of the State that he could be paid rates as prevalent in the AIIMS was rejected. Special Leave Petition No.22024 of 1995 against the said decision was dismissed by this Court on 2-2-1994, The other judgments of the High Court following the decision in Sadhu R. Pall's case are :\n(1) C.W.P. No.18562 of 1992 decided on 10-5-95 titled K.L.Kohil vs. State of Punjab and others (DB) :\n(2) C.W.P. No.260 ot 1995, decided on 30-5-1995 titled avi Mohan Duggai vs. State of Punjab and Others (DB);\n(3) C.W.P. No.5669 of 1994 decided on 4-9-94 titled Prem Singh Gill vs. State of Punjab and Others 2006 Indlaw PNH 3997;\n(4) 1995 (III) Punjab Law Reporter 529 titled Tarlok (Chander vs. The State of Punjab etc. (SB); and\n(5) 1995 (III), Punjab Law Reporter 682 titled Mrs. Surya Pandit vs. State of Punjab and others (SB)\n14.  All the aforementioned judgments or the High Court have a common factual basis, i.e. each recipient of the relief from the High Court had in fact been treated in the Escorts and had borne expenses. The other common factor is that the High Court believed each writ petitioner pleating emergency to go to Escorts in the given fact situation. But this factor by itself is not the core of the views of the High Court. Hypotheticallys the appellant says, he too may be considered to have been treated in the Escorts, more so, when he is being treated to have been operated upon in AIIMS without actually having been so and had a choice to go either to the AIIMS or Escorts or Christian Medical College, Ludhiana or Appollo Hospita, Madras. The appellant in these circumstances cannot be said to be far too wrong in choosing the Escorts amongst the three recognised hospitals for open heart surgery available in the North, the AIIMS being governmental and the other two being private hospitals. The division bench in Sadhu R. Pall's case observed as follows :\n\"The respondents appear to have patently used excuses in refusing full reimbursement, when the factum of treatment and the urgency for the same has been accepted by the respondents by reimbursing the petitioner the expenses incurred by him, which he would have incurred in the AIIMS New Delhi. We cannot loose sight of factual situation in the AIIMS New Delhi, i.e. with respect to the number of patients received there for heart problems. In such an urgency one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some Government medical institute. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved.\"\n15.  We share the views afore-expressed. It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life ensbrined in Art. 21 of the constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to versus 17 18, 20, and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine: --\n16.  The appellant therefore had the right to take steps in self preservation, He did not have to stand in queue before the Medical Board the manning and assembling of which, bare- facedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternate hospital as per policy. When the State itself has brought the Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to the Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellantt the rates admissible as per Escorts.\n17. The claim of the appellant having been found valid, the question posed at the outset 15 answered in the affirmative. Of course the sum of Rs.40,000/- already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs.\nAppeal allowed\n"}
+{"id": "piAMozPf8e", "title": "", "text": "Confederation of Ex-Servicemen Associations And Others v Union of India And Others\nSupreme Court of India\n\n22 August 2006\nW.P. (Civil) 210 of 1999\nThe Judgment was delivered by: C. K. Thakker, J.\n1.  This petition u/art. 32 of theConstitution is filed as Public Interest Litigation (PIL) by petitioner- Confederation of ex-serviceman Associations for an appropriate writ directing the respondent-Union of India to recognize the right of full and free medicare of ex- servicemen, their families and dependents treating such right as one of the fundamental rights guaranteed under the Constitution of India.\n2.  A prayer is also made to direct the respondents to take necessary steps to ensure that full and free medicare is provided to ex-servicemen, their families and dependents on par with in-service defence personnel. A further prayer is also made to extend such medicare for all diseases including serious and terminal diseases, even if treatment for those diseases is not available at Military Hospitals.\n3.  The case of the petitioner is that there are certain ex-servicemen Associations which have formed a Confederation in furtherance of common cause for welfare of ex-defence personnel.\nThey are;\n(i) Air Force Association;\n(ii) India Ex-services League;\n(iii) Naval Foundation;\n(iv) Disabled War Veterans (India); and\n(v) War Widows Association.\n4. Aims and objects of the Confederation have been set out in the Memorandum of Understanding (MOU) produced at Annexure P-1. According to the petitioner, there are approximately 15 lakhs ex-servicemen in the country alongwith 45 lakhs dependents and family members. The petitioner has no information regarding medical facilities provided to ex-servicemen prior to the Second World War (1939-44). After the Second World War, however, certain information is available.\n5.  A book edited by Mr. Bishweshwar Dass was published titled \"Combined Inter-services : Historical Section : India and Pakistan\", wherein it has been stated that the Government had accepted full responsibility for medicare of disabled ex-servicemen as also for their rehabilitation. Disabilities, which were categorized, were as follows:\n(i) Loss of limb or use of limb;\n(ii) General medical and surgical disability;\n(iii) Loss of speech;\n(iv) Deafness;\n(v) Blindness and material impairment of vision;\n(vi) Pulmonary Tuberculosis;\n(vii) Mental diseases.\n6.  The petitioner further stated that in 1962, more medical facilities were provided to ex-army personnel. In 1983, regulations were framed known as Regulations for Medical Services of Armed Forces which restricted entitlement to disability for which pension had been granted. No treatment was authorized for serious diseases, like pulmonary tuberculosis, leprosy and mental diseases even if such diseases were attributable to Army Services if treatment of such diseases was not ordinarily available from service sources. According to the petitioner, various Committees were constituted to examine the issue as to availability of medical facilities to members of Armed Forces.\n7.  In 1984, a High Level Committee headed by the then Rajya Raksha Mantri Shri K.P. Singh Deo was set up which conducted thorough study of the problems of ex-defence personnel for the first time. The Committee recommended enhancement of facilities and improvement of medical services to ex-servicemen. Between 1986 and 1990, several steps had been taken in the direction of extending more benefits to ex-servicemen through various committees and commissions, such as, Dharni Committee (1986), CDM Study Report (1987), Report on Army Logistics Philosophy (1987), Verma Committee (1988), Narsimhan Committee (1990), Vijay Singh Committee (1990), etc. In 1993, Lt. Gen. N. Foley Committee again examined the problem of medicare to ex-servicemen. It noted with concern the manner in which ex-servicemen had been treated in providing medical facilities which were shocking.\n8.  It observed that ex-servicemen were virtually neglected by the Government. It felt that there was a feeling of frustration in ex-servicemen. It, therefore, suggested that there should be no discrimination of treatment between inservice personnel and ex-servicemen.\n9. The Committee made certain recommendations both on long term basis as well as on short term basis. Again, the Fifth Pay Commission examined the medical and other facilities to pensioners of the Central Government employees and also to ex-servicemen.\n10.  The Commission noted the expenditure incurred on various categories of Central Government employees, and after examining the entire issue, recommended that the Ministry of Defence should embark at once for expansion of medical facilities to ex- servicemen.\n11.  It suggested creation of ex-servicemen wards in Civil Hospitals in liaison with State Governments.\n12. It also recommended Ministry of Health and Family Welfare to set up Veteran's Hospitals where a concentration of civil and military pensioners existed. In addition, it proposed a medical allowance of Rs.100 per month for ex-servicemen living in rural areas who could not avail themselves of military/civil hospital facilities. According to the petitioner, the Pay Commission missed the basic thrust of the requirement of providing free and full medicare to ex-servicemen.\n13.  Since the Regulations relating to medical services to Armed Forces expressly excluded the treatment at Government hospitals to ex-servicemen for serious diseases like pulmonary tuberculosis, leprosy and mental diseases, any amount of facilities would not be sufficient to ex- servicemen suffering from such diseases. The\n14. Regulations were also silent about modern serious and terminal diseases like AIDS, Cancer, etc. and no provision was made for expenses on essential treatments like bypass surgery, laparoscopy, endoscopy, etc. The petitioner has also stated that after 1997, various efforts were made by the member-Associations to get more benefits to ex-servicemen.\n15.  On June 12, 1997, Air Marshal D.S. Sabhikhi, Senior Vice President of Air Force Association submitted a detailed representation to the Defence Ministry requesting to take action on war footing for setting up Veteran's Hospitals, augmentation of Special Medical Inspection Rooms (MIRs), Dental Centres, etc., for ex-servicemen. Brig. Dal Singh (Retd.), President of Indian Ex-services League also wrote a letter to the Defence Secretary requesting him to intimate the actions taken by the authorities on various judgments of this Court. Similar representation was made by Vice Admiral S.K. Chand (Retd.), President of Navy Foundation, Delhi. Attention of the Government was invited by political leaders and reference was made to letters of Shri B.K. Gadhvi, Member of Lok Sabha to the Defence Minister as also by Shri Jaswant Singh, another M.P. The petitioner has referred to letters by Air Chief Marshal S.K. Kaul (Retd.) in 1997-98 and by Air Marshal D.S. Sabhikhi, Senior Vice President of Air Force Association.\n16.  The grievance of the petitioner is that though several attempts had been made by the Associations, the Government of India had never taken the matter seriously as regards the medical services to be provided to ex-servicemen. Though they have a valuable right of full and free medicare, which is a fundamental right, no concrete and effective steps had been taken by the respondents which constrained them to approach this Court by invoking Art. 32 of the Constitution. According to them, keeping in view the services rendered by ex-defence personnel and the diseases sustained by them, they are entitled to necessary medical facilities.\n17.  It was also their case that free and full medical facilities is part and parcel of their fundamental rights guaranteed by Part III of the Constitution as also covered by Directive Principles in Part IV of the Constitution. In several cases, this Court has held that such facilities must be provided to Government employees, past and present. According to the petitioner, such facilities are provided to Government employees and also to ex- servicemen. Refusal to extend similar medical benefits to ex-defence personnel is thus arbitrary, discriminatory, unreasonable and violative of Articles 14, 16, 19 and 21 of the Constitution.\n18.  The petition came up for preliminary hearing before a two Judge Bench on May 10, 1999 and the following order was passed:\n\"Issue Rule.\nReliance is placed upon paragraph 25 of the decision of a three Judge Bench in Consumer Education and Research Centre and Ors. v. Union of India and Ors. (1995) 3 SCC 42 1995 Indlaw SC 1501. Since we are, prima facie, disinclined to accept the correctness of the broad observations in that paragraph, the matter shall be placed before the Bench of five learned Judges.\"\n19.  From the above order, it is clear that the two Judge Bench had some doubt about the correctness of wider observations in Consumer Education & Research Centre. The matter was, therefore, ordered to be placed before a Bench of five Judges. By an order dated July 20, 2004, however, a three Judge Bench, relying on a decision rendered by the Constitution Bench of this Court in Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik & Ors., (2002) 1 SCC 1 2001 Indlaw SC 21248 observed that initially the matter was required to be heard by a Bench of three Judges. Accordingly, the matter was ordered to be set down for hearing before a three-Judge Bench.\n20.  On November 22, 2005, a three Judge Bench perused the earlier orders, heard the learned counsel for the parties for some time and the issue involved and was satisfied that the writ petition was required to be heard by a Bench of five Judges. Accordingly, an order was passed directing the Registry to place the papers before Hon'ble the Chief Justice for necessary action. That is how, the matter is placed for hearing before us.\n21.  A counter affidavit by Mr. V.K. Jain, Under Secretary, Ministry of Defence on behalf of Union of India was filed on January 24, 2002, raising inter alia, preliminary objection as to maintainability of writ petition as also objections on merits. A technical objection was raised by the respondents that the petition was not maintainable as the petitioner-Associations were not registered associations and, therefore, had no locus standi. On Merits, it was submitted that ex-servicemen were provided Assured In patient and Out-patient Treatment as specified in the Regulations of 1983 within the available resources of the State. According to the Union, full and free medical aid for ex-servicemen cannot be claimed as a matter of right.\n22.  It has never been claimed for more than fifty years of independence. Ex- servicemen and their dependents are entitled to medical treatment in Military Hospitals. They are also given financial assistance from the Group Insurance Scheme and from the Armed Forces Flag Day Fund for treatment outside Military hospitals. On the recommendations of Fifth Pay Commission, the Government had sanctioned fixed medical allowance of Rs.100 per month to those ex- servicemen and their families who reside in the areas where facilities of Armed Forces hospitals/clinics are not available. Over and above those facilities, other facilities were also provided, such as Mobile Medical Teams, Medical Vans, Army Group Insurance Medical Benefit Scheme, Army Dialysis Centres, etc.\n23.  It was then stated that the Government had extended certain medical amenities to ex-servicemen and their dependents within the available sources. Ex-servicemen and their family members are given free out-patient treatment in nearest Military Hospitals and are also given medicines. Regarding Military hospitals, it was stated by the deponent that such hospitals are essentially meant for treatment of in-service defence personnel for whom it is a service requirement to ensure defence preparedness. Ex-servicemen are provided in-patient treatment in Military Hospitals, subject to the availability of beds within the authorized strength and without detriment to the needs of in-service defence personnel. It was, however, conceded that the scheme did not cover treatment for pulmonary tuberculosis, leprosy, mental diseases or malignant diseases.\n24.  As to discrimination, it was stated that the case of ex-servicemen cannot be compared with retired Civilian Central Government employees inasmuch as medical facilities under Central Government Health Scheme ('CGHS' for short) are contributory i.e., a retired Central Government servant who is a member of CGHS before retirement has option to continue to be covered by the said scheme.\n25.  The petitioners, therefore, cannot claim similar benefits since they are not similarly situated. Regarding in-service defence personnel, it was stated that the case of the petitioners cannot be compared with in-service defence personnel as they are different, distinct, independent and form different class. It was, therefore, submitted that the grievance of the petitioner is not well founded and they are not entitled to the reliefs claimed.\n26.  A rejoinder affidavit on behalf of the petitioner was filed to the affidavit in reply controverting the facts stated and averments made in the counter affidavit, reiterating the assertions in the petition. In addition, it was stated that on September 13, 1999, Assistant Chief of Personnel (P & C) of the Indian Navy had informed the then President of the Confederation that the Committee had been constituted under the direction of the Defence Minister to look into the problems of medicare of ex-servicemen. Similar information was also communicated by the Under Secretary of Ministry of Defence vide letter dated September 20, 1999 and yet nothing was stated on that point by the Union of India in the counter affidavit already filed.\n27. On July 20, 2004, this Court granted I.As. of All India Defence Services Advocates Association and All India Ex-Services Welfare Association seeking impleadment to the limited extent of addressing the court to raise such points not covered by the submissions of the learned counsel for the petitioner.\n28.  It was also stated at the Bar that during the pendency of the writ petition, the Government of India had introduced a scheme known as \"Ex-Servicemen Contributory Health Scheme\" (ECHS) partly taking care of grievances raised by the petitioner and intervenors. The respondents sought time to place the scheme on record within four weeks. Accordingly, by an additional affidavit dated October 4, 2004, ECHS has been placed on record by the respondents. The scheme is a contributory scheme for ex-servicemen and extends certain benefits to ex-servicemen on payment of contribution.\n29. We have heard learned counsel for the petitioner, intervenors and for the respondent-authorities. The learned counsel for the petitioner and intervenors submitted that considering the hard and arduous nature of work performed by defence personnel and taking into account the exigencies of service, it was obligatory on the respondents to provide free and full medical facilities to them even after retirement. It was submitted that such facilities are provided to defence personnel who are in service. They are also extended to civilians, even after retirement.\n30.  In such matters, expenses would be immaterial. But even if the said fact is relevant and considered material, it is a negligible amount compared to the services rendered by them. The impugned action, therefore, is arbitrary, discriminatory, unreasonable and violative of fundamental rights conferred by the Constitution.\n31. It was also urged that several Committees, Commissions and Expert Bodies considered the plight of ex-servicemen. Various suggestions were made and recommendations were forwarded to the respondents but no adequate steps have been taken by them. The doctrine of 'legitimate expectation' was also pressed in service contending that most of the defence personnel had to retire at a premature age either because of injuries sustained or occupational diseases suffered by them.\n32.  It is, therefore, the right of ex-servicemen to get adequate free and full medical treatment. Apart from fundamental rights guaranteed by Part III of the Constitution, it is the duty of the respondents to implement Directive Principles of State Policy under Part IV of the Constitution. The counsel submitted that serious and terminal diseases cannot be excluded from the category of medical services to be provided to ex-servicemen. It was stated that in past, there were no sufficient number of Military hospitals/clinics. Due to inadequate infrastructure, paucity of staff, availability of sufficient means and other considerations, it was not possible for the respondents to provide medical facilities for serious diseases but in 21st century, when Medical Science has much developed and huge infrastructure is available, there is no earthly reason to deprive ex-servicemen from getting medical treatment for those diseases.\n33. It was finally submitted that no doubt, recently a scheme has been framed under which medical facilities have been ensured to ex-servicemen. But they are required to pay contribution since the scheme is 'contributory health scheme'. To that extent, therefore, the scheme is objectionable and is violative of fundamental rights of ex-servicemen.\n34.  It is also inconsistent with and contrary to various decisions of this Court wherein it has been held that to get free medical service is a fundamental right of citizens. On all these grounds, it was submitted that the petition deserves to be allowed by issuing appropriate directions to the respondents to provide full and free medical facilities to ex defence personnel and their family members.\n35.  The learned counsel for the Union of India, on the other hand, submitted that the action of the Government cannot be held arbitrary, unlawful or otherwise unreasonable. He conceded that valuable services have been rendered by retired army-men when they were in service. But submitted that the State after taking into account all relevant aspects, formulated a policy for providing medical facilities to its employees as also to ex- employees. According to the counsel, defence personnel and civil personnel cannot be compared as they belong to different class. Article 14, therefore, has no application. Likewise, defence personnel in-service and defence personnel out of service, i.e. who have retired, cannot be placed in the same category and if different standards are fixed for providing medical facilities to defence personnel in service on one hand and to retired defence personnel on the other, it cannot be said that the State has acted arbitrarily or practised discrimination between the two classes who are not similar and do not stand on the same footing.\n36.  It was submitted by the respondents that free medical service to all its employees in- service or out-of service is never held to be a fundamental right guaranteed by the Constitution and even if there are some observations to that effect, they are either 'obiter dicta' or 'passing observations' and do not lay down correct law. Every State has limited financial means and resources. And keeping in view financial capacity and available means, it has to undertake its obligations of providing social services including medical facilities to its employees in- service or retired. So far as ex-servicemen are concerned, the counsel submitted that recommendations and suggestions of various Committees were considered by the Union of India and more and more benefits had been extended from time to time. Regarding medical facilities in serious and terminal diseases, it was submitted that in past, such facilities were either not available at Military hospitals/clinics or there were no sufficient number of hospitals/clinics and hence they could not be provided to ex-servicemen.\n37.  The position was thereafter substantially changed. In several hospitals/clinics now such facilities are available. It was also stated that financial assistance is being given to ex-servicemen in certain cases.\n38. In 2002, the Government has prepared ECHS for full medical services. True it is that the scheme is contributory. But considering the amount of contribution which is 'one time payment' and is really negligible, it cannot be contended that the action is arbitrary, irrational or in the nature of deprivation of ex- servicemen from getting necessary medical services.\n39. If ex-servicemen intend to take benefit of the scheme, they may exercise option, may become members and may avail benefits thereunder by paying contribution on the basis of the amount of pension received by them. In that case, they would not be entitled to financial assistance given to them. If they are not willing to be members of the scheme, it is not necessary for them to pay the amount of contribution but they would not be entitled to medical benefits under the scheme.\n40.  It was also stated that this is to a limited class of employees who have retired prior to January 1, 1996 as thereafter, the scheme has been made applicable and contribution has been charged from all the employees. It was, therefore, submitted that no case can be said to have been made out by the petitioner so as to hold the action of the respondents unlawful or otherwise unreasonable and the petition deserves to be dismissed. We have given anxious and thoughtful consideration to the rival contentions raised by the parties. So far as the preliminary objection regarding maintainability of the petition is concerned, it may be stated that the petitioner has asserted in the petition that it is a Confederation of five ex-servicemen Associations formed in furtherance of common cause. The aims and objects of the Confederation have also been annexed as s et out in the MoU (Annexure 'P-1'). In the affidavit in reply filed by the Under Secretary working with the Ministry of Defence, it was stated that he is 'not aware' of the existence of the petitioner organization. He, however, stated that the organization 'does not seem' to be registered body to represent the cause of ex- servicemen.\n41.  The rejoinder affidavit unequivocally states that the objection raised by the Union of India is incorrect. The Confederation was registered under the Societies' Registration Act, 1860. Likewise, all Associations which constitute the Confederation are similarly registered individually.\n42.  It is further stated that Air Force Association and Indian Ex-Services League are even recognized by the Ministry of Defence, Union of India. It, therefore, cannot be said that the petitioner-Confederation is not registered and the petition filed is not maintainable. In view of the fact that some of the Associations have been recognized even by the Ministry of Defence, the deponent ought not to have raised the objection regarding maintainability of the petition without ascertaining full facts and particulars. We leave the matter there holding the petition maintainable. We are also satisfied that the contention of the respondent is even otherwise not tenable at law.\n43.  A similar point came up before a Constitution Bench of this Court in the well known decision in D.S. Nakara v. Union of India, (1983) 1 SCC 305 1982 Indlaw SC 158. There also, one of the petitioners was a Society registered under the Societies' Registration Act, 1860. It approached this Court for ventilating grievances of a large number of old and infirm retirees who were individually unable to approach a court of law for redressed of their grievances. This Court held locus standi of the Society 'unquestionable'.\n44.  In the present case, apart from the fact that a larger public issue and cause is involved, even individually, all Associations are registered Associations of ex-servicemen. The petitioner-Confederation representing those Associations which is also registered, can certainly approach this Court by invoking the provisions of Part III of the Constitution. We, therefore, reject the preliminary objection raised by the respondents and hold that the petitioner-Confederation has locus stand to file the petition.\n45.  In our view, however, maintainability of petition and justifiability of issues raised therein are two different, distinct and independent matters and one cannot be mixed or inter-linked with the other.\n46.  It was strenuously contended that when in-service defence personnel have been provided full and free medical services, refusal to extend similar facilities and benefits to ex-servicemen would result in discriminatory treatment, vocative of Art. 14 of the Constitution.\n47.  It was also urged that members of civil services have been provided all medical facilities, irrespective of the fact whether they are in service or have retired. In the submission of the counsel, if in-service defence personnel have been provided full and free medical services, the same benefit should be extended to retired defence personnel. Likewise, when employees from civil services have right to get full and free medical facilities, the same yardstick must be applied to retired defence personnel as well. Retired civil servants and retired defence personnel stand on one and the same footing. Granting relief in favour of one class and denying same or similar relief in favour of another class would result in unequal treatments to equals and would infringe Art. 14 of the Constitution. The action of the respondents, therefore, deserves interference by this Court. We are unable to uphold the argument advanced by the petitioners for more than one reason.\n48.  It is no doubt true, that Art. 14 guarantees equality before the law and confers equal protection of laws. It clearly prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated.\n49. In our opinion, however, the basis on which the argument proceeds is fallacious and ill- founded. It is well established that Art. 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. It thus prohibits discrimination or class legislation. It, however, does not prohibit classification if otherwise it is legal,valid and reasonable.\n50. Before more than five decades, a Constitution Bench of this Court was called upon to consider a similar contention in the well known decision in State of West Bengal v. Anwar Ali Sarkar & Another, (1952 SCR 284 : AIR 1952 SC 75 1952 Indlaw SC 52). In that case, validity of certain provisions of the West Bengal Special Courts Act, 1950 was challenged on the ground that they were discriminatory and violative of Art. 14 of theConstitution. Dealing with the contention, S.R. Das, J. (as His Lordship then was), made the following pertinent observations which were cited with approval in several cases;\n\"It is now well established that while art. 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an \"abstract symmetry\" in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases.\nIt may be geographical or according to objects or occupations or the like Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them.\nIn short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained.\" (emphasis supplied)\n51.  Again, in Budhan Choudhry v. State of Bihar, [(1955) 1 SCR 1045 : AIR 1955 SC 191 1954 Indlaw SC 4], after considering earlier decisions, this Court stated;\n\"It is now well-established that while art. 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.\" (emphasis supplied)\n52.  The principle laid down in Anwar Ali Sarkar and Budhan Choudhry has been consistently followed and reiterated by this Court in several subsequent cases. [See Bidi Supply Co. v. Union of India & Ors., 1956 SCR 267 : AIR 1956 SC 479 1956 Indlaw SC 52; Ram Krishna Dalmia v. Justice Tendolkar, 1959 SCR 279 : AIR 1958 SC 538 1958 Indlaw SC 34; V.C. Shukla v. State (Delhi Administration); 1980 Supp. SCC 249 : AIR 1980 SC 1382 1980 Indlaw SC 589; Special Courts Bill, Re, (1979) 1 SCC 380 : AIR 1979 SC 478 : (1979) 2 SCR 476 1978 Indlaw SC 352; R.K. Garg v. Union of India, (1981) 4 SCC 675 : AIR 1981 SC 2138 1981 Indlaw SC 372; State of A.P. & Ors. v. Nallamilli Rami Reddi & Ors., (2001) 7 SCC 708 : AIR 2001 SC 3616 2001 Indlaw SC 20001; M.P. Rural Agriculture Extension Officers Association v. State of M.P. & Anr., (2004) 4 SCC 646 : AIR 2004 SC 2020 2004 Indlaw SC 416], In our judgment, therefore, it is clear that every classification to be legal, valid and permissible, must fulfill the twin-test, namely;\n(i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and\n(ii) such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question.\n53.  In our considered opinion, classification between in-service employees and retirees is legal, valid and reasonable classification and if certain benefits are provided to in-service employees and those benefits have not been extended to retired employees, it cannot be successfully contended that there is discrimination which is hit by Art. 14 of the Constitution. To us, two categories of employees are different. They form different classes and cannot be said to be similarly situated. There is, therefore, no violation of Art. 14 if they are treated differently.\n54. Likewise, a classification between defence personnel and other than defence personnel is also reasonable and valid classification. Moreover, it is clarified by the respondents in the counter-affidavit that for medical facilities provided to retired civil servants, there is also a scheme known as the Central Government Health Scheme (CGHS), which is again contributory. Retired Central Government Servants who are members of the scheme are covered by the said scheme and they are provided medical services on payment of specified amount under the scheme. We, therefore, see no substance in the argument of the petitioners that the impugned action in not providing full and free medical facilities to retired defence personnel infringes Art. 14 of the Constitution.\n55.  We are also not impressed by the argument that all medical benefits and facilities must be provided to ex- servicemen under the doctrine of 'legitimate expectation'. The doctrine of 'legitimate expectation' is a 'latest recruit' to a long list of concepts fashioned by Courts for review of administrative actions.\n56. No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to 'judicial review'. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue.\n57.  The expression 'legitimate expectation' appears to have been originated by Lord Denning, M.R. in the leading decision of Schmidt v. Secretary of State, [(1969) 1 All ER 904 : (1969) 2 WLR 337 : (1969) 2 Ch D 149], In Attorney General of Hong Kong v. Ng Yuen Shiu, [(1983) 2 All ER 346 : (1983) 2 AC 629 : [1983] 2 W.L.R. 735], Lord Fraser referring to Schmidt stated;\n\"The expectations may be based on some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry \" (emphasis supplied)\n58.  In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised. We do not wish to burden our judgment with several English, American and domestic decisions, since the proposition of law has not been disputed by the other side.\n59. In our opinion, however, in the instant case, the doctrine of legitimate expectation has no application. It is not even the case of the petitioners that certain medical facilities which were enjoyed by them in the past have been withdrawn or revoked.\n60.  On the contrary, they have admitted that after independence, because of several representations made by them and various efforts, suggestions and recommendations by different Committees and Commissions, more and more medical facilities were provided but they were not enough.\n61. It was also their case that in the last few years, situation regarding infrastructure and staff has been improved. They have, therefore, prayed that medical facilities which were not provided in past may also be provided now to retired defence personnel. Similarly, medical facilities should also be extended for serious and terminal diseases.\n62.  The doctrine of legitimate expectation, in the fact situation, therefore, cannot be invoked by the petitioner in the case on hand. We are equally unimpressed by the submission of the learned counsel to issue directions or guidelines to 'fill in gaps' in the exercise of plenary powers. Undoubtedly, in absence of legislative provisions or administrative instructions governing the field, this court may, in appropriate cases, issue necessary directions as has been done in several cases. [See Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 106 : AIR 1991 SC 2106 : (1991) 3 SCR 936 1991 Indlaw SC 1037; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC 610 1996 Indlaw SC 1546; Visakha v. State of Rajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011 1997 Indlaw SC 2304].\n63.  In the instant case, however, a scheme providing medical facilities to ex-servicemen has been framed. It has been decided by the Central Government to extend medical facilities to retired defence personnel on the basis of 'one time contribution' which is legal, proper and reasonable. In the circumstances, the ratio laid down by the Supreme Court in the above cases does not apply and no directions need be issued to the respondents. At the same time, however, so far as the services provided by the defence personnel is concerned, there can be no two opinions that they have rendered extremely useful and indispensable services which can neither be ignored nor under-estimated.\n64.  The petitioners have rightly stated that they have served in the Army, Air Force and Navy of the Union of India during cream period of youth putting their lives to high risk and improbabilities. As a mark of respect and gratitude, therefore, they must be provided medical services after retirement. It is indeed true that men and women in uniform are the pride of the nation and protectors of the country.\n65. It is because of their eternal vigil that ordinary citizens are able to sleep peacefully every night, for it is these men and women guarding the frontiers of our nation that makes our interiors safe. They, therefore, are entitled to privileged treatment.\n66.  It would be appropriate to quote here an epitaph from the Kohima War Cemetry which conveys eloquently what our Soldiers, Sailors and Airmen are cheerfully willing to sacrifice their lives;\n\"When you go home,\nTell them for us;\nFor your to-morrow,\nWe gave our to-day.\"\n67.  The petitioner has made grievance that during war and serious situations, defence personnel are remembered but as soon as grave situation is over, they are forgotten and ignored. We are reminded what Francis Quarrels said;\n\"Our Gods and Soliders we alike adore,\nAt the time of danger, not before;\nAfter deliverance both are alike requited,\nOur Gods forgotten and our Soldiers slighted\".\n68. Before more than two decades when the respondents appointed a High Level Committee under the Chairmanship of Shri K.P. Singh Deo, Minister of State, Ministry of Defence to consider problems of ex-servicemen, it highlighted the difficulties experienced by ex-servicemen in the light of hard and strenuous work undertaken by them and exigencies of service in which they had to discharge their duties.\n69.  The Committee, while submitting the report, observed in the Foreword Our Armed Forces have won world wide renown for their valour, dedication and devotion. The achievements of the Armed Forces in varying roles since Independence are a matter of pride for all of us in the Country and that of envy of other Nations. Men from all castes, creeds, religions and from all parts of India join the Armed Forces and their integration as a secular homogeneous and dedicated team is remarkably total.\n70.  The Armed Forces personnel have sterling qualities of head and heart, courage, discipline, loyalty and implicit obedience to orders. They are the guardians of the safety and honour of the Country and are ever prepared to sacrifice their lives to preserve the freedom and sovereignty of the Country.\n71.  In addition to their preparedness for war, during peace time, our Armed Forces have always risen to the occasion to assist the Administration during natural calamities and internal unrest. The sacrifices made by the personnel of the Armed Forces from 15th August, 1947 to date have been so innumerable that they can best be described by the following quotation of Sir Winston Churchill who had on 20th August, 1940 said:-\n\"Never in the field of human conflict was so much owed by so many to so few\"\n72.  The Committee was conscious of the ground reality that the personnel of Armed Forces are the only Government employees who retire at a relatively younger age to keep a youthful profile due to the arduous nature of their duties in hazardous and inhospitable terrain. It stated that, almost all ex-servicemen, whose retirement age depending on rank, vary from 35 to 54 years, require help and assistance for resettlement, rehabilitation and adjustment in the civil stream.\n73.  They require a second career as they are comparatively young and active and their responsibilities and obligations are at the peak when they are compulsorily retired. Having given the best years of their lives for the safety, honour and integrity of the country, it becomes a national obligation to get them resettled and rehabilitated. The Committee noted that the problems of ex-servicemen had, for a long time, been engaging the attention of both the Houses of Parliament as well as the Government and a cause of concern to Prime Minister Smt. Indira Gandhi who had a special love and affection for the Armed Forces. Keeping in view the magnitude of the problem, the High Level Committee had been set up for the first time after independence to go into various problems of ex- servicemen.\n74.  The Committee was also mindful that defence and national development were, to a great extent, interdependent. The Committee quoted Pandit Jawaharlal Nehru, first Prime Minister of India, who, while inaugurating the National Defence College at Delhi as early as in 1960, stated;\n\"Defence itself is not an isolated matter now. It is intimately connected with the economic aspect, industrial aspect and many other aspects in the country India today has become positively and actively defence conscious, more than at any time since independence. Our desire is to continue to live peacefully and co-operatively with all our neighbours. Nevertheless, no defence apparatus can exist in a purely idealistic way. It has to be very realistic and remain prepared for any emergency\" (emphasis supplied)\n75.  The Committee considered several problems and prepared a detailed report. Regarding medical facilities, it observed:-\n\"Medical Facilities\n12.9 Prior to the issue of Government of India, Ministry of Defence letter No. 16307/DGCAFMS/DG\\(A)/417\\D(AG-1) dated 14th October, 1966, ex-servicemen and their families were not entitled to receive any treatment from Service hospitals except to a very limited extent as follows:-\n(a) Free medical treatment for specific disabilities in respect of ex-servicemen in receipt of disability pension.\n(b) Other Armed Forces pensioners could be admitted to Service hospitals only if accommodation was available and admission was sanctioned by the Officer Commanding Station/Administrative Authority. Specified hospital stoppages were to be paid. No outpatient treatment was available to such pensioners.\n(c) Families of ex-servicemen were not entitled to any treatment out-door or indoor from Service hospitals.\n58. The Government letter cited in para 12.9 above was instrumental in making very liberal concessions towards the treatment of ex-servicemen and their families from Service sources. Under the provisions, ex-service pensioners and their families and the families of deceased service personnel drawing pension of some kind were entitled to free out-patient treatment including supply of free medicines from the nearest military hospital. Sanction was also accorded for these personnel for providing in-patient treatment in Service hospitals subject to the following conditions:-\n(a) That the disease is not incurable.\n(b) That the hospital accommodation could be made available from within the authorized number of beds and without detriment to the needs of serving personnel.\n(c) That the treatment will be limited to the facilities locally available.\n(d) No conveyance will be provided for journeys from the residence to the hospital and back; and\n(e) No special nursing would be admissible.\n59. It is specifically laid down in this Government letter that the above concessions will not include treatment for pulmonary tuberculosis, leprosy, mental diseases, malignant diseases or any other disease for which treatment is not ordinarily available from the local military sources.\n12.11 Liberalisation Proposals : due to the increased awareness and phenomenal increase in the number of ex-servicemen at the rate of 60,000 per annum, more and more ex- servicemen are now coming to Service hospitals for treatment. To meet the requirement of giving adequate treatment to the ex-servicemen reporting at the Service hospitals, the following additional facilities need to be provided:-\n(a) Sanction of 1155 beds exclusively for the ex- servicemen pensioners and entitled dependents.\n(b) To treat ex-servicemen as out-patients and in-patients, additional staff would also be required as under:-\n12.12 Civil Hospitals : Ex-servicemen are living in villages, towns and cities throughout the country. The 31 military hospitals are situated in military stations. The primary aim of these hospitals is to provide medical cover to the serving personnel. On account of their location, only those ex-servicemen and entitled dependents within close proximity to these stations are likely to avail of the facilities in these military stations.\n60. In the case of most other ex-servicemen they have to perforce depend upon the civil hospitals in the districts. Hence, States/Union Territories should provide medical assistance to the ex-servicemen in their civil hospitals free of charge, for example as provided in Karnataka.\nIn Chapter X, certain recommendations have been made for provision of funds from the Seventh Plan expenditure for the construction of wards for ex-servicemen in hospitals. This should also be done in civil hospitals particularly in States where there are a large number of ex- servicemen.\n61. The Committee then made certain recommendations, inter alia, observing that the existing facilities in the Military hospitals should be enhanced for ex-servicemen and their entitled dependents in a phased manner in the next few years.\n62. As already noted earlier, in 1983, Regulations for the medical services of the Armed Forces were framed superseding the Regulations for the medical services of the Armed Forces, 1962. Regulation 296 providing \"Entitlement to medial attendance\" is relevant and the material part thereof reads thus:-\n296. The classes noted below are entitled to medical attendance as defined in paras 284, 285 and 286 to the extent shown against each:\nEx-service  personnel in receipt of a disability pension and Ex- servicemen of the Indian State Forces in receipt of a disability pension from the Defence Services Estimates for a disability accepted as attributable to or aggravated by service with the Indian Armed Forces. As out-patient or in a hospital.\n(a) Treatment is authorized only for the disabilities for which pension has been granted excluding cases of Pulmonary Tuberculosis, Leprosy and mental diseases and patients requiring any special treatment not ordinarily available from service sources, such as radiotherapy.\n(b) Admission may be authorized for the purpose of observation to enable the medical authorities to arrive at a correct assessment of the degree of disability.\nPersonnel of F (i) above, who have been invalidated out of service on account of a disability accepted as attributable to/ aggravated by military service but who are not in receipt of a disability pension for the reason that the disability is less than 20% and individuals whose case attributability has been conceded by the Medical Board but a final decision in the matter ha snot been reached.\n63. As out-patient or in a hospital, if accommodation is available.\n(a) As in F(i) above.\n(b) Treatment will be discontinued immediately in respect of cases under consideration if the final decision is against the findings of the Medical Board.\n(iii) Ex-service personnel invalided out of service on account of pulmonary tuberculosis which has been accepted as attributable to/aggravated by service and for which disability pension has been granted.\n(i) Domiciliary treatment as out patient.\n(ii) May be admitted in Military Hospital (Cardio Thoracic Centre), Pune, on the recommendation of OC of an armed forces hospital, if a bed out of the ten T.B. beds reserved for this category of personnel is available.\n64. On relapse of the disease.\nThis concession is not an entitlement for indoor hospital treatment for T.B. from military sources for ex- servicemen.\nEx-Service pensioners and their families of deceased service personnel drawing pension of some kind.\n(i) Free out patient treatment in the nearest Armed Forces Hospital including the supply of medicine necessary for their treatment.\n(ii) In-patient treatment in Armed Forces Hospital subject to the following conditions:\na) That the disease is not incurable.\nb) The hospital accommodation could be made available within the authorized number of beds and without detriment to the needs of service personnel.\nc) That the treatment will be limited to the facilities available locally.\nd) No conveyance will be provided for journeys from the residence to the hospital and back.\ne) No special nursing would be admissible.\nf) for in patient treatment, hospital stoppages will be as para 16 of Appendix 5.\n65. The scope of the above concessions will not include treatment for pulmonary tuberculosis, leprosy, mental disease, malignant disease or any other disease for which treatment is not ordinarily available from local military sources.\n(ii) These concessions will not be admissible to the service pensioners who are re- employed in Government/Semi- Government departments or other public or private Sector undertaking which provides medical facilities to their employees.\niii) for this purpose family includes wife and unmarried children step children adopted children under 18 years of age are dependent on the pensioners.\nNote: Retired officers of the Armed Forces including M.N.S. officers and retired JCOs, WOs, OR and NCSE or equivalents in the Navy and Air Force in receipt of service pension may be treated in a hospital if accommodation is available and admission is sanctioned by the O.C. Station/administrative authority. They are not entitled to special nursing in hospital.\n66. In the affidavit in reply filed by the Union of India, it was stated that under the Group Insurance Scheme and from the Armed Forces Flag Day Fund, medical treatment has been provided to ex-servicemen. On the recommendation of Fifth Pay Commission, the Government had sanctioned a fixed medical allowance of Rs.100 per month to those ex-servicemen and their families who reside in the area where Armed Forces hospitals/clinics are not available. Other facilities were also extended to them.\n67. It was stated that in respect of serious diseases i.e. diseases affecting heart angiography, open heart surgery, valve replacement, pacemaker implant, bypass surgery and repeat angioplasty, cancer, etc. facilities are now available. Substantial financial assistance is provided to ex- servicemen and their dependents for treatment in several hospitals for bypass surgery (including preliminary tests like angiography, angioplasty, angiography), kidney/renal transplantation, cancer/spastic paraplegic treatment, coronary artery surgery, open heart surgery, valve replacement and pacemaker implant. We have been taken through the contributory scheme of 2002.\n68. It substantially covers extensive medical facilities to be provided to ex-servicemen. A communication dated December 30, 2002 by Government of India, Ministry of Defence to the Chief of Army Staff, Navy Staff and Air Staff states that Government has sanctioned Ex-Servicemen Contributory Health Scheme (ECHS).\n69. The communication inter alia states as under:\n\"(a) ECHS would be a contributory scheme. On retirement, every Service personnel will compulsorily become a member of ECHS by contributing his/her share and the Scheme would be applicable for life time. Similarly ex- servicemen who have already retired can become members by making a one time contribution. There would be no restriction on age or medical condition. The contribution will be according to the rates prescribed for CGHS pensioners as per Appendix-A attached.\n(b) Retired personnel joining the scheme will forfeit the medical allowance of Rs.100/- presently admissible to them and those who do not join the scheme would continue getting medical allowance as hitherto fore. Such persons would not be entitled to any medical facility from Armed Forces Clinics/Hospitals or Polyclinics set up under the scheme.\"\nPara 2 (c) of the said letter states that the scheme would cater for medicare to the ex-servicemen by establishing new Polyclinics and Augmented Armed Forces Clinics at 227 stations spread across the country, the details of which have been given in the letter. It also provides for reimbursement of cost of medicines/ drugs/consumables and for financial outlay.\n70. It states that the service head quarters would ensure that allocations made for revenue expenditure and reimbursement is fully utilized on yearly basis. It then prescribes rates of contribution in Appendix-A which are as under:-\nRATES OF CONTRIBUTION\nFrom the above discussion as well as the relevant provisions of the scheme, we are satisfied that necessary steps have been taken by the respondents. Under the scheme, now in vogue, all ex-servicemen are entitled to medical treatment provided they become members of the said scheme and pay requisite contribution.\n71. It is also not in dispute that this would apply only to those defence personnel who retired prior to 1st January, 1996 since officials who have retired after that date or are still in service are governed by the scheme and are paying requisite amount of contribution.\n72. The larger question raised by various associations is that to get free and full medical aid is their fundamental right and is corresponding duty of the Government. The respondents hence can neither deny that right nor can ask ex-servicemen to pay contribution amount for getting medical services. To buttress the contention, the learned counsel invited our attention to several decisions of this court.\nIt is not necessary to deal with all those cases. We may, however, consider some of them which are relevant. Strong reliance was placed on a decision of three Judge Bench in Consumer Education & Research Centre.\nIn that case, the Court dealt with the problem of occupational health hazards and diseases sustained by the workmen employed in asbestos industries. The Court observed that the dangers and diseases attributable to personnel working in asbestos industries were very serious apart from cancer and respiratory disorders.\n73. It was held that right to health and medical aid of workers during service and thereafter, is a fundamental right of workers. According to this Court, it can issue directions in an appropriate case to the State or its instrumentalities or even private employers to make the right to life meaningful and to pay compensation to affected workmen.\n74. It also held that the defence of 'sovereign immunity' would not be available to the State or its instrumentalities where fundamental rights are sought to be enforced. Relying on several previous judgments, this Court held that right to life would mean meaningful and real right to life. It would include right to livelihood, better standard of living in hygienic conditions at the work place and leisure. Speaking for the Court, K. Ramaswamy, J. observed in para 25;\n\"Therefore, we hold that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Arts. 39(e), 41, 43, 48A and all related to Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.\" (emphasis supplied)\nReliance was also placed on CESC Ltd. v. Subhash Chandra Bose, [1992) 1 SCC 441 : AIR 1992 SC 573 1991 Indlaw SC 364], wherein His Lordship (K. Ramaswamy, J.) held that right to health of a worker is covered by Art. 21 of theConstitution.\n75. It was also indicated that health does not mean mere absence of sickness but would mean complete physical, mental and social well-being.\n\"Facilities of health and medical care generate devotion and dedication to give the workers' best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gift-edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on the ground of sickness.\"\nReference was made to Bandhua Mukti Morcha v. Union of India, [(1984) 3 SCC 161 : AIR 1984 SC 802 1983 Indlaw SC 192] wherein Bhagwati, J. (as His Lordship then was) referring to Francis Coralie Mullin v. Administrator, Union Territory of Delhi, [(1981) 1 SCC 608 : AIR 1981 SC 746 1981 Indlaw SC 117] stated;\n\"It is the fundamental right of every one in this country, assured under the interpretation given to Art. 21 by this Court in Francis Mullen's case, to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Art. 21 derives its life breath from the Directive Principles of State Policy and particularly Cls. (e) and (f) of Art. 39 and Arts. 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.\nThese are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in Cls. (e) and (f) of Article 39, Art. 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Art. 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.\"\n76. The counsel also relied upon Paschim Banga Khet Mazdoor Samity v. State of West Bengal, [(1996) 4 SCC 37 : AIR 1996 SC 2426 1996 Indlaw SC 2871]. That case related to failure on the part of Government hospitals to provide timely emergency medical treatment to persons in serious conditions. Relying on Khatri (II) v. State of Bihar, [(1981) 1 SCC 627 1980 Indlaw SC 618], this Corut said;\n\"It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the Constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the Constitutional obligation to provide free legal aid to a poor accused, this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. (See : Khatri (II) v. State of Bihar (1981) 1 SCC 627 1980 Indlaw SC 618]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.\nIt is necessary that a time-bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated August 22, 1995 and the further directions given herein\"\n77. In Vincent Panikurlangara v. Union of India, [(1987) 2 SCC 165 : AIR 1987 SC 990 1987 Indlaw SC 28640],the issue related to manufacturing, selling and distributing approved standard of drugs and banning of injurious and harmful medicines. In the background of that question, this Court held right to maintenance and improvement of public health as one of the fundamental rights falling under Art. 21 of the Constitution.\nQuoting a well-known adage \"Sharirmadhyam khalu dharma shadhanam\" (healthy body is the very foundation of all human activities), the Court observed thatmaintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top.\n78. In National Textile Workers' Union v. P.R. Ramakrishnan, [(1983) 1 SCC 228 : AIR 1983 SC 75 1982 Indlaw SC 185], placing emphasis on needs of changing society and liberal construction of laws conferring benefits on weaker classes, Bhagwati J. (as His Lordship then was) said;\n\"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand alongwith the tree, it will either choke the tree or if it is a living, tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adopting itself to the fast changing society and not lag behind.\nIt must shake off the inhibiting legacy of its colonial past and assume a dynamic role in the process of social transformation. We cannot therefore mechanically accept as valid a legal rule which found favour with the English courts in the last century when the doctrine of laissez faire prevailed. It may be that even today in England the courts may be following the same legal rule which was laid down almost a hundred years ago, but that can be no reason why we in India should continue to do likewise.\nIt is possible that this legal rule might still be finding a place in the English text books because no case like the present one has arisen in England in the last 30 years and the English courts might not have had any occasion to consider the acceptability of this legal rule in the present times. But whatever be the reason why this legal rule continues to remain in the English text books, we cannot be persuaded to adopt it in our country, merely on the ground that it has been accepted as a valid rule in England. We have to build our own jurisprudence and though we may receive light from whatever source it comes, we cannot surrender our judgment and accept as valid in our country whatever has been decided in England\"\n79. It cannot be gainsaid that right to life guaranteed under Art. 21 of the  Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held unconstitutional and ultra vires Part III of the Constitution. Before more than hundred years, in Munn v. Illinois, (1876) 94 US 113 : 24 Law Ed 77, Field, J. explained the scope of the words \"life\" and \"liberty\" in 5th and 14th Amendments to the U.S. Constitution and proclaimed;\"By the term \"life\" as here used something more is meant than mere animal existence.\n76.  The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison. (emphasis supplied)The above observations have been quoted with approval by this Court in Kharak Singh v. State of U.P. (1964) 1 SCR 332 : AIR 1963 SC 1295 1962 Indlaw SC 577. A similar view thereafter has also been taken in several cases, viz., Prithi Pal Singh v. Union of India, (1982) 3 SCC 140 : AIR 1982 SC 1413 1982 Indlaw SC 193; A.K. Roy v. Union of India, (1982) 1 SCC 271 : AIR 1982 SC 710 1981 Indlaw SC 381; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180 1985 Indlaw SC 525; State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 : AIR 1986 SC 847 1986 Indlaw SC 659; Prabhakaran v. State of Tamil Nadu, (1987) 4 SCC 238 : AIR 1987 SC 2117 1987 Indlaw SC 28180; A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : AIR 1988 SC 1531 1988 Indlaw SC 467; Vikram Deo Singh v. State of Bihar, 1988 Supp SCC 734 : AIR 1988 SC 1782 1988 Indlaw SC 775; Parmanand Katara v. Union of India, (1989) 4 SCC 286 : AIR 1989 SC 2039 1989 Indlaw SC 47; Kishan Pattnayak v. State of Orissa, 1989 Supp (1) SCC 258 : AIR 1989 SC 677 1989 Indlaw SC 829; Shantistar Builders v. Narayan, (1990) 1 SCC 520 : AIR 1990 SC 630 1990 Indlaw SC 683; Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC449 : AIR 1990 SC 2060 1990 Indlaw SC 199; Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 : AIR 1990 SC 1480 1989 Indlaw SC 137; Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress, 1991 Supp (1) SCC 600(735) : AIR 1991 SC 101 1990 Indlaw SC 224; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 2003 Indlaw SC 483; District Registrar & Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496 2004 Indlaw SC 975].\n77.  The stand of the Union of India, however, is that to provide medical facilities to all defence personnel in service as well as retired, necessary steps have been taken. So far as ex-servicemen are concerned, Contributory Scheme of 2002 provides for medical services by charging 'one time contribution' on the basis of amount of pension received by an employee. The amount ranges from Rs.1,800 to Rs.18,000 which cannot be said to be excessive, disproportionate or unreasonably high. The question, therefore, is whether the State can ask the retired defence personnel to pay an amount of contribution for getting medical facilities by becoming a member of such scheme.\n78. In our opinion, such a contributory scheme cannot be held illegal, unlawful or unconstitutional. Ultimately, the State has to cater to the needs of its employeespast and present. It has also to undertake several other activities as a 'welfare' State. In the light of financial constraints and limited means available, if a policy decision is taken to extend medical facilities to ex- defence personnel by allowing them to become members of contributory scheme and by requiring them to make onetime payment which is a 'reasonable amount', it cannot be said that such action would violate fundamental rights guaranteed by Part III of the Constitution.\n79.  In State of Punjab v. Ram Lubhaya Bagga, [(1998) 4 SCC 117 : AIR 1998 SC 1703 1998 Indlaw SC 1505], a three Judge Bench of this Court had an occasion to consider the question of change of policy in regard to reimbursement of medical expenses to its employees. Referring to earlier decisions, the Bench took note of ground reality that no State has unlimited resources to spend on any of its projects. Provisions relating to supply of medical facilities to its citizens is not an exception to the said rule. Therefore, such facilities must necessarily be made limited to the extent finances permit. No right can be absolute in a welfare State. An individual right has to be subservient to the right of public at large. \"This principle equally applies when there is any constraint on the health budget on account of financial stringencies.\n80.  We are in agreement with the above view. In our considered opinion, though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Art. 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay 'one time contribution' neither violates Part III nor it is inconsistent with Part IV of the Constitution. Ex- servicemen who are getting pension have been asked to become members of ECHS by making 'one time contribution' of reasonable amount (ranging from Rs.1,800/- to Rs.18,000/-).\n81. To us, this cannot be held illegal, unlawful, arbitrary or otherwise unreasonable. Observations made by this Court in the cases relied upon by the petitioner and intervenors including Consumer Education & Research Centre referred to earlier, must be read as limited to the facts before the court and should not be understood to have laid down a proposition of law having universal or general application irrespective of factual situation before the Court. To us, the policy decision in formulating Contributory Scheme for ex-servicemen is in accordance with the provisions of theConstitution and also in consonance with the law laid down by this Court. We see no infirmity therein. We, therefore, hold that getting free and full medical facilities is not a part of fundamental right of ex-servicemen.\n82.  We must, however, hasten to add that we are not unmindful or oblivious of exemplary and extremely useful services rendered by defence personnel. We are equally conscious of the fact that the safety, security and comfort enjoyed by the countrymen depend largely on dedication and commitment of our soldiers, sailors and airmen. We are also aware that they are exposed to harsh terrain and discharge their duties in hostile conditions of life. For days and months, they are at places covered by snow or in desert or in wild forests. They are unable to come in contract with their family members, kiths and kins or rest of the world. They are not in a position to enjoy even usual and day-to-day comforts and amenities of life available to ordinary men and women. At times, they are not able to communicate to their friends and relatives. It is also not in dispute that the question relates to a particular class of persons which is a 'diminished category', retired prior to January 1, 1996.\n83.  Taking into account all these facts and the circumstances in their entirety, on March 8, 2006, we passed the following order:\n\"Mr. K. S. Bhati, learned counsel appearing for Petitioner No. 1, commenced his submissions at 10.30 a.m. and concluded at 2.35 p.m. Thereafter, Mr. J.S. Manhas, learned counsel appearing for Petitioner Nos. 2 and 3, made his submissions till 3.00 p.m. Mr. Ravi P. Mehrotra, learned counsel appearing for the Union of India, made his submissions till 3.25 p.m. Mr. K.S. Bhati, learned counsel, thereafter rejoins and concluded at 3.30 p.m. Hearing concluded.\nWe have heard the learned counsel for the parties on the questions of law, particularly on the aspect of the correctness of broad observations made in the decision of a three-Judge Bench in Consumer Education Research Centre & Ors. vs. Union of India & Ors. (1995 (3) S.C.C.43).\"\n84.  During the course of hearing with the assistance of the learned counsel, we have perused the Ex-Servicemen Contributory Health Scheme [for short, \"E.C.H.S.\"] dated 30th December, 2002. The contribution to be made by an ex-serviceman so as to avail the benefit of health scheme under the E.C.H.S. is one-time payment ranging from Rs.1800/- to Rs.18,000/- depending upon the amount of pension drawn by him.\n85.  In this writ petition, we are concerned with the cases of those ex- servicemen who have retired before 1st January, 1996. It is evident that this class of ex-servicemen is a diminishing category. The Government of India, Ministry of Defence, shall consider, without it being treated as a precedent, the question of granting the waiver of contribution required to be made under the E.C.H.S. by the ex- servicemen of the category with which we are concerned, i.e., those who have retired prior to 1st January, 1996, having regard to the contribution that may have been made by them in the service of the nation and particularly considering that they, while in service, were not making any payment so as to enjoy the benefit of medical care. Alternatively, the Government can also consider making payment on behalf of those who may be interested in availing the benefits under the E.C.H.S.\n86.  In case of any difficulty in granting this one-time concession, the Government shall file an affidavit within a period of four weeks, placing on record the approximate amount which may have to be waived or contributed by the Government on behalf of such category of ex-servicemen.\nFurther, if the Government decides to waive it or pay it, without it being treated as a precedent, in that event, the amount may not be incorporated in the affidavit. The waiver or payment would be only in respect of those who voluntarily wish to join the E.C.H.S. Judgment is reserved.\n87.  In the above order, we suggested that the Government may waive payment of contribution charges or may consider to pay requisite 'one time contribution' on behalf of the employees who may be interested in availing the benefits of ECHS. We also indicated that in case of any difficulty in granting this one time concession, the Government may file an affidavit within a period of four weeks placing on record the approximate amount which may have to be waived or contributed by the Government on behalf of such category of ex- servicemen. No such affidavit has been filed by the Government so far.\n88.  It can, therefore, safely be presumed that the Government has no difficulty in waiving/paying contribution as a 'one time measure' on behalf of ex- defence personnel who retired prior to January 1, 1996 and wish to avail benefits of ECHS. Obviously, the said question will not arise in future. We, therefore, dispose of the matter in the light of our earlier order and the observations made therein.\n89. For the reasons aforesaid, the writ petition deserves to be partly allowed. Keeping in view totality of facts and circumstances, in our considered view, the ends of justice would be met if we hold the Ex-Servicemen Contributory Health Scheme, 2002 (ECHS) to be legal, valid, intra vires and constitutional but direct the respondent-Government either to waive the amount of contribution or to pay such amount on behalf those ex- servicemen who retired prior to January 1, 1996 and who intend to avail medical facilities and benefits under the said scheme by exercising option by becoming members of ECHS.\n90.  In other words, it is open to ex- defence personnel, who retired prior to January 1, 1996 to become members of ECHS and to claim medical facilities and benefits under the said scheme without payment of contribution amount. They are, however, not entitled to claim medical allowance in future. The writ petition is accordingly disposed of. Rule is made absolute to the extent indicated above.\n91.  In the facts and circumstances, however, parties are directed to bear their own costs.\nPetitions disposed of.\n"}
+{"id": "NQLlpIn8sr", "title": "", "text": "Anil Sharma & Ors. v State Of Jharkhand\nSupreme Court of India\n\n30 April 2004\nAppeal (crl.) 622-624 of 2003 With Crl.A. No. 798 of 2003\nThe Judgment was delivered by : Arijit Pasayat, J.\n1.  Six persons faced trial for alleged commission of offences punishable under Sections 147, 148, 149, 326, 307 read with Section 34, 452 read with Section 34 and 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). Appellant-Anil Sharma was sentenced to death. The others were sentenced to undergo imprisonment for life under Section 302 read with Section 34 IPC. Each was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.2,000/- each with default stipulation for the offence punishable under Section 307 read with Section 34 IPC.\nThe prosecution version in a nutshell is as follows:\n2.  Hare Ram Singh @ Manoj Singh (PW-6) who was the cousin of Sudhir Singh @ Bhoma (hereinafter referred to as the 'deceased') lodged fardbayan. He claimed to be an injured in the occurrence in question which took place on 22.1.1999. The occurrence is said to have taken place at 6.45 A.M. on that day in Ward No. 2 of Jail Hospital in Birsa Munda Central Jail, Ranchi and on the basis of fardbayan, Lower Bazar P.S. Case No. 12/99 was registered at 11.00 A.M. on that day and formal F.I.R. (Ext. 8/1) was drawn up. The said Fardbayan (Ext.8) along with the formal F.I.R. (Ext.8/1) was received in the court of C.J.M., Ranchi on 23.01.1999.\n3.  Recital in the fardbayan was that PW-6 had gone to Ward No. 2 of the Jail Hospital at 6.45 A.M. on 22.01.1999 as usual to his cousin deceased Sudhir Singh @ Bhoma from his Ward No. 6 of the Jail and he used to sit with Sudhir for the whole day and he also used to keep his clothes etc. there. Soon thereafter, when he was talking with deceased Sudhir Singh, accused- appellants Anil Sharma, Sushil Srivastava, Niranjan Kumar Singh, Md. Hasim @ Madhu Mian all armed with Chhura, Bablu Srivastava and Gopal Das armed with belt and iron rod respectively along with 10 or 12 other persons came near deceased Sudhir Singh and appellant Anil Sharma caught hold of his collar and at this stage deceased asked as to \"what has happened, brother\" and in the meantime appellant Anil Sharma assaulted him by Chhura and appellant Sushil Srivastava, Niranjan Kumar Singh and Md. Hasim @ Madhu Mian made assault on him by Chhura with which they were armed and appellant Bablu Srivastava and Gopal Das also assaulted him by belt and iron rod respectively, besides 10 or 12 other persons aforesaid who had surrounded and assaulted him.\nThe informant (PW-6) requested appellant Anil Sharma to let off and leave deceased Sudhir Singh and also enquired as to what is the matter, but no avail and the deceased fell on the ground as a result of injuries sustained. Appellant Anil Sharma thereafter mounted attack on the informant and inflicted a blow on his neck by Chhura and appellant Sushil Srivastava and Niranjan Kumar Singh assaulted him by Chhura causing bleeding injury on his head and left hand respectively. The informant (PW-6) also fell down being injured and other persons aforesaid also assaulted him by kicks and fists. There was then the ringing of alarm bell. After few minutes the Jail constables came there blowing whistles and during that period there was a great stampede and deceased Sudhir Singh in an unconscious state along with the injured informant was shifted to R.M.C.H. Ranchi for treatment where the informant was undergoing treatment. But Sudhir Singh died on his way to the Hospital.\n4.  The trial Court found the accused persons guilty on consideration of the evidence led by the prosecution by examining 18 witnesses. Twelve witnesses were examined on behalf of the accused persons who pleaded innocence and false implication. They took a specific stand that they were in their wards inside the jail and, therefore, the question of committing any murder was totally improbable. There was no report made by Hare Ram Singh (PW-6) as claimed. The Trial Court recorded conviction and awarded sentences as afore-noted. For its conclusions Trial Court primarily relied on evidence of PWs 5 and 6, who claimed to be eye witnesses.\n5.  In view of the death sentence imposed on accused Anil Sharma a reference was made to the Jharkhand High Court under Section 366 of the Code of Criminal Procedure, 1973(in short the 'Code'). The High Court upheld the conviction as recorded by the trial Court but altered the sentence of death imposed on the accused appellant-Anil Sharma to one of life imprisonment. In substance, except the modification of sentence so far as accused appellant Anil Sharma is concerned, the appeal was dismissed. Evidence of witnesses was analysed in view of the stand that the so-called eye witnesses version is clearly not capable of acceptance.\n6.  In support of the appeals, it has been submitted that there was delay in recording the FIR. There was non-examination of many vital witnesses. Evidence of the defence witnesses was not carefully analysed. PW-6 later on made a statement under Section 164 of the Code that his evidence was recorded under pressure. There were exaggerations in respect of what had been indicated in the Fardbayan as recorded. Non production of the hospital register and non examination of the Warden and Head Warden, cast serious doubts on the veracity of the prosecution version and the Courts below should not have brushed aside those infirmities lightly. The production of the register and the examination of the warden and head warden would have established that place of occurrence as indicated is highly improbable. The citus has not been proved. No blood stains have been found or seized. PW-6 is not a resident of the jail. He claimed to be an inmate of Ward No.6 and though he stated that he was inside the camp of the jail, nothing material in that regard has been established.\nAs soon as PW-6 came out of the jail in May 2001, he filed an affidavit stating as to how the statements made by him during trial were wrong. It has been erroneously held that no prejudice was caused by not getting him re-examined. Different yardsticks have been adopted for the prosecution and the defence witnesses. PW-5's presence at the spot of occurrence as claimed is highly doubtful. The canteen manager himself has improbabilised the presence of the witnesses. Even if it is accepted that PW-5 was present his evidence does not guarantee truthfulness. There was no corroborative material. After having discarded the evidence of PWs 1, 2 and 4 there was no justification to act on the evidence of PWs 5 and 6. The FIR has been despatched after considerable delay and there has been delayed examination of PW-5. So far as PW-5 is concerned, he was examined under Section 164 of the Code. He has not named Sushil Srivastava in the statement recorded before the Magistrate though in the cross examination he accepted that what was stated before the Magistrate was correct. The assault part as indicated by PW-6 in the so-called FIR was given a go by in Court. Though in the FIR it was stated that the assault was made by respective weapons the Court has come to a presumptive conclusion that no physical assault was made but by holding the head the killing by accused Anil Sharma was facilitated.\n7.  Section 34 IPC has been wrongly applied. There was no specific role attributed to any of the accused persons except the accused Anil Sharma. The inconsistency between the evidence of PWs 5 and 6 probabilises the defence version. Even if it is accepted that the accused persons except accused Anil Sharma were present if there was no participation the conviction as made is not maintainable.\n8.  In response, learned counsel for the State submitted that in addition to the evidence of the aforesaid witnesses, the evidence of other PWs more particularly, PW-12 shows that the occurrence took place inside the jail. The concurrent views of the trial Court and the High Court should not be interfered with. The evidence of PWs 5 and 6 shows that they are reliable and believable. Merely because some documents have not been produced that does not in any way dilute the prosecution version or render the evidence of the eye-witnesses doubtful. No prejudice has been caused to the accused in any manner by not accepting the prevaricating stand of PW-6.\n9.  The evidence of PWs 5 and 6 has been attacked by the accused-appellants on the ground that their presence at the alleged spot of occurrence is not believable. Non-production of certain documents and non-examination of some of the official witnesses were pressed into service. It is true that PW-6 made an application for getting examined afresh and the same was turned down. Again the defence filed a similar application. The Court considered the same and found it to be without substance. PW-6 was examined in Court on 22.1.2000, 25.1.2000 and 27.1.2000. He made an application before Trial Court on 17.7.2001 about alleged pressure on him to depose falsely. A bare reading of the same shows that the same is extremely vague and bereft of substance. Though it was stated pressure was put on him and he was subjected to third degree treatment, he has not specifically named anybody and made vague mention about \"some police officials\".\n10.  Further, the accused at different stages prayed to recall PWs 5 and 6 which the Trial Court rejected. The orders had attained finality. The petition of PW-6 was considered in detail by the Trial Court and was rejected by order dated 8.8.2001. It appears that accused persons had filed an application on 3.7.2001 with a prayer to examine PW-6. Same was also rejected by order dated 5.9.2001. Both the orders dated 8.8.2001 and 5.9.2001 attained finality and also do not suffer from any infirmity.\n11.  So far as one of the points which was highlighted was that no cogent reasons have been given to discard the prayer made by PW-6 for his fresh examination. This aspect was specifically urged before the High Court and has been considered. It was held that the plea appeared to be after thought and there was no cogent reason for accepting the prayer. It is true that in a given case the accused can make an application for adducing additional evidence to substantiate his claim of innocence. Whenever any such application is filed before the Court, acceptability of the prayer in question is to be objectively considered. The High Court has elaborately dealt with this issue and concluded as to how the prayer was rightly held to be not tenable.\n12.  It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine or cavalier manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court ultimately can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.\n13.  Non-production of documents which the appellants claim would have strengthened the claim of absence of PW-5 cannot in any way dilute the evidentiary value of the oral testimony. Even though the witnesses have been cross-examined at length, no material inconsistency has been elicited to discard the evidence of PWs 5 and 6. One of the pleas which was pressed into service is alleged relationship of PWs 5 and 6 with deceased and their criminal antecedents. As rightly noticed by the High Court on the aforesaid basis the evidence which is found truthful and credible otherwise should not be discarded. The Courts have to keep in view that in such matters deep scrutiny is necessary. After having kept these principles in view the Trial Court and the High Court have found that the evidence when carefully analysed on the whole was credible. After deep scrutiny the Courts below have found that there is ring of truth in the evidence of PWs 5 and 6.\n14.  So far as the delay in despatch of the FIR is concerned, it was noted by the High Court that the informant's Fardbayan was recorded at 10.00 a.m. on 22.1.1999. The inquest report was prepared on 22.1.1999 at 1925 hours. The inquest report was prepared by Executive Magistrate and the case number is also mentioned. That being so, plea that the Fardbayan being ante timed has not been established. Post mortem was conducted on 22.1.1999 at 2200 hours. Above being the position, there can be no grain of doubt that the Fardbayan was recorded on the date of occurrence and filed at the indicated time and the case has been instituted on the basis of the said Fardbayan. Finding recorded by the High Court that Fardbayan was not ante timed is amply supported by evidence on record and no adverse view as claimed by the accused-appellants can be taken.\n15.  So far as the question as to whether equal treatment being given to the evidence of prosecution and defence witnesses is concerned, there can be no quarrel with the proposition in law. In the present case it is not that the Courts below glossed over the evidence of defence witnesses. In fact detailed analysis has been made to conclude as to why no importance can be attached to their evidence. After carefully analysing the prosecution evidence and that tendered by the accused, the trial Court recorded the conviction. The High Court in appeal made further detailed analysis of the evidence and came to hold that there was no infirmity in the conclusions of the trial Court. The conclusions are not shown to suffer from any infirmity whatsoever to warrant interference.\n16.  Another point stressed by learned counsel for appellant relates to applicability of Section 34 IPC.\n17.  Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109), 1976 Indlaw SC 468 the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.\n18.  As it originally stood the Section 34 was in the following terms :\n\"When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.\"\n19.  In 1870, it was amended by the insertion of the words \"in furtherance of the common intention of all\" after the word \"persons\" and before the word \"each\", so as to make the object of Section 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118). 1945 Indlaw PC 14\n20.  The Section does not say \"the common intention of all\", nor does it say \"and intention common to all\". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899), 1993 Indlaw SC 1030 Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.\n21.  The legality of conviction by applying Section 34 IPC in the absence of such charge was examined in several cases. In Willie (William) Slaney v. State of Madhya Pradesh (AIR 1956 SC 116) 1955 Indlaw SC 80 it was held as follows :\n\"Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.\nIn such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant\".\n22.  The above position was re-iterated in Dhanna etc. v. State of Madhya Pradesh (AIR 1996 SC 2478). 1996 Indlaw SC 2240\n23.  Section 34 IPC has clear application to the facts of the case on all fours, and seems to have been rightly and properly applied also.\n24.  Looked at from any angle, judgment of the High Court does not suffer from any infirmity to warrant interference. The appeals fail and are dismissed.\nAppeal dismissed\n"}
+{"id": "0lnXv2Rra6", "title": "", "text": "Damji Valji Shah And Another v Life Insurance Corporation Of India & Ors.\nSupreme Court of India\n\n8 April 1965\nCIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 676 and 677 of 1962. Appeals by special leave from the judgment and order dated February 2,7. 1960 of the Life Insurance Tribunal,\nThe Judgment was delivered by : Raghubar Dayal, J\n1.  These appeals, by special leave, are against the decree of the Life Insurance Tribunal, Nagpur, in proceedings on an application by the Life Insurance Corporation of India (hereinafter called the Corporation) under s. 15 of the Life Insurance Corporation Act, 1956 (Act XXXI of 1956), shortly termed as the LIC Act, for ordering the Vishwabharti Insurance Company, Bombay. Damji Valji Shah and Jayantilal Hirijibhai Chawda, appellants in the C.A. 676 of 1962, Ghanshyamdas, appellant in C.A. 677 of 1962, the aforementioned individuals being directors of the Vishwabharti Insurance Company, and another director, to pay to the Corporation jointly and severally the sum of Rs. 82,000/- together with interest there at 6 % per annum from September 1, 1956, till full payment. The decree ordered the company to pay a further sum. but we are not concerned with that part of the decree as the company has not appealed against it.\n2.  The facts of the case briefly are these. The company was a composite insurer. i.e., an insurer who carried on. in addition to life insurance business. other classes of-insurance business. The LIC Act came into force on july 1. 1956 and the Corporation was established on September 1. 1956 which was the \"appointed day\" according to s. 2(1) of that Act. On that day. in view of s. 7. all the assets and liabilities appertaining to the life insurance business (called the controlled business, vide s. 2(3)) of the Company stood transferred to and vested in the Corporation. It was found that certain amounts which had been transferred from the Life Insurance Fund in the books of the company to the General Department had not been transferred in accordance with the provisions of the Insurance Act 1938 (Act 4 of 1938) which governed the company and should have continued to be included in the assets appertaining to the controlled business of the company. It was therefore that an application under s. 15 of the LIC Act was made by the Corporation to the Tribunal.\n3.  We may now state how this amount of Rs. 82.000/- happened to be transferred from the Life Insurance Fund (or the Life Fund) of the company to its General Department. The company had to keep separate accounts of all receipts and payments m respect of each class of insurance business. in view of s. 10(1) of the Insurance Act. It had to maintain d Life Fund in connection with its life insurance business in view of s. 10(2). Sub-s. (2) provided that where an insurer carried on business of life insurance. all receipts due in respect of such business be curried to and would form a separate fund called the Life insurance Fund and its assets be kept distinct and separate from all other assets c, If the insurer and deposits made by the insurer in respect of life insurance business. Sub-s. (3) of s. 10 provided that the life insurance fund would be as absolutely the security of the life policy holders as though it belonged to an insurer carrying on no other business than life insurance business and that it should not be applied directly or indirectly for any purpose other than those of the life insurance business of the insurer. The amount in this fund had to be sufficient to meet the net liabilities in regard to the life insurance policies issued by the company, If it was not so maintained. the company stood the chance of being barred from carrying on life insurance business.\n4.  By resolution dated December 18, 1948. Rs. 1.10.000/- were transferred from the General Department to the Life Department as advance to the Life Department Revenue Account for being added to the Life Fund. subject to the condition that the Life Department would not be liable to pay any interest thereon and that no repayment of the lcan would be made except out of the valuation surplus of the Life Department. The first actuarial valuation report of the company for the year 1944 -48. dated July 18 1949, showed that the net liability of the company was Rs. 6,55,7 18/and that the amount in the Life Fund was Rs. 6,57,450/and therefore the fund showed a surplus of Rs. 1,732/- over the net liabilities. If the sum of Rs. 1,10,000/- had not been transferred to the Life Department Revenue Account prior to December 31, 1948, this valuation report would have shown the net liability exceeding the amount in the life fund by about a lakh of rupees. It is clear that the amount was so transferred in order to avoid the consequences of the net liabilities exceeding the Life Fund.\n5.  The Profit & Loss Appropriation Account for the year 1949 shows that Rs. 60,000/- out of this amount of Rs. 1,10,000/- was written off as the company had made profits. Rs. 32,000/- were again similarly transferred to the Life Fund from the General Department with retrospective effect from December 31, 1952 in order to strengthen the position of the Life Fund.\n6.  The second actuarial valuation report for the period 1949-52, dated September 9, 1953, showed that the policy liability amounted to Rs. 15,3,3,068, that the Life Fund stood at Rs. 15,35,890/- and that thus the Life Fund exceeded the net liability by Rs. 2,822/-. There was thus a surplus as Rs. 32,000/- had been transferred to strengthen the Life Fund, with retrospective effect in view of the resolution dated August 20, 1953 which reads.\n\"Resolved that a loan of Rs. 32,000/- (thirty two thousand only) bearing no interest be hereby given to Life Department by General Department with retrospective effect as on 31st December 1952, the repayment of which shall be made only out of the future Valuation Surplus or surpluses of the Life Department or it may be written off from the future profits of the General Department. This will have effect in the accounts of the Company for the year ended 31 st December 1952.\"\n7.  It is to be noted that this resolution itself said that the amount would be repaid only out of the future Valuation Surplus or pluses of the Life Department or might be written off from the future profits of the General Department.\n8.  It was this amount of Rs. 82,000/-(Rs. 50,000,'- plus Rs. 32,000/-) which, by a resolution dated January 6. 1956 was transferred to the General Department from the Life Fund. The resolution reads:\n\"Resolved that a loan of Rs. 82,000/- (eighty two thousand only) advanced to Life Department Revenue Account by General Department be and is hereby repaid to Genera1 Department and the balance of Rs. 60,000/- due to General Department by Life Department Revenue Account be and is hereby kept in reserve for future and hence no adjustment in regard to Rs. 60,000/- will be made for the present.\"\n9.  This resolution was confirmed by the Board of Directors at its meeting dated February 6, 1956.\n10.  We may now refer to the changes in law with respect to life insurance business in 1956 and an anticipation of which probably led to the resolution of January 6, 1956. On January 19, 1956, the Life Insurance (Emergency Provisions) Ordinance, 1956 (Ord. No. 1 of 1956) was promulgated by the President. It came into force from that day which was called the 'appointed day'. S. 3(1) provided that the management of the 'controlled business' of a11 insurers would vest in the Central Government on and from the appointed day. 'Controlled business', according to cl. (2) of s. 2, meant all the business appertaining to the life insurance business, if the insurer carried on any other class of insurance business also. Cl. (b) of sub-s. (3) prohibited the incurring of any expenditure by the insurer without the previous approval of the person specified by the Central Government in that behalf, from the assets appertaining to the controlled business otherwise than for the purpose of making routine payments etc., specified in that clause. Those purposes do not include the repayment of an advance made from the General Department to the Life Fund or to the Life Department Revenue Account. Cl. (c) of sub-s. (3) further prohibited the insurer, without the previous approval of the authorised person, to transfer or otherwise dispose of any such assets appertaining to the controlled business or create any charge or hypothecation, lien or other encumbrance thereon. It would therefore appear that possibly the Board of Directors were not right in confirming the resolution of January 6, 1959 after the Ordinance had come into force. However, that is not the point raised in these proceedings.\n11.  We have already referred to the coming into force of the LIC Act an July 1, 1956 and of the transfer and vesting in the Corporation of all the assets and the liabilities pertaining to the life insurance business in view of s. 7 of that Act. S. 15 provides that the Corporation may apply for relief to the Tribunal in respect of a transaction which is made by the insurer whose controlled business had been transferred to and vested in the Corporation under the Act at any time within 5 years before January 19, 1956 and by which the composite insurer has transferred any property from his life department to his general department without consideration or for an inadequate consideration and the transfer was not reasonably necessary for the purpose of the controlled business of the insurer or was made with an unreasonable lack of prudence on the part of the insurer regard being had in either case to the circumstances at the time. The Corporation, in such proceedings, had to make all parties to the transaction parties to the application.\n12.  Sub-s. (2) of s. 15 empowered the Tribunal to make such order against any of the parties to the application as it thought just having regard to the extent to which those parties were respectively responsible for the transaction or benefited from it and all the circumstances of the case. S. 16 provided for the payment of compensation to the insurer whose Controlled business had been transferred to and vested in the Corporation under the Act. s. 17 provided for the constitution of Tribunals which were empowered by sub-s. (4) to regulate their own procedure and decide all matters within their competence. Section 41 provided that no civil Court would have jurisdiction to entertain or adjudicate upon any matter which a Tribunal was empowered to decide or determine under the Act. Section 44 inter alia provided that nothing contained in the Act would apply in relation to any insurer whose business was being voluntarily wound-up or was being wound-up under orders of the Court.\n13.  The Corporation, by its application under s. 15, contended that the transfer of Rs. 82,000/- from the Life Fund to the General Department under the resolution of January 6, 1956, was illegal. being contrary to and in contravention of the Insurance Act and as such was inoperative, bad in law and not binding on the petitioner. It was further contended that the said transfer was without consideration and was not reasonably necessary for the purpose of the controlled business of the company and/or was made with unreasonable lack of prudence on the part of the company, regard being had to the circumstances at the time. It was therefore that it prayed inter alia for a decree against the respondents for a sum of Rs. 82,000/- with interest. It impleaded the company as respondent No. 9, the appellants in C.A. 676 of 1962 as respondents Nos. 1 and 4 and the appellant in C.A. 677 of 1962 as respondent No. 2. Ghanshyamdas and Damji Valji were also parties to the resolution dated February 7. 1956. Other directors who were parties to the resolution of January 6 were also impleaded.\n14.  The aforesaid three directors, the appellants before us, contested the claim of the Corporation and justified the transfer of Rs. 82,000/- to the General Department from the Life Fund on the ground that the amount had been lent by the General Department to the Life Department and had been paid back to the General Department by transfer from the Life Fund when the LifE Fund showed surplus, according to the report of the Actuary dated July 25, 1955. It was also contended before the Tribunal that the petition could not be proceeded with without the leave of the Bombay High Court in view of s. 446 of the Indian Companies Act and that the petition was also not maintainable by reason of s. 44 of the LIC Act. Several other grounds were also taken before the Tribunal. We are not now concerned with them.\n15.  The Tribunal held that the amounts of Rs. 1,10,000/- and Rs. 30,000/- were not advanced to the Life Department as loans and that the transfer of Rs. 82.000/- was not out of the valuation surplus and that therefore the transfer of this amount could not be said to be for consideration and necessary or reasonably necessary for the purpose of the controlled business of the company or even a prudent transaction having regard to the interest of the life policy holders. It held that no leave of the Bombay High Court was necessary for proceeding with the petition and that the petition was maintainable and that s. 44 of the LIC Act did not bar the applicability of the provisions of the Act to the respondent company. It therefore decreed the suit and ordered the company and the directors, respondents 1 to 4, to pay to. the Corporation jointly and severally a sum of Rs. 82,000/- together with interest thereon at 6 per cent per annum from September 1, 1956 till full payment. It is against this decree that C.A. 676 of 1962 has been filed, by special leave, by Damji Valji Shah and Jayantilal Hirjibhai Chawda and C.A. 677 of 1962 by Ghanshyamdas. This judgment will govern both these appeals.\n16.  The points raised by learned counsel for the appellants are: (i) The Tribunal had no jurisdiction to proceed with the proceedings on the petition presented by the Corporation without the leave of the High Court in view of s. 446 of the Companies Act, 1956, the company having been ordered to be wound-up by the High Court on November 9, 1959, (ii) In view of s. 44(a) of the LIC Act none of the provisions of the Act applied to the company and therefore the Tribunal could not proceed on the application of the Corporation subsequent to the company being wound-up. (iii) The transfer of Rs. 82,000/- from the Life Fund to the General Department of the company was for consideration and was necessary for the life insurance business.\n17.  The fourth point sought to be urged was that the provisions of s. 15(1)(f) of the LIC Act were ultra rites as they contravened the provisions of Arts. 14 and 19 of the Constitution. This contention was not raised before the Tribunal during the arguments and was therefore considered by it to have been abandoned. We did not therefore allow it to be raised before us.\n18.  Sub-s. (1) of s. 446 of the Companies Act provides that when a winding-up order has been made or the Official Liquidator has been appointed as Provisional Liquidator. no suit or other legal proceeding shall be commenced or, if pending at the date of the winding-up order, shall be proceeded with against the company except by leave of the Court and subject to such terms as the Court may impose. Sub-s. (2) provides. inter alia, that the Court which is winding-up the company shall, notwithstanding anything contained in any law for the time being in force, have jurisdiction to entertain or dispose of any suit or proceeding and any claim made by or against the company.\n19.  Sub-s. (3) provides that any suit or proceeding by or against the company which is pending in any Court other than that in which the winding-up is proceeding may, not- withstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that Court. The question is whether these provisions would affect the proceedings of the Tribunal.\n20.  In this connection, reference may be made to s. 41 of the LIC Act which provides that no civil Court shall have jurisdiction to' entertain or adjudicate upon any matter which a Tribunal is empowered to decide or determine under that Act. It is not disputed that the Tribunal had jurisdiction to entertain the application of the Corporation and adjudicate on the matters raised thereby. The Tribunal is given the exclusive jurisdiction over this matter.\n21.  It is in view of the exclusive jurisdiction which sub-s. (2) of s. 446 of the Companies Act confers on the company Court to entertain or dispose of any suit or proceeding by or against a company or any claim made by or against it that the restriction referred to in sub-s. (1) has been imposed on the commencement of the proceedings or proceeding with such proceedings against a 'company after a winding-up order has been made. In view of s. 41 of the LIC Act the company Court has no jurisdiction to entertain and adjudicate upon any matter which the Tribunal is empowered to decide or determine under that Act. It is not disputed that the Tribunal has jurisdiction under the Act to entertain and decide matters raised in the petition filed by the Corporation under s. 15 of the LIC Act. It must follow that the consequential provision of sub-s. (1) of s. 446 of the Companies Act will not operate on the proceedings which be pending before the Tribunal or which may be sought to be commenced before it.\n22.  Further, the provisions of the special Act i.e, the LIC Act, will over-ride the provisions of the general Act viz., the Companies Act which is an Act relating to companies in general.\n23.  It is however contended for the appellants that in view of s. 44(a) of the LIC Act, s. 41 will not apply to the company whose business was being wound-up under orders of Court and that therefore the provisions of s. 446 of the Companies Act will affect the proceedings before the Tribunal. The contention is not sound. The question of the applicability of the Act to a particular insurer is to be considered in relation to facts existing when the Act came into force. In view of s. 44 of the LIC Act it will not apply to an insurer whose business is being wound-up under orders of Court at the time when that Act came into force in 1956 or on the 'appointed day' i.e., September 1, 1956. when the assets and liabilities pertaining to the controlled business of the company stood transferred and vested in the Corporation. The company was not being wound-up under orders of the Court on July 1, 1956 when the Act came into force or on the appointed day mentioned earlier. The Act did apply to the company. It cannot cease to apply merely because subsequently the company was ordered to be wound-up.\n24.  The word 'insurer' is defined in cl. (6) of s. 2 of the LIC Act and means an insurer as defined in the Insurance Act who carries on life insurance business in India and includes the Government and a provident society as defined in s. 65 of the Insurance Act. On November 9, 1959, when the company was ordered to be wound up it was not an 'insurer' within the meaning of the definition as the company did not carry on life insurance business in India on that date. Its life insurance business had been taken over by the Corporation on the appointed day and it ceased to carry on that business thereafter. It follows therefore that the company was not an insurer on November 9. 1959 and cannot take advantage of the provisions of cl. (a) of s. 44 of the LIC Act.\n25.  We are therefore of opinion that the Tribunal had jurisdiction to continue the proceedings after November 9, 1959 when the company was ordered to be wound-up and that the provisions of s. 446, Companies Act, or s. 44(a), LIC Act, do not in any way affect its jurisdiction to continue the proceedings.\n26.  We now come to the third point raised for the appellants. We agree with the Tribunal that the amounts of Rs. 1.10,000/-and Rs. 32,000/- were not lent to the Life Department as such by the General Department. No question of lending money by one department of the company to the other can be ordinarily contemplated. The assets of the company really constitute one entity, even though the company maintains separate accounts with respect to its various insurance business. It carried on other types of insurance business also. We have already shown how the provisions of the Insurance Act require the company to keep a separate account for the life insurance business and to have a separate fund known as the Life Insurance Fund and to which were to be credited receipts due in respect of the life business and the amount deposited by the insurer in respect of life insurance business. Such a deposit is to be made in view of s. 7(1) of the Insurance Act. This requires' the insurer to deposit and keep deposited with the Reserve Bank of India for and on behalf of the Central Government either in cash or in approved securities or partly in cash and partly in approved securities the sums specified in the various clauses in regard to the different types of life insurance businesses.\n27. Cl. (a) requires a deposit of Rs. 2,00,000/- where the business done or to be done is life insurance only. Cl. (e) requires a deposit of Rs. 3,00,000 /- where the business done or to be done is life insurance and any one of the three el. asses mentioned in cls. (b) to (d). Cl. (e) further provides that out of the deposit of Rs. 3,00,000/-, Rs, 2.00,000/'-shall be the deposit for 'life insurance business. S. 7 lays down a statutory amount which the insurer has to deposit. It does not however restrict the insurer to deposit a larger amount in respect of life insurance business. s. places certain restrictions about the use to be made of the deposits under s. 7. s. 8(2) however deals with any deposit and provides that where a deposit is made in respect of life insurance business, the deposit made in respect thereof shall not be available for the discharge of any liability of the insurer other than liabilities arising out of policies of life insurance issued by the insurer. This means that when an insurer puts certain money in the funds pertaining to the life insurance business and especially to a life insurance fund. such an amount can be used only for the discharge of liabilities of the insurer arising out of life insurance policies issued by him.\n28.  The amounts of Rs. 1,10,000/- and Rs. 32,000/- would thus amount to deposits made by the company in respect of life insurance business in order to augment the life fund. This can be done either to bring the funds to an amount exceeding the expected net liabilities on the policies or merely to augment that fund. It makes no difference to the company how it distributed its funds so long as its statutory liabilities were satisfied.\n29.  The very conduct of the company with respect to these amounts belies the alleged nature of the transfers of these amounts to the Life Department. The sum of Rs. 60,000/-out of Rs. 1.10,000/- was written off in 1949. A loan of such an amount is not usually written off. No special reason is assigned for writ ing off the loan. The resolution about the transfer of Rs. 32,000,'itself speaks of the possibility of the amount being written off. A lender does not think in this way at the time he advances a loan. It is clear that the amount was really being transferred to the Life Fund through the Life Department Revenue Account as otherwise the Life Fund on the actuarial valuation would have stood at a figure much below the amount of the net liabilities on the policies as calculated in Form H, Schedule Four to the Insurance Act which is a Form giving summary and valuation of the policies of the company as at the date of the valuation. Form I is for the valuation balance-sheet of the company at the corresponding date and requires in one column the net liability under business as shown in the summary and valuation of policies and in the other column the balance of life insurance fund as shown in the balance sheet, and also provides for noting the eventual position about the Life Fund being in surplus or in deficiency as compared to the net liability. When the amount was not lent as a loan, no question of its repayment as such could have arisen in 1956. of course, whenever the Life Fund showed an actuarial valuation surplus that surplus or part of it could be transferred to the General Department according to the desire of the management.\n30.  The amount of Rs. 82,000/- was not transferred as a result of the actuarial valuation as contemplated by the various resolutions which authorised the transfer of the amount from the General Department to the Life Department Revenue Account. It was definitely provided in those resolutions that no repayment of the amount would be made except out of valuation surpluses of the Life Department.\nThe expression 'valuation surplus' has a technical meaning under the Act.\n31. S. 13(1) of the Insurance Act provides that every insurer carrying 0n life insurance business shall. in respect of the life insurance business transacted in India cause once at least in every three years an investigation to be made by an actuary into the financial condition of the life insurance business carried on by him, including the valuation of his liabilities in respect thereto. An abstract of the report of the actuary is to be made in accordance with the regulations contained in Part I of the Fourth Schedule and in conformity with the requirements of Part II of that Schedule. S. 13(2) provides that the provisions of sub-s. (1) regarding the making of an abstract shall apply whenever at any other time an investigation into the financial condition of the insurer is made with a view to the distribution of profits or an investigation is made of which the results are made public. The abstract is to be certified on behalf of the insurer to the effect that full and effective particulars of every policy under which there is a liability either actual or contingent have been furnished to the actuary for the purpose of investigation.\n32.  Section 15 requires the submission of the aforesaid abstract to the Controller within the specified period. Part II of the Fourth Schedule requires that every extract prepared in accordance with the requirements of that part of the Schedule will have the statement of a consolidated revenue account in Form G, a summary and valuation in Form H. a valuation balance sheet in Form I and a statement in Form DDD as set forth in Part H of/he Third Schedule annexed to it. The valuation balance sheet in Form I requires the noting of a surplus, if any, of the balance of the life insurance fund as compared to the net liability in the business as shown in the summary and valuation of policies. It is the surplus no, led in this\n33.  Form 1 which is really the valuation surplus. It was out of such surplus that the company resolved that the advances of Rs. 1,10,000/and Rs. 32,000/- could be paid to the General Department by the Life Department. No such actuarial valuation was made by the actuary prior to the transfer of Rs. 82,000/- to the General Fund by the resolution dated January 6, 1956.\n34.  Reliance in this connection is placed on behalf of the appellants on the letter of the actuary dated July 25, 1955. The actuary states:\n\"On the above basis, the valuation shows a policy liability of Rs. 20,20,421. The Life Insurance Fund is Rs. 21,32,455. Thus there is a surplus of Rs. 1.12.033. The surplus includes Rs. 53,300 being the amount of appreciation on investments taken into account by you in the past two years. Thus the net working surplus is Rs. 58,733/-.\nThe cost of Bonus at the rate of Rs. 10/- per thousand is approximately Rs. 48,000/-.\nThus the surplus is sufficient to enable a bonus declaration at the above rate even after excluding the appreciation amount or setting it apart as an additional reserve for future use.\nConclusion: The result is satisfactory. Continuing the same method of working as you have followed. the statutory valuation as on 31-12-55 will surely enable you to declare a higher bonus.\"\n35.  Firstly, it does net appear that the actuary had really conducted an investigation and submitted the valuation report as required by s. 13, of the Insurance Act. There is nothing on the record to show that any abstract in Form I, Fourth Schedule, was prepared and submitted to the Controller. Further. the letter shows that the net working surplus was only Rs. 58,733/- as the ostensible surplus of Rs. 1,12,033/- included Rs. 53,300/- by which certain investments of the company had appreciated in that period. When the net working surplus was much less than Rs. 82,000/- which were transferred from the Life Department to the General Department, the transfer of Rs. 82,000/- cannot be said to have been in accordance with the terms on which the alleged loan was made to the Life Department from the General Department. When the Life Department had not Rs. 82,000/- with itself, there could not have been any necessity to pay that amount to the General Department. In fact, the alleged loan could be paid only when there would have been a valuation surplus in the accounts of the lfie Department but this does not mean that the Life Department was bound to pay back the amount the moment it had any valuation surplus.\n36.  Its liability to pay the alleged loan could arise only when there was a valuation surplus. Its paying the amount actually would depend upon the circumstances prevailing at the time.\n37.  In the circumstances, we cannot resist the conclusion that the Directors passed a resolution for the transfer of this amount January 6, 1956 in anticipation of some law depriving the company of its life insurance business. It may be that it was a close secret that an Ordinance would be issued on January 19. But all the same, possibly. persons in the insurance world could have had an inkling of the trend of events.\n38.  The content of the resolution passed on January 6, indicates that the directors had no clear idea at the time as to how much the Life Department, according to them, owed to the General Department. The resolution speaks not only of the transfer of Rs. 82,000/- to the General Department but also refers to the balance of Rs. 60,000/- due to the General Department by the Life Department Revenue Account. The amount had been written off in 1950 and could not have thereafter been considered to be a loan advanced to the Life Department Revenue Account from the General Department. It seems that the resolution was passed in some hurry and the Directors couId not definitely decide as to how any further amount upto Rs. 60,000/- could be taken back to the GeneraI Department from the Life Department Revenue Account. Any way, such a resolution of the Directors indicates that any entries with respect to the alleged loans were made for the purpose of accounting and the necessities of the business. Money in the Life Fund had to be augmented in 1948 and 1952 in order to make the Life Fund exceed the net liabilities of the company on account of the life insurance policies.\n39.  We are therefore of opinion that the Tribunal took a correct view about the nature of the transfer of Rs. 1,10,000/- in 1948 and Rs. 32,000/- in 1952 to the Life Insurance Fund and rightly held that the transfer of Rs. 82,000/- to the General Department by' resolution dated January 6, 1956, was not in accordance with the provisions of the Insurance Act and that consequently that amount continued to form part of the assets of the life insurance business of the company upto September 1, 1956 and that as such vested in the Corporation which could recover it from the company and the directors responsible for the transfer of the amount to the General Department.\n40.  The appeals therefore fail and are dismissed with costs, one hearing fee.\nAppeals dismissed\n"}
+{"id": "E4rXLvNMQS", "title": "", "text": "Haridas Exports v All India Float Glass Manufacturers' Assn. and Others\nSupreme Court of India\n\n22 July 2002\nAppeal (civil) 2330 of 2000 and C.A. Nos. 3572 of 2000, 76 of 2002 , C.A. No. 4238/2000 of 2002 @ S.L.P. (C) No. 22549 of 2001 and C.A. No. 3562 of 2000\nThe Judgment was delivered by : B. N. Kirpal, J.\nCivil Appeal Nos. 2330 of 2000, 3572 of 2000, 76 of 2002 and S.L.P.(C )No. 22549 of 2001.\n1.  Leave granted.\n2.  These appeals are against orders passed by the Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as the \"MRTP Commission\") whereby Indonesian manufacturers of float glass had been restrained from exporting the same to India at allegedly predatory prices.\n3.  Respondent No.1 is an association of float glass manufacturers in India. During March-April 1998, complaints were made by the said respondent to the Customs Department, alleging that the Indonesian manufacturers of float glass, in association with Indian importers were allegedly indulging in heavy under-invoicing. The respondents were, however, informed by the Customs Department in Calcutta that if they had any genuine grievance, the same could be made before the Designated Authority, Ministry of Commerce dealing with anti-dumping complaints. On 26 May 1998, the respondent No.1 presented a complaint before the Designated Authority. This complaint appears to have been filed before the Anti-Dumping Authority and the same was possibly not pursued by the complainant.\n4.  On 10 September  1998, the respondent No.1 filed a complaint before the MRTP Commission u/s. 33(1)(j), (ja) and Section 36A read with S. 2(o) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the 'MRTP Act') against three Indonesian companies alleging that they were manufacturing float glass and were selling the same at predatory prices in India, and were hence resorting to restrictive and unfair trade practices. In the complaint, it was stated that the float glass of Indonesian origin was being exported into India at the CIF price of US$ 155 to 180 PMT. At this price, some float glass had been shipped into India during the period December 1997, to June 1998.\n5. It was alleged that these sale prices were predatory prices as they were less than not only the cost of production for the product in Indonesia but also the variable cost of production of the product. The complainant gave figures indicating the estimated cost of float glass internationally as well as the cost of production of float glass in India with a view to demonstrate that the Indian manufacturers of float glass would not be able to compete with the price at which the Indonesian manufacturers were presently selling or intending to sell to Indian consumers. On this basis, it was contended that the sale of float glass by the Indonesian manufacturers at the said price of US$ 155 to 180 PMT will restrict, distort and prevent competition by pricing out Indian producers from the market. This would result in lowering the production of the Indian industry and the consequent idle capacity and losses would force the industry to become sick which would lead to its closure which would have a direct impact on the employment in the industry. In response to the notice issued to the Indonesian companies, M/s P.T. Mulia Industries (respondent No. 2 in this appeal) wrote a letter to the MRTP Commission stating that it had never in the past exported float glass to India. The other two respondents did not send any reply to the Commission. The appellant, however, which is the Indian importer of the float glass from Indonesia had filed a caveat before the Commission. It also filed a reply refuting the allegations of the respondent and it was the contention of the appellant that respondent No.1 was a cartel of Indian manufacturers of float glass which was, in fact, exporting out of India at prices far lower than their own cost of production in India. It was also contended by the appellant herein that the cost of production of float glass was lower in Indonesia than in India and float glass was not being exported to India at predatory prices.\n6.  The application under Section 12-A for interim injunction was heard by the Chairman of the Commission and a second Member. There was a difference of opinion amongst them. While the Chairman vide order dated 18 January 1999, allowed the application and restrained the Indonesian companies from exporting to India their float glass production at predatory prices, Dr. S. Chakravarthy, the second Member dismissed the application, inter alia, holding that there was no evidence to substantiate the plea of predatory pricing at this stage. By order dated 09 February 2000, the third Member who heard the case concurred with the view taken by the Chairman and passed an order of injunction against the Indonesian companies.\n7.  While Civil Appeal No. 2330 of 2000 is filed by the Indian importer who was the caveator before the Commission, Civil Appeal No. 3572 of 2000 has been filed by P.T. Muliaglass which is the subsidiary of P.T. Mulia Industrindo. It is the case of P.T. Muliaglass that the holding company does not carry out any manufacturing operations and that is why it had informed the MRTP Commission that it was not engaged in the export of float glass to India and, therefore, it did not appear before the MRTP Commission. P.T. Mulia Glass which, in fact, manufactures the float glass being aggrieved by the order of the MRTP Commission has filed the appeal, inter alia, contending that it is not exporting float glass to India at predatory prices.\n8.  On behalf of the appellant, it was submitted that the MRTP Commission had no jurisdiction to entertain and adjudicate upon the complaint which was made by the respondents. It was submitted that the essence of the compliant of the respondents before the MRTP Commission was of injury to the domestic industry on account of low prices by the Indonesian manufacturers which is a dispute under AntiDumping law and does not fall within the jurisdiction of the MRTP Commission. It was submitted that the complaint which was made against the Indonesian exporters was one essentially of dumping as it had been contended that the Indonesian exporters were exporting float glass at very low prices which were predatory in nature and the intention was to cause injury to the domestic industry.\n9.  It was submitted that Article 18.1 of the WTO Agreement on Implementation of Art. VI of the GATT, 1994, provides that \"no specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT, 1994 as interpreted by this Agreement\". The remedy against the practice of \"dumping\"/export of goods at \"predatory prices\" has been expressly agreed upon internationally under the General Agreement on Tariffs and Trade (GATT) to which India is a signatory. The Agreement deals with anti-dumping duties and provides mechanism to implement it.\n10.  In pursuance of the GATT, 1994, the Parliament for the first time inserted provisions 9A to 9C in the Customs Tariff Act vide the Customs Tariff (Amendment) Act, 1995, No. 6 of 1995 which replaced the provisions of sections 9, 9A and 9B earlier inserted in the Customs Tariff Act under Act No. 52 of 1982. The Statement of Objects and Reasons to the Bill clearly states that the Bill seeks to amend the Custom Tariff Act to bring the provisions of the Custom Tariff Act in conformity with the provisions of Art. VI of the GATT 1994, and the agreements on subsidies and countervailing measures. Even the preamble of the Customs Tariff (Amendment) Act, 1995, No. 6 of 1995 also provides that the provisions of sections 9, 9A and 9B of the Customs Tariff Act, 1975, have been replaced by the new sections 9, 9A and 9B to reflect the changes in the domestic law, consequent upon coming into effect the Agreement on Antidumping (i.e. an Agreement on implementation of Art. VI of the GATT 1994). under the Uruguay Round on 01 January 1995.\n11.  Section 9A, inter alia, provides that where any article is exported from any country or territory to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. The said section indicates how the normal value and the margin of dumping is to be ascertained. Section 9B contains provisions which provide for exemption from levy u/s. 9 or Section 9A in certain cases while Section 9C gives the right of appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article. the Act contemplates the Designated Authority, which is appointed under it's provisions, to conduct a detailed investigation into the allegation of dumping of articles before it determines the normal value, export price and the margin of dumping. It is important to note that in undertaking this exercise, the Government or the foreign country exporting the article is required to be informed. By notification dated 01 January, 1995, Anti-Dumping Duty Rules were framed. Rule 14 sets out circumstances under which the designated authority may terminate an investigation. In Rule 14(d), there is a de-minimus requirement that is to say the volume of the dumped imports, actual or potential, should account for not less than 3% of the imports of the like product. If the imports are below this level, the authority shall terminate the investigation immediately. It is the case of the appellant that the float glass which was imported from Indonesia was much less than 3%.\n12.  The learned counsel for the appellants contended that the respondents have in the complaint filed by them with the MRTP Commission under the MRTP Act sought redressal of their alleged grievance that certain Indonesian companies are selling float glass at prices much lower than their cost of production and are thereby allegedly indulging in predatory pricing with an alleged intent to eliminate competition and causing material injury to the interest of domestic float glass industry. For redressal of the alleged grievance of the respondents, a specific remedy has been provided under sections 9A to 9C of the Customs Tariff Act and the Anti-Dumping Duty Rules. The provisions of sections 9A to 9C introduced under the Customs Tariff Act and the Anti-Dumping Duty Rules provide for a complete and exhaustive machinery to prevent dumping of goods into India including export of goods into India at predatory price causing \"injury\" to domestic industry, causing threat of injury to domestic industry and material retardation to establishment of domestic industry by way of imposition of anti-dumping duty on import of such goods. The expression \"injury\" has been defined u/art. 3 of the Agreement on Anti-Dumping as under:-\n\"Injury shall unless otherwise specified, be taken to mean material injury to a domestic industry; threat of material injury to a domestic industry or material retardation of the establishment of such an industry, and shall be interpreted in accordance with the provisions of this Article.\"\n13.  Thus, it was submitted, the remedy for imposition of antidumping duty has been provided so as to prevent distortion, impairment and restriction of competition in domestic industry. A specific authority, i.e., the Designated Authority on Anti-dumping has been constituted under the Anti-Dumping Duty Rules framed under the Customs Tariff Act which has the powers to conduct investigation upon receipt of a complaint from the domestic industry or suo motu relating to dumping of goods by a foreign company to identify the existence, degree and effect of any alleged dumping in relation to import of any article and injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry, etc. and to recommend to the Central Government the amount of anti-dumping duty to remove the injury to the domestic industry, based on which the Central Government imposes provisional or final anti-dumping duty upon importation of the concerned goods into India as a result of which the cost for the Indian importer for the imported goods and the articles becomes the same as that of fair value of such goods and articles in the domestic market. The object of the provisions of the Customs Tariff Act and the Anti-Dumping Duty Rules is thus to prevent distortion, impairment and restriction of competition caused by export of goods to India at dumped/predatory price. In view of the aforesaid, the finding of the MRTP Commission that as the provisions of the Customs Tariff Act only provide for imposition of custom duties, they have had no relevance for overriding the provisions of the MRTP Act, is erroneous, was the submission. It is also submitted that the object of the MRTP Act on the other hand generally is to check concentration of economic power to the common detriment, to control monopolies and to prohibit monopolistic and restrictive trade practices and for matters connected therewith or incidental thereto. In view of the above, the MRTP Act and the provisions of the Customs Tariff Act cover the same subject- matter as the scope and object of both the Acts is same although the MRTP Act is a general Act and the Customs Tariff Act is a special Act for the redressal of grievance of the respondents.\n14.  It was urged that where a particular subject has received special treatment under specific provisions/statute, it will exclude the applicability of the general provision(s) which might otherwise cover the said topic. Therefore, applying this well-settled law, the general provisions of the MRTP Act will be excluded in relation to any grievance and complaint pertaining to dumping/exporting of goods at predatory price from foreign country into India, with an intent to cause injury to the domestic industry which is specifically covered under the provisions of Sections 9A, 9B and 9C of the Customs Tariff Act and the Anti-Dumping Duty Rules framed there under. Therefore, Sections 9A to 9C of the Customs Tariff Act exclude the jurisdiction of the MRTP Commission in such matters.\n15.  The appellants rely on the following decisions of the Hon'ble Supreme Court which unequivocally lays down and reiterates the above mentioned principle:-\n(i) Belsund Sugar Co. Ltd. vs. State of Bihar and Others (1999) 9 SCC 620. 1999 Indlaw SC 1424\n(ii) Jogendra Lal Saha vs. State of Bihar and Others 1991 Supp (2) SCC 654 1990 Indlaw SC 272\n(iii) Life Insurance Corporation of India vs. D.J.Bahadur and Others (1981) 1 SCC 315\n(iv) Damji Valji Shah and Another Vs. Life Insurance Corporation of India and Others [1965] 3 SCR 665 1965 Indlaw SC 170\n(v) Gobind Sugar Mills Ltd. vs. State of Bihar and Others (1999) 7 SCC 76\n(vi) Shriram Mandir Sansthan vs. Vatsalabai and Others (1999) 1 SCC 657 1998 Indlaw SC 1835\n16.  On behalf of the respondents, it was submitted that the provisions of the Customs Tariff Act, 1975, relating to imposition of anti-dumping duties do not in any way oust the jurisdiction of the MRTP Commission over the restrictive trade practice of predatory pricing. It was contended that the two statutes occupied different fields and were distinct in their scope and applicability. There was no overlap or conflict between the statutes and hence the question of repeal, whether implied or express, did not arise. The Customs Tariff Act is concerned with the imposition of duties of customs. Imposition of customs duty is the policy decision of the Government in the realm of taxation. Section 9A read with the Rules provide for the determination of certain objective criteria on the basis of which the decision of the Central Government to levy anti dumping duty can be based. The Customs Tariff Act does not confer any right on any individual or Association and does not provide for any remedy to them. Only the domestic industry can approach the Designated Authority.\n17.  It was further contended that whereas predatory pricing enquiries are concerned with sales below the cost of production of the predator with the intention to eliminate competition, anti-dumping investigations are triggered when an exporter sells his products in the export market at a price below that of the price at which he sells his product in the country of origin. In anti-dumping investigations, therefore, the focus is on sale price in the country of origin as opposed to the cost of production.\n18.  According to the respondents, the MRTP Act provides for a judicial remedy for specified practices done individually or collectively. An individual consumer or a trade association or a competitor can approach the MRTP Commission. There is a right of appeal to the Supreme Court against the orders passed by the MRTP Commission. Only domestic industry has the right to initiate antidumping proceedings. Thus the scope and operation of the Acts mentioned above was different. In particular, the ingredients of transactions which attract operation of the MRTP Act and the Customs Tariff Act are different and the question of one superseding the other as a special law does not arise. They operate in different fields and are subject to different considerations. Hence, in the absence of any conflict or overlap between the two statutes, the question of the Customs Tariff Act provisions impliedly repealing the provisions of S. 33(1)(j) of the MRTP Act do not arise, was the submission.\n19.  While adopting the arguments of the other counsel, Shri Anil B. Divan, Senior Advocate on behalf of the respondent No. 1 referred to Ss. 2(e), 2(u), 13 and 14 of the Act. He submitted that S. 2(u)(i) which defines \"trade practice\" covers a chain of events/series of transactions that affect the price charged or methods of trading. Thus a part of \"trade practice\" may be outside India but the affectation of prices may have effect in India. Thus, he submitted, the import of goods and the sale in India which is the last link of the trade practice of predatory pricing read with S. 14 clearly gives jurisdiction in an appropriate case to the MRTP Commission. He contended that like the EEC as well as the USA, the law in India was the same, namely, that if the effect of a restrictive trade practice came to be felt in India because of a part of the trade practice being implemented in India, the MRTP Commission would have jurisdiction. This \"effects doctrine\" was, therefore, sought to be invoked with a view to clothe the MRTP with jurisdiction to pass orders even though a transaction which resulted in exporting goods to India at predatory price, which was in effect a restrictive trade practice, had been carried outside the territory of India. He submitted that where the effect of restrictive trade practice carried out outside the territory of EEC or USA is felt within the EEC or USA, the authorities enforcing competition law in the EEC or the USA exercise jurisdiction in regard to such conduct. He relied upon the decision of the European Court of Justice in the Wood Pulp case rendered on 27th September, 1988. There, while interpreting Art. 85 of the EEC Treaty which prohibited any agreement, decision and concerted practice which have the effect of prevention, restriction or distortion of competition within the common market, it was held that where producers established outside the EEC implement a pricing agreement within the common market the community's jurisdiction to apply its competition rules to such conduct is covered by the territoriality principle and is not in breach of the principle of international comity.\n20.  It was submitted by Mr. Divan that even while a regime for imposition of anti-dumping duties has been present in the EEC right from 1968, it was never suggested before the European Commission or the European Court of Justice that it's jurisdiction stood ousted or that the provisions of Art. 85 stood impliedly repealed by the antidumping code in respect of imports. Mr. Divan also submitted that in the USA, the Antitrust Enforcement Guidelines for International Operations issued by the U.S. Department of Justice enunciated that the State Department will exercise jurisdiction under the ShermAn Act over foreign conduct which had direct, substantial and reasonably foreseeable effects on U.S. domestic or import commerce.\n21.  While adopting the arguments of the other counsel, Shri Anil Divan on behalf of the respondents, drew the Court's attention to S. 4 of the MRTP Act which reads as follows:-\n\"Application of other laws not barred.-\n(1) Save as otherwise provided in sub-s. (2) or elsewhere in this Act, the provisions of this Act, shall be in addition to, and not in derogation of, any other law for the time being in force.\n(2) Notwithstanding anything contained in S. 3 or elsewhere in this Act, so much of the provisions of this Act, as relate to matters in respect of which specific provisions exist in the-\n(i) Reserve Bank of India Act, 1934 (2 of 1934), or the Banking Regulation Act, 1949 (10 of 1949), or\n(ii) State Bank of India Act, 1955 (23 of 1955), or the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959),or\n(iii) Insurance Act, 1938 (4 of 1938), shall not apply to a banking company, the State Bank of India or a subsidiary bank, as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), or an insurer, as the case may be.\"\n22.  He submitted that the provisions of the MRTP Act clearly postulated the continued applicability of other laws. There was no specific provision in the MRTP Act which made any other law inapplicable and there was no reason why by a process of interpretation the Indian MRTP Act should be emasculated and a beneficiant anti-monopoly jurisdiction exercised world-wide should be denied to the Indian MRTP Commission. What is the scheme of the Act, insofar as it is relevant to the present case, relating to allegation of restrictive trade practice and the jurisdiction and power of the Commission in regard thereto.\n23.  As the preamble indicates the MRTP Act, inter alia, prohibits restrictive trade practices. S. 2(o) defines restrictive trade practice while S. 2(u) defines trade practice.\n24. S. 10 gives the jurisdiction to the Commission to inquire into any restrictive trade practice. This jurisdiction can be exercised either upon receiving of a complaint or upon reference made by the Government or upon an application by the Director General or upon its own knowledge or information. Before a process is issued requiring the attendance upon any person the Commission may require, under Section 11, the Director General to make an investigation and to submit a report.\n25. Section 12-A contains the power of the Commission to grant temporary injunctions and the same reads as follows:-\n\"12-A. Power of the Commission to grant temporary injunctions.-\n(1) Where, during an inquiry before the Commission, it is proved, whether by the complainant, Director General, any trader or class of traders or any other person, by affidavit or otherwise, that any undertaking or any person is carrying on, or is about to carry on, any monopolistic or any restrictive or unfair, trade practice and such monopolistic or restrictive, or unfair, trade practice is likely to affect prejudicially the public interest or the interest of any trader, class of traders or traders generally or of any consumer or consumers generally, the Commission may, for the purposes of staying or preventing the undertaking or, as the case may be, such person from causing such prejudicial effect, by order, grant a temporary injunction restraining such undertaking or person from carrying on any monopolistic or restrictive, or unfair, trade practice until the conclusion of such inquiry or until further orders.\n(2) The provisions of Rules 2-A to 5 (both inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall, as far as may be, apply to a temporary injunction issued by the Commission under this section, as they apply to a temporary injunction issued by a civil court, and any reference in any such rule to a suit shall be construed as a reference to any inquiry before the Commission.\"\n26.  S. 14 relates to orders where a party concerned does not carry on business in India. S. 15 contains the restriction of application of orders in certain cases and reads as follows:-\n\"Restriction of application of orders in certain cases.- No order made under this Act with respect to any monopolistic or restrictive trade practice shall operate so as to restrict-\n(a) the right of any person to restrain any infringement of a patent granted in India, or\n(b) any person as to the condition which he attaches to a licence to do anything, the doing of which but for the licence would be an infringement of a patent granted in India, or\n(c) the right of any person to export goods from India, to the extent to which the monopolistic or restrictive trade practice relates exclusively to the production, supply, distribution, or control of goods for such export.\"\n27.  Chapter V contains provisions relating to restrictive trade practices and unfair trade practices. In the present case, it was the contention of the respondents that there were agreements between the Indian importers and the foreign parties which were registerable u/s. 33 of the Act. So far as the import of float glass is concerned, it was contended that the provisions of S. 33 (1) (j) were attracted. The relevant portions of S. 33 are as follows:-\n\"Registerable agreements relating to restrictive trade practices.-\n(1) Every agreement falling within one or more of the following categories shall be deemed, for the purposes of this Act, to be an agreement relating to restrictive trade practices and shall be subject to registration in accordance with the provisions of this Chapter, namely-\n(a) xxx xxxx\n(b) xxx xxxx\n(c) xxx xxxx\n(d) any agreement to purchase or sell goods or to tender for the sale or purchase of goods only at prices or on terms or conditions agreed upon between the sellers or purchasers;\n(e) xxx xxxx\n(f) xxx xxxx\n(g) xxx xxxx\n(h) xxx xxxx\n(i) xxx xxxx\n(j) any agreement to sell goods at such prices as would have the effect of eliminating competition or a competitor;\n(ja) any agreement restricting in any manner, the class or number of wholesalers, producers or suppliers from whom any goods may be bought;\n(jb) any agreement as to the bids which any of the parties thereto may offer at an auction for the sale of goods or any agreement whereby any party thereto agrees to abstain from bidding at any auction for the sale of goods;\n(k) xxx xxxx\n(1) xxx xxxx\n(2) The provisions of this section shall apply, so far as may be, in relation to agreements making provision for services as they apply in relation to agreements connected with the production, storage, supply, distribution or control of goods.\n(3) No agreement falling within this section shall be subject to registration in accordance with the provisions of this Chapter if it is expressly authorised by or under any law for the time being in force or has the approval of the Central Government or if the Government is a party to such agreement.\"\n28. The registration of agreement is provided for by Section 35. The relevant provisions of which are as follows:-\n\"Registration of agreement.-\n(1) The Central Government shall, by notification in the Official Gazette, specify a day (hereinafter referred to as the appointed day) on and from which every agreement falling within S. 33 shall become registrable under this Act:-\nProvided that different days may be appointed for different categories of agreements.\n(2) Within sixty days from the appointed day, in the case of an agreement existing on that day, and in the case of an agreement made after the appointed day within sixty days from the making thereof, there shall be furnished to the Director General in respect of every agreement falling within Section 33, the following particulars, namely-\n(a) the names of the persons who are parties to the agreement; and\n(b) the whole of the terms of the agreement.\n(3) If at any time after the agreement has been registered under this section, the agreement is varied (whether in respect of the parties or in respect of the terms thereof) or determined otherwise than by afflux of time, particulars of the variation or determination shall be furnished to the Director General within one month after the date of the variation or determination.\n(4) The particulars to be furnished under this section in respect of an agreement shall be furnished-\n(a) in so far as the agreement or any variation or determination of the agreement is made by an instrument in writing, by the production of the original or a true copy of that agreement; and\n(b) in so far as the agreement or any variation or determination of the agreement is not so made, by the production of a memorandum in writing signed by the person by whom the particulars are furnished.\n(5) The particulars to be furnished under this section shall be furnished by or on behalf of any person who is a party to the agreement or, as the case may be, was a party thereto immediately before its determination, and where the particulars are duly furnished by or on behalf of any such person, the provisions of this section shall be deemed to be complied with on the part of all such persons.\nExplanation I.- Where any agreement subject to registration under this section relates to the production, storage, supply, distribution or control of goods or the performance of any services in India and any party to the agreement carries on business in India, the agreement shall be deemed to be an agreement within the meaning of this section, notwithstanding that any other party to the agreement does not carry on business in India. Xxx xxx\"\n29. The investigation by the Commission and the orders which may be passed by it relating to restrictive trade practices is dealt with by Section 37. We will first consider whether the MRTP Act has extra territorial application. In other words, can the MRTP Commission pass orders against parties who are not in India and who do not carry on business here and where agreements are entered into outside India with no Indian being a party to it.\n30.  The preamble of the MRTP Act reads as follows:-\n\"An Act to provide that the operation of the economic system does not result in the concentration of economic power to the common detriment, for the control of monopolies, for the prohibition of monopolistic and restrictive trade practices and for matters connected therewith or incidental thereto.\"\nPresumably the economic system to which reference has been made in the preamble of the Act can only be with regard to the Indian economic system and not any other system in the world. The object of the Act was that there should be no exploitation of the people of India, as a result of concentration of economic power or by reason of monopolistic and restrictive trade practices being carried out in India.\n31.  S. 1(2) states that the Act \"extends to the whole of India except the State of Jammu and Kashmir\". S. 2(a) defines \"agreement\" while S. 2(e) defines \"goods\" which reads as follows:-\n\"\"goods\" means goods as defined in the Sale of Goods Act, 1930 (3 of 1930), and includes,-\n(i) products manufactured, processed or mined in India;\n(ii) shares and stocks including issue of shares before allotment;\n(iii) in relation to goods supplied, distributed or controlled in India, goods imported into India;\"\n32.  S. 14 which has relevance on the point in issue reads as follows:-\n\"Orders where party concerned does not carry on business in India.- Where any practice substantially falls within monopolistic, restrictive, or unfair, trade practice, relating to the production, storage, supply, distribution or control of goods of any description or the provision of any services and any party to such practice does not carry on business in India, an order may be made under this Act with respect to that part of the practice which is carried on in India.\"\n33.  Reading Ss. 1(2), 2(e) and 14 together can leave no manner of doubt that the Act has no extra territorial operation. S. 1(2) specifically provides that the Act extends to the whole of India except the State of Jammu and Kashmir, thereby defining the geographical boundary of the operation of the Act. S. 2(e)(iii) defines goods as including those goods which are supplied, distributed or controlled in India or the goods imported into India. The emphasis is on the words \"in India\" or \"into India\". Paraphrasing the said sub-section \"goods\" would mean \"those goods supplied in India or goods distributed in India or goods controlled in India or goods imported into India\". In the present case, we are concerned with float glass which was sought to be imported into India. For the purpose of the Act, it is only the goods imported into India which will fall within the definition of the word \"goods\" in S. 2(e). As such for the Commission to exercise any jurisdiction goods must be those which are imported into India. As long as the import has not taken place and the goods are merely intended for export to India the same will not fall within the definition of the word \"goods\" in S. 2(e).\n34.  Even if there was any manner of doubt the same would stand dispelled by the plain reading of Section 14. The said section visualizes where, inter alia, restrictive or unfair trade practice is carried on and any party to such practice does not carry on business in India then an order can be passed under the Act only with respect to that part of the practice which is carried on in India. To put it differently, it is only that part of monopolistic, restrictive, or unfair, trade practice, relating to production, supply etc. of goods in India in respect of which orders can be passed. To put matters beyond any doubt Explanation I to Section 35, which refers to agreements which are subject to registration under the said section, provides that when any party to the agreement for the production, supply, distribution etc. of goods or performance of any services in India carries on business in India then that agreement shall be deemed to be an agreement within the meaning of the section, notwithstanding that any other party to the agreement does not carry on business in India. The meaning of this clearly is that it is only that agreement which would require registration in India if at least one party to the agreement carries on business in India. It may happen that there may be two or more parties which enter into an agreement outside India, relating to supply or distribution of goods to India, the formation of such an agreement would not ipso facto require any registration even if it relates to restrictive trade practice but if one of the parties to an agreement carries on business in India then that agreement shall be deemed to be an agreement within the meaning of the section which would require registration.\n35.  The next question which would arise for consideration is whether the principle of \"effect doctrine\" has any application in India. Where, in other words, actions take place and agreements are entered into outside India but the resultant adverse effect is experienced in India then can the MRTP Commission have any jurisdiction. The preamble of the Act indicates that the MRTP Act was enacted, inter alia, for prohibiting any restrictive trade practice. Restrictive trade practice has been defined in S. 2(o) which reads as follows:-\n\" 'restrictive trade practice' means a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner and in particular,-\n(i) which tends to obstruct the flow of capital or resources into the stream of production, or\n(ii) which tends to bring about manipulation of prices, or conditions of delivery or to effect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions;\"\n36.  The expression \"trade practice\" has been defined under S. 2(u) which reads as under:\n\" 'trade practice' means any practice relating to the carrying on of any trade, and includes-\n(i) anything done by any person which controls or affects the price charged by, or the method of trading of, any trader or any class of traders,\n(ii) a single or isolated action of any person in relation to any trade;\"\nS. 33 of the Act deals with certain types of agreements stipulated therein to be an agreement relating to restrictive trade practice and such agreement requires to be registered. S. 37(1) gives the Commission power to inquire whether an agreement is governed by S. 33 and has been registered u/s. 35 or not.\n37. S. 37 reads as under :-\n\"37. Investigation into restrictive trade practices by\nCommission.- (1) The Commission may inquire into any restrictive trade practice, whether the agreement, if any, relating thereto has been registered u/s. 35 or not, which may come before it for inquiry and, if, after such inquiry it is of opinion that the practice is prejudicial to the public interest, the Commission may, by order, direct that-\n(a) the practice shall be discontinued or shall not be repeated;\n(b) the agreement relating thereto shall be void in respect of such restrictive trade practice or shall stand modified in respect thereof in such manner as may be specified in the order.\n(2) The Commission may, instead of making any order under this section, permit the party to any restrictive trade practice, if he so applies to take such steps within the time specified in this behalf by Commission as may be necessary to ensure that the trade practice is no longer prejudicial to the public interest, and in any such case, if the Commission is satisfied that the necessary steps have been taken within the time specified, it may decide not to make any order under this section in respect of that trade practice.\n(3) No order shall be made under sub-s. (1) in respect of-\n(a) any agreement between buyers relating to goods which are bought by the buyers for consumption and not for ultimate resale whether in the same or different form, type or specie or as constituent of some other goods;\n(b) a trade practice which is expressly authorised by any law for the time being in force.\n(4) Notwithstanding anything contained in this Act, if the Commission during the course of an inquiry under sub-section (1), finds that the owner of any undertaking is indulging in monopolistic trade practices, it may, after passing such orders under sub-s. (1) or sub-s. (2) with respect to the restrictive trade practices as it may consider necessary, submit the case along with its findings thereon to the Central Government for such action as that Government may take under Section 31.\"\n38. S. 37 thus gives power to the Commission to inquire into any restrictive trade practice and if it is of the opinion that the practice is prejudicial to the public interest, the Commission may, by order, direct that the practice shall be discontinued or shall not be repeated. It appears to us that what is, inter alia, prohibited by the Act will be carrying on restrictive trade practice as defined in Ss. 2(o) and 2(u) of the Act. The restrictive trade practice may or may not be directly connected with or be the result of any agreement between the parties in India. Any act which falls under the category of restrictive trade practice can be investigated into and orders passed under S. 37(1). Ss. 2(o) and 2(u) do not specifically indicate that the practice should be carried on only by a person or persons in India. If the trade practice is such that it becomes a restricted trade practice in India as contemplated by S. 2(o), then action can be taken under S. 37(1) in respect of such a trade practice.\n39.  S. 38 provides that every restrictive trade practice shall be deemed to be prejudicial to the public interest unless the Commission is satisfied of any one or more of the circumstances mentioned in Clauses (a) to (k) of S. 38 exists and it is further satisfied that the restriction is not unreasonable having regard to the balance between those circumstances and any detriment to the public or to persons not parties to the agreement.\n40.  S. 2(u) does state that 'trade practice' means any practice relating to the carrying on of any trade but then it adds that such a trade practice would include anything done by any person which controls or affects the price charged by, or the method of trading of, any trader or any class of traders. the Act and the aforesaid section, in particular, is, therefore, concerned specifically with the incidence of the restrictive trade practice within India which in S. 2(o)(i) refers to the obstruction to the flow of capital or resources into the stream of production, while S. 2(o)(ii) talks of manipulation of prices or conditions of delivery or to effect the flow of supplies in the market but which must be such as to impose on the consumers unjustified costs or restrictions. To put it differently, mere manipulation of prices or conditions of delivery would not be a restrictive trade practice u/s. 2 (o)(ii) unless it is done in such a manner so as to impose on the consumers unjustified costs or restrictions. Lowering of prices cannot be regarded as imposing on the consumers unjustified costs or restrictions.\n41.  Under S. 33(1)(j) of the Act, any agreement to sell goods at such prices as would have the effect of eliminating competition or a competitor is regarded as an agreement relating to restrictive trade practice and shall be subject to registration. the Act nowhere states that this agreement should be only in India or between Indian parties. In effect, this Section recognizes the 'effects doctrine', namely, where an agreement results in sale of goods at such prices which would have the effect of eliminating competition or a competitor. In the very nature of things, the sale of goods keeping in mind the definition of the word \"goods\" in S. 2(e) must be of goods imported into India, in the case like the present. But if we replace the word \"goods\" in S. 33(1)(j) with the definition of \"goods\" in S. 2(e)(iii), then the S. 33(1)(j) would read as follows:-\n\"Any agreement to sell goods imported into India at such prices as would have the effect of eliminating competition or a competitor.\"\n42.  Thus, the agreement requiring registration must be in respect of goods after their import into India. In other words, where the goods are already in India, then any agreement which has the effect of eliminating competition or a competitor of the sale of those goods existing in India would be a restrictive trade practice and it would be immaterial as to where the agreement takes place in relation to the sale of those goods. The \"effects doctrine\" would be applicable only in relation to those goods which are within the territory of India before its sale referred to in S. 33(1)(j) of the Act. An agreement, which results in sale outside India and the export of the goods to India, even if that sale is at predatory prices, would not fall within the ambit of S. 33(1)(j) of the Act. It is a subsequent agreement of sale of the imported goods, if it has the effect of eliminating competition or a competitor, which would be registerable u/s. 33(1)(j) of The Act.\n43.  Even if an agreement is executed outside India or the parties to the agreement are not in India and agreement may not be registerable under Section 33, being an outside India agreement, nevertheless, if any, restrictive trade practice, as a consequence of any such an outside agreement, is carried out in India then the Commission shall have jurisdiction under S. 37(1) in respect of that restrictive trade practice if it comes to the conclusion that the same is prejudicial to the public interest.\n44.  It is possible that persons outside India indulge in such trade practices, not necessarily restricted to the effectuation of prices within India, which have the effect of preventing, distorting or restricting competition in India or gives rise to a restrictive trade practice within India then in respect of that restrictive trade practice, MRTP Commission will have jurisdiction. The counsel for the respondents is right in submitting that if the effect of restrictive trade practices came to be felt in India because of a part of the trade practice being implemented here the MRTP Commission would have jurisdiction. This \"effects doctrine\" will clothe the MRTP Commission with jurisdiction to pass an appropriate order even though a transaction, for example, which results in exporting goods to India at predatory price, which was in effect a restrictive trade practice, had been carried out outside the territory of India if the effect of that had resulted in a restrictive trade practice in India. If power is not given to the MRTP Commission to have jurisdiction with regard to that part of trade practice in India which is restrictive in nature then it will mean that persons outside India can continue to indulge in such practices whose adverse effect is felt in India with impugnity. A competition law like the MRTP Act is a mechanism to counter cross border economic terrorism. Therefore, even though such an agreement may enter into outside the territorial jurisdiction of the Commission but if it results in a restrictive trade practice in India then the Commission will have jurisdiction under S. 37 to pass appropriate orders in respect of such restrictive trade practice. We will now consider whether the Anti-dumping provisions will oust the jurisdiction of the MRTP Commission, as has been contended by the appellants.\n45.  The jurisdiction of the MRTP Commission, in our opinion, is not ousted by the Anti-dumping provisions in the Customs Act. The two Acts operate in different fields and have different purposes. The Import Control Act and the Customs Tariff Act are concerned with import of goods into India and the duty which could be imposed on the imported items. Import may be allowed on the basis of an import license or, depending upon the policy, import may be allowed under OGL - Open General License where no specific license for import is required. Whether to allow import or not and the terms on which an item may be imported is a matter of policy and regulated by law.\n46.  There is in this case no challenge to the import policy allowing import of float glass and even if such a challenge was to be there it would hardly succeed. The grievance of the respondents is that import is being made at predatory prices. The challenge is to the Actual import. But allowing such a challenge will amount to giving the MRTP Commission jurisdiction to adjudicate upon the legal validity of the provisions relating to import, which jurisdiction the Commission does not have. It is not a court with power of judicial review over legislative action. Therefore, it would have no jurisdiction to decide whether the Action of the Government in permitting import of float glass even at predatory prices is valid or not. The Commission cannot prohibit import, it's jurisdiction commences after import is completed and any restrictive trade practice takes place.\n47.  Customs duty on import of any goods is levied under the provisions of the Customs Tariff Act. The rate at which the import duty is to be levied is a matter of policy. The rate of duty is determined by the schedule to the Customs Tariff Act and is subject to such exemption as may be granted under that Act. Thus the rate of import duty which is imposed is a legislative act and is thus not amenable to the jurisdiction of the MRTP Commission. A party cannot contend before the MRTP Commission that the rate of duty is too high or too low. In fact, such a challenge is hardly likely to succeed in a Court of law and the question of the MRTP Commission having such a jurisdiction does not arise.\n48.   Apart from the rate of duty the value of the goods imported has to be determined for the purpose of levy of duty. The customs authorities are required to determine whether the value of the goods imported has been correctly declared. In case of wrong valuation, the customs authorities can determine the correct value and levy duty thereon. Normally the goods are valued at the price at which they are actually purchased. Then that will be the value at which the duty will be imposed. It is not the case of the respondents that the appellants are guilty of under-valuing the goods imported. It is the low price which has been charged by the Indonesian exporter which is really the object of attack.\n49.  The levy or non-levy of anti-dumping or other duty being a legislative act pursuant to the exercise of powers under the Customs Tariff Act can also not be a subject-matter of judicial review by the MRTP Commission. The two Acts substantially operate in different fields and the following table brings out some of the distinctions between the MRTP Act and the Anti-dumping provisions:\nCOMPETITION LAW ACTIONS\nAnti-dumping ActIons\n1. Competition law is concerned with the regulation of competition in a particular market within the territory of a country. Thus, it would take within its sweep a whole host of anti-competitive practices including (i) monopolistic trade practices, as defined in S. 2(i) of the MRTP Act, (ii) restrictive trade practices, as defined in S. 2(o), and (iii) unfair trade practices as defined in Section 36A.\n50.  A Complaint under the MRTP Act can be filed by a Trade Association or any Consumer or a Registered Consumers Association, or a reference can be made by the Central Government or the State Government or even by the Director General upon its own knowledge or information. [S. 10(1)(A) of the MRTP Act.]\n51.  Competition law procedures allow and require consideration of interest groups such as manufacturers, importers, exporters, consumers and the general public. Commercial actors can have their interests assessed through the determination of the market, causation or injury. Interes consumers are taken into account when assessing the impact of a business practice on competition.\n52.  In predatory pricing enquiries, the complainant has to establish that the predator acted with intent to eliminate competition and competitors. Actual injury is not required. In most countries, competition cases are dealt with by a court of law, where parties are entitled to full discovery rights and due process. An anti-dumping law is concerned with addressing just one type of unfair, international trade practice that causes injury to domestic industry, i.e., \"dumping\" of goods by an exporting country.\n53.  An Anti Dumping Petition can be filed by the Domestic Industry as defined under the Anti Dumping Rules or suo motu by the Designated Authority. [See Rules 2 (b), 5(1) and 5(4) of the Anti Dumping Rules.]\n54.  No interest group other than domestic industry has full leg standing in anti-dumping cases. The predominant interest group is of domestic producers. Industrial users and cons do not have legal standing maintain a complaint. In anti-dumping complaints intent is irrelevant but actual injury has to be shown. Further, a causal link has to be established between the dump and the injury suffered. Anti-dumping enquiries are always conducted by government agencies through administrative procedures and law.\n55.  A perusal of the above chart indicates that the two statutes and regimes operate in different and distinct spheres and there is no conflict between the two regimes/statutes. Hence, the question of implied repeal of the provisions of S. 33(1)(j) of the MRTP Act, 1969 on account of the provisions of Section 9A of the Customs Tariff Act, 1975 does not arise.\n56.  It is thus seen that the provisions relating to anti-dumping contained in the Customs Tariff Act do not in any way affect the power or jurisdiction of the MRTP Commission. The Import Control Act and the Customs Tariff Act on the one hand and the MRTP Act on the other operate in different independent fields and the authority under one has no jurisdiction over the other. In other words, their paths do not cross each other. While the provisions of Anti-dumping Act are concerned with the levy of anti-dumping duty, the MRTP Act in the present case would be concerned with the agreements between the parties which relate to the restrictive trade practices. Therefore, it would be incorrect to say that the incorporation of the anti-dumping provisions ousts the jurisdiction of the MRTP Commission to inquire and pass orders, inter alia, with regard restrictive trade practice in India.\n57.  It was submitted that import by the Indian party from Indonesia at predatory prices required the agreement for import to be registered as per S. 33 (1)(j) of the Act. On the facts of this case, we are not inclined to agree that such a case is made out. As far as S. 33(1)(j) is concerned, there must be an agreement between the foreign seller and the Indian importer to sell goods at such prices as would have the effect of eliminating competition of a competitor, i.e., here the Indian industry. What seems to have happened here is that the monopolistic Indian undertakings are now having to face competition. The quantum of import in the present case is a small fraction of the total float glass which is manufactured and sold in India. The reduction in prices of the Indian importer is to the benefit of the Indian customer. It is only if there is an agreement between the Indian importer and the foreign seller which has such an effect that the production in India of float glass by efficient Indian industry would have to stop and such stoppage is considered prejudicial to the public interest, can an order under Section 12-A or S. 37 be passed. It is the case of the petitioners that the Indian manufacturers have formed a cartel of their own and are charging high prices because of lack of competition. It is alleged that the Indian manufacturers are making much profits and despite import of float glass having taken place for the last 5-10 years the Indian industry has not suffered. On the other hand, the volume of sales has increased and the profit of the Indian producers not decreased. Under these circumstances, it was contended, the passing of the injunction was wholly uncalled for.\n58.  Import of material at prices lower than prevailing in India cannot per se be regarded as being prejudicial to the public interest. If the normal or export price of any goods outside India is lower than the selling price of an indigenously produced item then to say that the import is prejudicial to the public interest would not be correct. The availability of goods outside India at prices lower than those which are indigenously produced would encourage competition amongst the Indian industry and would not per se result in eliminating the competitor, as was sought to be submitted by the respondents.\n59.  It is while dealing with a complaint relating to restrictive trade practice that the MRTP Commission has the jurisdiction to grant temporary injunction under Section 12-A(1). It is only on the basis of proof, and not mere allegation, and on the basis of an inquiry before the Commission that any trader or class of traders is carrying on a restrictive trade practice which is likely to affect prejudicially the public interest or the interest of any trader, class of traders or traders generally or of consumers that the Commission would have jurisdiction to grant a temporary injunction restraining any undertaking or person from carrying on any restrictive trade practice.\n60.  While the Commission has power to grant ex-parte temporary injunction, but in view of Explanation II to Section 12-A, whereby the provisions of Rule 2-A of Order XXXIX of the Code of Civil Procedure, 1908 are made applicable, for the grant of temporary injunction the Commission normally ought to give notice and hear the respondents before passing an order of injunction. What is, however, important is that the conditions stipulated in Section 12-A(1) have to be satisfied before an order for injunction can be passed. In other words, it has to be proved that the respondents before the Commission is carrying on or about to carry on a restrictive trade practice which will be prejudicial to the public interest or to the interest of traders etc before an order for injunction can be issued. Merely because an industry will finds itself unable to be able to compete with imports from outside can be of no ground for exercising jurisdiction under Section 12-A(1). It is only if the trade practice which is being impugned is such that would fall within the four corners of S. 2(o), which defines restrictive trade practice, can the Commission grant an injunction. The facts on record do not indicate any justification for any interim order being passed in the present case. Furthermore, the impugned order passed against the foreign manufacturers of float glass, who do not carry on business in India is clearly contrary to the provisions of S. 14 of the Act and, as such, cannot be sustained.\n61.  In our opinion, the MRTP Commission has no extra territorial jurisdiction. the Action of an exporter to India when performed outside India would not be amenable to jurisdiction of the MRTP Commission. The MRTP Commission cannot pass an order determining the export price of an exporter to India or prohibiting him to export to India at a low or predatory price. The matter may be examined from another angle. In this case, there is a sale of float glass by the exporter in Indonesia. If the float glass was ready and available, then being ascertained goods the sale would be regarded as having taken place where the goods existed at the time of sale, i.e., in Indonesia. If the glass had to be manufactured and not readily identifiable, then the sale would take place outside India when the goods are appropriated to the contract by the foreign exporter. Here the appropriation would take place in Indonesia when the glass is earmarked and exported to India. In either case the MRTP Commission would have no jurisdiction to stop that sale. If the said sale cannot be stopped and the import policy permits the Indian importer to import on payment of duty then we fail to see what jurisdiction the MRTP Commission can possibly have till a restrictive trade practice takes place after float glass is imported into India.\n62.  It is not as if the Indian industry has no remedy against goods being exported to India at predatory prices. It is because of the need for such a provision that the Customs Act was amended and anti-dumping provisions were incorporated. Recourse to this was taken by the respondents but then that remedy was not pursued. At this stage, it is relevant to refer to the provisions of S. 11 of the Customs Act. The said Section gives the Central Government a power to prohibit importation or exportation of goods, if it is satisfied that it is necessary to do so for any of the purposes specified in subsection (2). Under sub-section (2), such prohibition can be for the purpose of establishment of any industry (sub-clause (i)); preventing serious injury to domestic production of goods of any description (sub-clause (j)); the compliance of imported goods with any laws which are applicable to similar goods produced or manufactured in India (sub-clause (s)); the prevention of the contravention of any law for the time being in force (sub-clause (u)) and any other purpose conducive to the interest of general public (sub-clause (v)) Inasmuch as, the import into the country is, inter alia, governed by the Customs Act and the power to prohibit or not to prohibit the importation of any goods is with the Government, then unless and until, a law prohibiting import is infringed, it is difficult to perceive as to how the MRTP Commission can prevent the importation of the goods. In this connection, it is also useful to refer to S. 33(3) of the Act which reads as under:-\n\"No agreement falling within this section shall be subject to registration in accordance with the provisions of this Chapter if it is expressly authorized by or under any law for the time being in force or has the approval of the Central Government or if the Government is a party to such agreement.\"\n63.  Inasmuch as the importation of float glass is permitted by law, under the provisions of the Customs Act and the Import Control Act, then an agreement in relation to such an import may not be liable to be registered under the provisions of the Act. It is only in respect of float glass, which is imported and thereafter if in respect to that a restrictive trade practice is indulged can the MRTP Commission have jurisdiction qua post import Indian end of the transaction.\n64.  Conclusions:- From the aforesaid discussion and reasons, we arrive at the following conclusions:-\n1. Anti-dumping provisions do not per se oust the jurisdiction of the MRTP Commission.\n2. The MRTP Commission can, inter alia, take action whenever a Restrictive Trade Practice is carried out in India in respect of imported goods or otherwise.\n3. It is only in respect of the Indian leg of the restrictive trade practice, can an order u/s. 12 A and/or S. 37 be passed.\n4. Under S. 33 of the Act what can be registered is only an agreement in regard to which any party to an agreement carries on business in India [S. 35 Explanation I]. But this does not mean that if an agreement is entered into outside India and which results in a Restrictive Trade Practice in India, the MRTP Commission has no jurisdiction. The \"effects doctrine\" will apply and S. 2(o) read with S. 2(u) and S. 37 gives jurisdiction to the MRTP Commission to pass appropriate orders qua the Restrictive Trade Practice in India. The MRTP Commission, in such a case, may not be able to stop import but there can be order imposing post import restrictions such as, for example, not to sell imported goods in India in such a manner which will be regarded as a restrictive trade practice under Section 37.\n5. In Explanation I to S. 35 the use of the words \"shall be deemed to be an agreement within the meaning of this section.\" and the time-frame for registration clearly indicates that S. 33 and S. 35 apply only to Indian agreements or agreements in India and, therefore, it became necessary to incorporate Explanation I so as to enlarge the ambit and give extra territorial jurisdiction in relation to those agreements which relate to performance of services in India and any party to that agreement carries on business in India.\n6. On the facts of this case, the impugned order passed by the MRTP Commission against the Indonesian exporters cannot be sustained and is set aside Appeals are disposed of in the aforesaid terms. Parties to bear their own costs.\nCivil Appeal No. 3562 of 2000:-\n65.  Interim order of the MRTP Commission restraining the appellant from dispatching, directly or indirectly, soda ash to India is the subject matter of challenge in this appeal.\n66.  The complainant M/s Alkali Manufacturers Association of India (AMAI for short) had filed a complaint before the MRTP Commission u/s. 33(1)(d), Section 36-A and S. 40 read with S. 2(i) & (o) of the MRTP Act. The Complainant Association had 34 members carrying on the business of Soda Ash in India. In the complaint, it was stated that the Soda Ash was being manufactured by six companies in India and was being sold to the Indian consumers at a net price of Rs. 8190 to Rs. 8320 PMT net of excise. It was alleged that the appellant M/s American Natural Soda Ash Corporation (hereinafter referred to as ANSAC) consisted of six producers of natural Soda Ash who have joined together to form an Export Cartel by virtue of a Membership Agreement amongst them entered into in America on 8 December, 1983. By this agreement, the six producers had agreed that all export sales by them or by any of their subsidiaries will be made through ANSAC which was set up as a Corporation in accordance with the provisions of the United States Export Trade Act, 1918.\n67. It was further alleged in the complaint that ANSAC in an attempt to invade the Indian market and undercut the Indian producers, it sold American Soda Ash to Indian consumers at an unrealistically low price of US $ 132 PMT-CIF. With a view to circumvent the prohibition in Indian law against monopolistic, restrictive and unfair trade practices, a strategy had been adopted by ANSAC by selling American Soda Ash to Indian consumers through the front of one M/s G. Premjee of Singapore in whose favour the Indian producers had opened letters of credit. According to this complaint, there was a bulk sale of soda ash by ANSAC to the Indian Consumers through the conduit of M/s G. Premjee of Singapore. On the basis of these averments, namely, that ANSAC was a Cartel of American Soda Ash Producers and was likely to affect maintenance of prices at reasonable and realistic levels in India and with a view to adversely affect the local production and availability of Soda Ash, the MRTP Commission should enquire against this restrictive and unfair trade practice and grant an ex-parte injunction restraining ANSAC from despatching the goods. On the basis of these allegations, the MRTP Commission on 9 September, 1996 passed an ad-interim injunction, which was subsequently confirmed by it, directing ANSAC not to indulge in the practice of cartelisation by exporting soda ash to India in the form of cartel directly or indirectly. The order further stated that it was without prejudice to the final outcome of the said enquiry as well as to the rights of the importers or exporters in the individual capacity to export soda ash to India. This order has been affirmed by the Commission by it's order of 9 March, 2000.\n68.  While denying that ANSAC was a cartel or that export of Soda Ash to India was violative of any of the provisions of the MRTP Act, ANSAC has submitted in this appeal that the MRTP had no extraterritorial jurisdiction and furthermore in view of the provisions of the anti-dumping law, the MRTP Commission had no jurisdiction to decide the case.\n69.  This appeal was heard along with Civil Appeal No. 2330 of 2000 - M/s Haridas Exports 2002 Indlaw SC 1739 v. All India Float Glass Manufacturers Association. In Haridas Exports 2002 Indlaw SC 1739 case common contentions raised in this appeal regarding jurisdiction of the MRTP Commission and the scope and ambit of the MRTP Act vis-a-vis Anti Dumping Duty have been dealt with. We now propose to deal with the allegation of export by the appellant, which is alleged to be a cartel, and whether there was justification for granting the injunction.\n70.  Some more undisputed facts, which are relevant may first be mentioned. ANSAC was set up under the Webb Powerence Act of U.S.A. as an export agency, the six producers of soda ash in U.S.A. being it's members. Like a canalising agency exports of natural soda ash by these producers cannot be made by the members individually. Exports of soda ash from U.S.A. are made by the canalising agency, namely, the appellant.\n71.  While the Indian companies manufacture synthetic soda ash, the American companies export natural soda ash which is cheaper to produce than the Indian soda ash. Since its inception in 1983, the appellant had sold for export to India only one consignment equal to 1.44 per cent of the annual production of India, and it is in respect of this consignment that the MRTP Commission issued injunction restraining it's import. Till today, therefore, no soda ash has been exported by the appellant to India.\n72.  It was submitted by the respondent that the agreement of 1983 formed a cartel and was registrable u/s. 33(1)(d) of the MRTP Act. In so far as S. 33 (1) (d) is concerned, the scheme appears to be that every agreement falling u/s. 33 (1)(a) to (l) is presumed to be one relating to restrictive trade practice and is subject to registration. An agreement falling u/s. 33 need not necessarily be one in writing inasmuch as S. 2(a) defines an agreement as including any arrangement or understanding as well. Therefore, if apart from written agreement there is an arrangement or understanding amongst the sellers or the purchasers with regard to the purchase or sale of goods to be only at the prices or on terms or conditions agreed upon amongst them then such an agreement would require registration. S. 33(1)(d) regards an agreement to be one relating to restrictive trade practice if such agreement relates to purchase or sale of goods or to tender for sale or purchase of goods only at prices or on terms or conditions agreed upon amongst the sellers or amongst the purchasers. Such an agreement amongst the sellers or amongst the purchasers relating to purchase or sale or to the prices in respect thereof may be regarded as the formation of a cartel.\n73.  S. 35 specifies the period within which every agreement falling u/s. 33 becomes registrable. As we have already noticed, Explanation I would make such an agreement registrable only when at least one party to the agreement carries on business in India.\n74.  On an agreement being filed u/s. 35 particulars are furnished to the Director General who is required to maintain a register under Section 36. S. 37 then gives the jurisdiction to the Commission to make an inquiry, whether an agreement is registered or not, in order to find out if a restrictive trade practice is prejudicial to the public interest.\n75.  The effect of this is that by not registering an agreement falling u/ss. 33 and 35 the Commission is not divested of its jurisdiction of exercising its powers under Section 37. The opening words of S. 37 make it quite clear that an inquiry into any restrictive trade practice can be made by the Commission even in relation to an agreement which is not registered. Therefore, once an agreement comes to the notice of the Commission which is to be regarded as containing a restrictive trade practice then the Commission is under an obligation to find out and determine whether in its opinion the practice is prejudicial to the public interest. It is only if the Commission is satisfied that there is prejudice to the public interest then the Commission has the jurisdiction to direct either that the practice shall be discontinued or shall not be repeated or to hold that any such agreement which is prejudicial to the public interest shall be void in respect of such restrictive trade practice or that the said agreement shall be modified in such a manner as may be specified. If remedial steps have been taken then, as contemplated by S. 37 (2), no order need be passed by the Commission. One further restriction on the power of the Commission to pass order is also contained in S. 37 (3) (b) which provides that if a trade practice is expressly authorised to be carried on by any law for the time being in force then no order shall be passed under Section 37. This Explanation is in addition to the provisions of S. 38 which deals with cases relating to presumption as to the agreement of the types mentioned there in being in the public interest.\n76.  The impact of reading of the provisions together is that what is sought to be targeted in relation to restrictive trade practice is not the nature or the factum of the restriction but such restriction should not be prejudicial to the public interest. For example, an agreement may be entered into amongst the purchasers in order to ensure constant supply of goods at a reasonable rate. Such an agreement even though it may fall u/s. 33 (1) (d) would not be regarded as being prejudicial to the public interest. It is in this context that when we examine the provisions of Section 12-A, we find that the power of the Commission to grant temporary injunction arises only after it is satisfied that a restrictive trade practice or unfair trade practice is being carried on which is likely to affect prejudicially the public interest or the interest of trader or class of traders etc. It is only with a view to prevent the causing of a prejudicial effect that an interim order can be passed by the Commission under Section 12-A.\n77.  As we have already seen the Act does not have any extra territorial operation. An agreement which is referred to u/s. 33 (1) (d) must, therefore, be of a kind in which a person in India is a party. This is clear from the bare reading of Explanation I to Section 35. This means that for an agreement to fall within the ambit of S. 33(1)(d) and in respect of which the Commission can exercise its powers under S. 37 a person in India must be regarded as one of the sellers who is a person to such an agreement. This is clear from the use of the words \"any party to the agreement carries on business in India\" occurring in Explanation I to Section 35. A Careful reading of S. 33(1)(d) indicates that it refers to two classes of agreements.\n78.  One class is an agreement to purchase goods or to tender for the purchase of goods only at prices or on terms or conditions agreed upon between the purchasers. The other class is an agreement to sell goods or to tender for the sale of goods only at prices or on terms or conditions agreed upon between the sellers. In other words, S. 33(1)(d) refers to the agreements which have the effect of forming either a buyers cartel or a sellers cartel. This sub-section does not refer to or deal with agreements of sale and purchase between sellers and purchasers.\n79.  In the case of import of soda ash, the contention is that the appellant is a cartel in America which was proposing to sell soda ash to India at very low prices with a view to eliminate competition and to adversely affect the Indian industry. Any agreement of sale by the appellant to an Indian purchaser would not attract the provisions of S. 33(1)(d), which refers only to cartelising agreements and not to agreements of sale and purchase. But the MRTP Commission will have jurisdiction under S. 37 to pass orders if such a sale was to amount to being a restrictive trade practice. For the Commission to have jurisdiction to pass such an order, whether interim or final, it must come to the conclusion that it is in public interest to do so. It is to be borne in mind that public interest does not necessarily mean interest only of the industry. Unless and until it can be demonstrated that an efficient Indian industry would be forced to shut down or suffer serious loss resulting in closure or unemployment, the Commission ought not to pass an injunction restraining an Indian party from importing goods from a cartel at predatory prices. Importing goods at a price lower than what is available in India is not per se illegal. We have provisions under the Customs Act which enables the Government to impose antidumping duties with a view to protect the Indian industry. Nevertheless, the era of protectionism is now coming to an end. The Indian industry has to gear up so as to meet the challenges from abroad. If the cartel is selling goods to India and still making profit then it will not be in the interest of the general body of the consumers in India to prevent the import of such goods. The remedy of the Indian industry, in such an event, is to take recourse to the provisions under the Customs Act in relation to the levy of anti-dumping duties.\n80.  A cartel is formed, inter alia, with a view that members of the cartel do not wage a price war and they sell at an agreed or uniform price. There may perhaps also be a cartel where members divide the territories to which each of them can export. There is little doubt that the object of an export cartel is to capture a market even if at first, it may result in a loss to the exporter.\n81.  The competition law in the form of MRTP as it stands today does  not contain any provision, which can give it jurisdiction to interfere merely with cartel formation. Formation of cartel which takes place outside India is outside the territorial jurisdiction of the MRTP. The Indian importer obtaining goods at a low price does not contravene any law. He has obtained a good bargain.\n82.  We need not go into the question whether anti-dumping provisions in the Customs Act can be an effective remedy against such cartelisation. But if the cartel carries out Restrictive Trade Practice in India or it's actions have the effect of a Restrictive Trade Practice being carried out in India, then the MRTP Commission will get jurisdiction to act under S. 37(1) of the MRTP Act.\n83.  We make it clear that we are expressing no opinion as to whether the appellant is a cartel or on the question of predatory prices for the reason that we are satisfied that here no case had been made out by the respondents for the grant of injunction against the appellant. The injunction issued against the appellant was not only against the provisions of S. 14 of the Act but even on facts as alleged no case had really been made out for any order under Section 12-A or S. 37 of the Act more so when no import of soda ash into India from the appellant had, in fact, taken place. On the other hand, prima facie the allegation of the appellant that it is the respondents which have formed a cartel and do not welcome any competition does merit consideration, perhaps in another case. For the aforesaid reasons this appeals is allowed with costs.\nAppeals allowed.\n"}
+{"id": "eNo41eoPni", "title": "", "text": "Belsund Sugar Company Limited v State of Bihar and Others\nSupreme Court of India\n\n10 August 1999\nC.A. No. 398 of 1977\nThe Judgment was delivered by: S. B. Majmudar, J.\n1. Leave granted in the Special Leave Petitions.\n2. These appeals and writ petitions mainly raise the question regarding the legality of the levy of market fee under the provisions of Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as the Market Act for short). The grievance made by the appellants/writ petitioners pertained to the following commodities with which the respective proceedings are concerned. 1. Sugarcane, Sugar and molasses (briefly referred to as Sugar matters) matters) Wheat products Atta, Maida, Suzi, Bran etc.; 3. Vegetable Oil; 4. Rice milling; 5. Milk and milk products; 6. Tea. It will, therefore, be appropriate to deal seriatim the grievances centering round the levy of market fee on transactions concerning the aforesaid commodities.\n3. GRIEVANCES IN CONNECTION WITH MARKET FEE CONCERNING SUGAR MATTERS\nSo far as this group of matters is concerned, first two Civil Appeal Nos. 398 & 399 of 1977 arise out of certificates of fitness granted by the High Court of Judicature at Patna u/arts. 132(1) and 133(1) of the Constitution of India. The said certificates pertain to a common judgment of the High Court rendered in two writ petitions of two sugar mills located in the State of Bihar. By the common judgment dated 20th April, 1976 the High Court dismissed both the writ petitions. The said judgment of the High Court is reported in The Belsund Sugar Co. Ltd., Riga and another vs. The State of Bihar and others, (AIR 1977 Patna 136 1976 Indlaw PAT 98). By the impugned common judgment, the imposition of market fee under the Market Act on the transactions of purchase of sugarcane by the sugar mills concerned and also on their transactions covering sale of sugar and molasses manufactured by utilising the purchased sugarcane was upheld by the High Court. In view of the fact that the certificates of fitness were granted by the High Court as aforesaid this group of matters was directed to be placed before a Constitution Bench of this Court as per Art. 145 of the Constitution of India. Though initially they were directed to be placed before a Bench of seven Judges, subsequently by a latter order dated 9th December, 1998, these appeals were directed to be placed before a five Judge Bench and that is how these appeals and other cognate matters were placed before this Bench for final hearing. Though the certificates of fitness granted by the High Court were on the basis that the cases involved a substantial question of law as to the interpretation of Art. 254(1) of the Constitution of India, at the time when these appeals and the cognate matters reached final hearing before us, learned senior counsel Shri Shanti Bhushan and Shri Gupta appearing for the appellants, raised mainly two contentions for our consideration:\n4. Whether the Market Act can apply to the transactions of purchase of sugarcane and sale of sugar and molasses by the appellant sugar mills in view of the fact that regulation of these transactions is already effected by Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 (for short Sugarcane Act) as well as and Sugar both issued u/s. 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the Essential Commodities Act) and also under the provisions of Bihar Molasses (Control) Act, 1947. In the alternative, whether imposition of market fee under the Market Act by the respective market committees is justified in the absence of any service rendered to the appellant sugar mills under the provisions of the Market Act and consequently the levy of market fee can be said to be not supported by any quid pro quo.\n5. RIVAL CONTENTIONS:\nLearned senior counsel for the appellants vehemently submitted in support of the aforesaid twin contentions that the Market Act which was enacted by the Bihar legislature under Entries 26 and 27 of the State List read with Entry 28 therein had to be read subject to Entry 33 of the Concurrent List and as the Bihar Legislature itself had enacted the Sugar Act in exercise of its legislative powers under Entry 33 of the Concurrent List, there was no occasion left for the State of Bihar to get satisfied about the need to regulate the production and sale of sugarcane as well as manufactured items therefrom as per the Market Act. In short, the invocation of S. 3 read with S. 4 of the Market Act was totally misconceived and uncalled for. It was further contended that once the State of Bihar in exercise of its power of exemption u/s. 42 of the Market Act had exempted the appellant sugar factories from applicability of S. 18 of the Market Act, the entire machinery under the Market Act became inapplicable to regulate the sale and purchase of transactions concerning sugarcane, sugar and molasses as entered into by the appellant sugar factories. Consequently, there remained no occasion for the authorities functioning under the Market Act for demanding any market fee from the appellants u/s. 27 of the Market Act. It was also contended in further support of this submission that the Sugarcane Control Order, 1966 as well as the Sugar (Control) Order of the same year issued u/s. 3 of the Essential Commodities Act, 1955 and also the provisions of the Bihar Molasses (Control) Act, 1947 fully occupied the field of regulation of sale and purchase of sugarcane, sugar and molasses and on that ground also the provisions of the Market Act could not be pressed in service against the appellant sugar factories undertaking the purchase and sale of the concerned transactions.\n6. In the alternative, it was contended that once S. 15 of the Market Act is out of picture and once it remains an admitted position that the appellant sugar factories have to purchase sugarcane from purchase centres, there remains no occasion for the market committees to give any services under the Market Act to the appellant sugar factories. Hence the market committees were not entitled to recover any market fee from the appellants as there was no return benefit or quid pro quo made available to the appellants by the market committees and hence the impugned market fee in substance became a tax which could not be recovered under the Market Act by the market committees.\nReplying to these contentions, learned senior counsel for the State of Bihar and learned senior counsel appearing for the market committees submitted that the appellant sugar factories have no locus standi to maintain these proceedings for the simple reason that so far as their challenges to the levy of market fee on transactions of sale of sugar and molasses were concerned, as u/s. 27 of the Market Act levy was imposed on the buyers of sugar and molasses manufactured by the appellant companies, these sugar mills were not affected by the levy. That the appellant companies may at the highest be collecting agents of market fee if the buyers were not licensed under the Act but in most of the cases the appellant sugar companies were selling levy sugar to the Food Corporation of India and even free sugar was mostly sold by them to licensed buyers. Same was the case of sale of molasses to the concerned buyers. They, however, rightly conceded that the appellants cannot be said to be not having any locus standi to challenge the market fee levied on their purchase of sugarcane as the charge of market fee would be on them as buyers of sugarcane.\n7. On the merits of the contentions raised by learned senior counsel for the appellants, learned senior counsel for the respondents submitted that even if the exemption notification u/s. 42 of the Act purports to exempt the appellant sugar companies from whole of S. 15 of the Market Act, in substance the exemption is confined to S. 15(2) of the Act as there is already a declaration under S. 4 of the Market Act treating the purchase centres of the appellant sugar companies at the factory gates as well as at other places in the market area as sub-market yards. On a conjoint reading of these two notifications, therefore, it can be seen that exemption u/s. 42 of the Act was confined to excluding the operation of S. 15(2) of the Act qua these sugar factories. In the alternative, it was submitted that if the exemption notification is treated to cover entire S. 15 even then once the transactions of sale and purchase take place within the market area, charge u/s. 27 would get settled on these transactions. It was further submitted that there is enough return benefit made available to the sugar factories admittedly situated within the market area. That, in fact, their service centres are also declared to be sub-market yards even beyond the factory gate. That they utilise the link roads made available by the market committee for bringing sugarcane produce to the factory premises by giving facility of swift transportation. Thus the sugarcane as a raw material is brought to the factory premises before it gets dried up. This yields better quality and larger quantity of sugar and molasses.\n8. In addition thereto facilities of supply of necessary information regarding the prevalent prices of sugarcane are made available by the market committee. But even apart from that, the market committee can act as a mediator in enabling the sugarcane growers to get better price of sugarcane above the minimum price fixed under the Control Order and the Sugarcane Act and this role of the market committee would be beneficial not only to the producers of sugarcane but also to the factories which can be assured of appropriate good quality sugarcane purchased from the sugarcane growers. It is, therefore, wrong to suggest that there is no quid pro quo between the charge of market fee and the payment thereof by the sugarcane factories, that the infrastructural facilities made available to the industry as a whole have to be seen and transactions are not to be dissected for finding out the quid pro quo between charging of the market fee and the burden thereof borne by the sugar companies. It was, therefore, contended that none of the submissions canvassed by learned senior counsel for the appellants deserved to be accepted. In the light of the aforesaid rival contentions, we now proceed to deal with the twin contentions submitted for our consideration by learned senior counsel for the appellants in support of these appeals. However, before we deal with the merits of these contentions, the question of locus standi of the appellants is required to be considered at the outset.\n9. LOCUS STANDI OF THE APPELLANTS TO MAINTAIN THESE PROCEEDINGS:\nIt has to be kept in view that as per S. 27 of the Market Act the charge of the market fee is on the buyer of the agricultural produce bought or sold in the market area. The said section reads as under:\n\"Power to levy fees - (1) The Market Committee shall levy and collect market fees on the agricultural produce bought or sold in the market area at the rate of rupee one per Rs.100 worth of agricultural produce.\nXxxxx xxxx xxxx\n(2) The market fee chargeable under sub-s. (1) shall be payable by the buyer, in the manner prescribed.\n(3) The fee chargeable under sub-s. (1) shall not be levied more than once on a notified agricultural produce in the same notified Market Area.\n10. It is not in dispute between the parties that sugarcane is an agricultural produce as it is grown in fields by the cultivators. Both sugarcane and sugar are listed as Item nos. 1 and 3 in Para XII dealing with miscellaneous items as found in the Schedule to the Market Act enacted as per S. 2(1)(a) of the Act.\nS. 2(1)(a) of the Act defines agricultural produ as under : Agricultural produce means all produce whether processed or non-processed, manufactured or not, of Agriculture, Horticulture, Plantation, Animal, Husbandry, Forest, Sericulture, Pisciculture, and includes livestock or poultry as specified in the Schedule.\n12. In the light of the aforesaid provisions, it is obvious that the sugar factories operating in the market area within the jurisdiction of the market committee concerned can be said to be buyers of sugarcane, an agricultural produce. Their purchase centres are situated within the market area. As submitted by learned senior counsel for the respondents, all the purchase centres at which the appellant sugar factories purchase sugarcane as raw material are not only situated within the market area but are also declared as submarket yards. In fact the entire Bihar State is comprised of various market areas within the jurisdiction of different market committees. If that is so, it has to be held that when the charge u/s. 27 of paying market fee is imposed on the sugar factories as buyers of sugarcane within the market area, they have to be treated to be having sufficient locus standi as buyers of sugarcane to challenge the imposition of market fee on their purchase transactions. On this aspect, learned senior counsel for the respondents did not contest.\nHowever, their submission was that when purchased sugarcane is processed at the factories and converted into sugar and molasses and when such sugar and molasses are sold by the sugar factories, the charge of market fee on these sale transactions would settle on the buyers of sugar and molasses who have not made any grievance about payment of market fee. That may be so, however, the fact remains that if the sugar factories sell manufactured sugar and molasses out of the purchased raw material-sugarcane, and if the buyers are not licensed then as per the provisions of Rule 82 (iii) of the Bihar Agricultural Produce Markets Rules, 1975 the sugar factories as sellers have to realise the market fee from the buyers and have to deposit the same with the market committees. That obligation by itself would give sufficient locus standi to the sugar factories which sell sugar and molasses within the market area to challenge the aforesaid statutory obligation imposed on them by the Act and the Rules and to submit as to how they are not covered by the provisions of the Act. It may be that when they sell levy sugar to the Food Corporation of India, they may not have to undertake this liability as collecting agents of the market committee, so far as the market fee is concerned. Still even if partially in case of sale of free sugar to unlicensed buyers they have to be called upon to discharge their statutory obligation under Rule 82 (iii), it cannot be said that they have no locus standi to challenge the imposition of market fee on the transactions of sale effected by them in connection with sugar and molasses. The preliminary objection of learned senior counsel for the respondents against the locus standi of the appellants to maintain these proceedings is, therefore, over-ruled. This takes us to the consideration of the main twin contentions canvassed by learned senior counsel for the appellants for our consideration.\n13. CONTENTION NO. 1 : Applicability of the Market Act to appellants transaction of purchase of sugarcane and sale of sugar and molasses.\nSo far as this contention is concerned, we have to keep in view the relevant provisions of the Market Act, Sugar Act as well as the Orders under the Essential Commodities Act. In the first instance, we shall deal with the transactions of purchase of sugarcane by the sugar factories functioning in the market areas falling within the jurisdiction of respective market committees constituted under the Market Act. The Market Act has been enacted by the Bihar Legislature as per the legislative power vested in it by Entries 26, 27 and 28 of List II of Seventh Schedule of the Constitution. These entries read as under : 26. Trade and commerce within the State subject to the provisions of entry 33 of List III. 27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III. 28. Markets and fairs.\n14. It becomes at once clear that if location of markets and fairs simpliciter and the management and maintenance thereof are only contemplated by the Market Act, then they would fall squarely within the topic of legislative power envisaged by Entry 28 of List II. However, the Market Act, as we will presently show, deals with supply and distribution of goods as well as trade and commerce therein as it seeks to regulate the sale and purchase of agricultural produce to be carried on in the specified markets under the Act. To that extent the provisions of Entry 33 of List III override the legislative powers of the State Legislature in connection with legislations dealing with trade and commerce in, and the production, supply and distribution of, goods. Once we turn to Entry 33 of the Concurrent List, we find that on the topic of trade and commerce in, and the production, supply and distribution of, goods enumerated therein at sub-clause (b), we find listed items of foodstuffs, including edible oilseeds and oils. Thus to the extent to which the Market Act seeks to regulate the transactions of sale and purchase of sugarcane and sugar which are foodstuffs and trade and commerce therein, it has to be held that the Market Act being enacted under the topics of legislative powers under Entries 26, 27 and 28 of List II will be subject to any other legislation under Entry 33 of the Concurrent List. As it will be seen hereinafter, the Bihar Legislature itself has enacted the Sugarcane Act in exercise of its legislative powers under Entry 33 of the Concurrent List and, therefore, the field covered by the Sugarcane Act would obviously remain exclusively governed by the Sugarcane Act and to the extent the latter Act carves out an independent field for its operation, the sweep of the general field covered by the Market Act which covers all types of agricultural produce, would pro tanto get excluded qua sugarcane and the products prepared out of it. So far as the Market Act is concerned, it is necessary to note that it is an Act to provide for better regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Bihar and for matters connected therewith.\n15. The said Act is enacted essentially to protect the growers of agricultural produce in the State who on account of their ignorance, illiteracy and lack of collective bargaining power may get exploited by middlemen and economically strong purchasers of their agricultural produce with the result that the agriculturists may not get adequate price for their produce. It is with that end in view that the Market Act has been enacted. The Constitutional validity of the Madras Commercial Crops Markets Act, concerned with the regulation of purchase and sale of commercial crops grown by agriculturists was considered by a Constitution Bench of this Court in the case of M.C.V.S. Arunachala Nadar Etc. vs. The State of Madras & Others [(1959) Supp.(1) SCR 92 1958 Indlaw SC 59]. Subba Rao J., speaking for the Court while upholding the Constitutional validity of the said Act emphasised the necessity of such enactment with a view to protect the producers of commercial crops from being exploited by the middlemen and profiteers and to enable them to secure a fair return for their produce. The learned Judge referred to, with approval, the following recommendations of Royal Commission on Agriculture in India appointed in 1928. That cultivator suffers from many handicaps : to begin with he is illiterate and in general ignorant of prevailing prices in the markets, especially in regard to commercial crops. The most hopeful solution of the cultivators marketing difficulties seems to lie in the improvement of communications and the establishment of regulated markets and we recommend for the consideration of other Provinces the establishment of regulated markets on the Berar system as modified by the Bombay legislation. The establishment of regulated markets must form an essential part of any ordered plan of agricultural development in this country. The Bombay Act is, however, definitely limited to cotton markets and the bulk of the transactions in Berar market is also in that crop. We consider that the system can conveniently be extended to other crops and, with a view to avoiding difficulties, would suggest that regulated markets should only be established under Provincial legislation.\n16. Reference was also made to the Report of an Expert Committee appointed by the Government of Madras which graphically described the difficulties of the cultivators and their dependence upon the middlemen. The following is the extract from the Report of the Expert Committee as noted by Subba Rao J., for highlighting the need for regulated markets for cultivators of commercial crops. The middleman plays a prominent part in sale transactions and his terms and methods vary according to the nature of the crop and the status of the cultivator. The rich ryot who is unencumbered by debt and who has comparatively large stocks to dispose of, brings his produce to the taluk or district centre and entrusts it to a commission agent for sale. If it is not sold on the day on which it is brought, it is stored in the commission agents godown at the cultivators expense and as the latter generally cannot afford to wait about until the sale is effected he leaves his produce to be sold by the commission agent at the best possible price, and it is doubtful whether eventually he receives the best price. The middle class ryot invariably disposes of his produce through the same agency but, unlike the rich ryot he is not free to choose his commission agent, because he generally takes advances from a particular commission agent on the condition that he will hand over his produce to him for sale. Not only, therefore, he places himself in a position where he cannot dictate and insist on the sale being effected for the highest price but he loses by being compelled to pay heavy interest on the advance taken from the commission agent. His relations with middlemen are more akin to those between a creditor and a debtor, than of a selling agent and producer. In almost all cases of the poor ryots, the major portion of their produce finds its way into the hands of the village money-lender and whatever remains is sold to petty traders who tour the villages and the price at which it changes hands is governed not so much by the market rates, but by the urgent needs of the ryot which are generally taken advantage of by the purchaser. The dominating position which the middleman occupies and his methods of sale and the terms of his dealings have long ago been realized.\n17. Relying on the aforesaid observations Subba Rao J., speaking for the Constitution Bench, justified the need for such legislations and upheld the Act by laying down as under : The aforesaid observations describe the pitiable dependence of the middle-class and poor ryots on the middlemen and petty traders, with the result that the cultivators are not able to find markets for their produce wherein they can expect reasonable price for them. With a view to provide satisfactory conditions for the growers of commercial crops to sell their produce on equal terms and at reasonable prices, the Act was passed on July 25, 1933. The preamble introduces the Act with the recital that it is expedient to provide for the better regulation of the buying and selling of commercial crops in the Presidency of Madras and for that purpose to establish markets and make rules for their proper administration. The Act, therefore, was the result of a long exploratory investigation by experts in the field, conceived and enacted to regulate the buying and selling of commercial crops by providing suitable and regulated markets by eliminating middlemen and bringing face to face the producer and the buyer so that they meet on equal terms, thereby eradicating or at any rate reducing the scope for exploitation in dealings. Such a statute cannot be said to create unreasonable restrictions on the citizens right to do business unless it is clearly established that the provisions are too drastic, unnecessarily harsh and overreach the scope of the object to achieve which it is enacted.\n18. It, therefore, cannot be gainsaid that the need to have a regulated market where the agriculturist who grows sugarcane as a commercial crop can be assured of adequate price of the sugarcane produced by him and may not be exploited by middlemen, would justify the enactment of the protective umbrella of the Market Act. However, if the Act had stood by itself, no legitimate grievance could have been made by anyone on this score. But so far as the facts of the present cases are concerned, the very same Bihar Legislature enacted the Sugarcane Act of 1981 which has operated simultaneously with the Market Act for the entire State. The said latter Act is obviously enacted by the very same legislature in exercise of its legislative powers under Entry 33 of the Concurrent List. It is, of course, true that the Union Parliament has not passed any similar legislation in exercise of its concurrent legislative power under the very same Entry 33 of List III. We will, therefore, have to see to what extent the Sugarcane Act, which is a latter Act, has carved out a field for itself for protecting the sugarcane growers resulting in withdrawing the same subject matter from the general sweep of the Market Act which covers not only sugarcane but also number of other agricultural produce. In this connection, S. 3 of the Market Act requires to be noted. It reads as under : 3. Notification of intention of exercising control over purchase, sale, storage and processing of agricultural produce in specified area -\n[(1) Notwithstanding anything to the contrary contained in any other Act for the time being in force, the State Government may, by notification, declare its intention of regulating the purchase, sale, storage and processing of such agricultural produce and in such area, as may be specified in the notification.]\n(2) A notification under sub-s. (1) shall state that any objection or suggestion which may be received by the State Government within a period of not less than two months to be specified in the notification, shall be considered by the State Government.\n19. As per the aforesaid provisions, it has to be kept in view by the State Government concerned while forming the requisite intention whether there is any special legislation of the same State Legislature holding the field and serving the very same purpose of regulating such transactions. Mr. Shanti Bhushan, learned senior counsel for the appellant, vehemently contended that the Bihar Legislature itself had enacted the Sugarcane Act of 1981 whereunder adequate provision was made for regulating the purchase, sale, storage and processing of sugarcane. The complete machinery was provided thereunder for protecting the sugarcane growers and, therefore, there was no occasion for the State of Bihar to continue the regulation of purchase and sale transactions of sugarcane atleast after 1981 as per S. 3(1) of the Market Act. The preamble of the Sugarcane Act shows that amongst others it is enacted to regulate the production, supply and distribution of sugarcane intended for use in sugar factories and taxation of sugarcane and matters incidental thereto. Chapter II of the Sugarcane Act provides for Administrative Machinery for carrying out the purposes of the Act. S. 3 thereof deals with Establishment of Sugarcane Board. S. 4 lays down the Functions of the Board - (1) The Board shall advise the State Government on the following matters, namely :-\n(a) planning of development schemes connected with production, research, transport and sale of sugarcane;\n(b) matters pertaining to regulation of supply, purchase and weighment of cane;\n(c) the varieties of sugarcane, tested by the Sugarcane Research Institute in the State, which are suitable or unsuitable for use in a factory;\n(d) recommendations in respect of the price of cane to be supplied to factories;\n(e) determination of the price of cane payable by owners of units;\n(f) maintenance of healthy relations between the occupiers and managers of factories on the one hand and the cane-growers and co-operative societies on the other; and\n(g) such other matters as may be prescribed.\n20. S. 7 deals with Establishment of Zonal Development Council working of which can be supervised by the Board. The Collector of the District or the Sub-divisional Officer is to be the Chairman of the Zonal Development Council and is to be assisted by various persons as provided by S. 7. S. 8 deals with Functions of the Council - The functions of the Council shall be as follows :(a) to consider and prepare the programme for the development of communications, irrigations, soil analysis and other agricultural facilities relating to sugarcane;\n(b) to devise ways and means for executing development plan in all its essential including improvement and development of communications, cane varieties, supply of good quality seeds, fertilisers and manures, plant protection and prevention and control of diseases and pests;\n(c) to render all possible help in agricultural extension work of cane;\n(d) to assist in arrangements for the training of cultivators in improved methods of sugarcane cultivation; and\n(e) to perform such other functions pertaining and conducive to the general development of the reserved area as may be prescribed.\n21. S. 12 deals with Appointment of Cane Commissioner. It reads as under:-\n(1) The State Government may, by notification in the official Gazette, appoint any person to be the Cane Commissioner for the State of Bihar and to exercise the powers and perform the duties conferred and imposed on the Cane Commissioner by or under this Act.\n(2) The State Government may, by notification in the official Gazette, appoint such persons as it thinks fit to be the Additional Cane Commissioner, Joint Cane Commissioner, Deputy Cane Commissioner and Assistant Cane Commissioner to assist the Cane Commissioner within such local limits as may be assigned to them and confer and impose upon them all or any of the powers and duties of the Cane Commissioner within their respective jurisdiction.\n22. S. 13 deals with Appointment of Cane Officer. Then comes Chapter IV which deals with Purchase and Supply of Cane to sugar factories. S. 25 deals with Appointment of Manager and provides as under :- (1) Within thirty days of the commencement of this Act and thereafter within the same period before the commencement of every crushing year the occupier of a factory shall send to the Collector a notice of appointment of any person as manager for the purposes of this Act or the rules :\nProvided that until the first notice of appointment of manager under this Act is sent, the person appointed or deemed to be appointed as manager under the Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance, 1973 (Bihar Ordinance 47 of 1973) shall be deemed to be a manager under this Act.\n(2) No person shall be deemed to have been appointed as manager until a sum of two thousand and five hundred rupees is deposited by him or on his behalf as security, with the Collector concerned in the prescribed manner.\n(3) Whenever a new manager is appointed, the occupier of the factory shall send to the Collector a written notice of the change within fifteen days of the date on which the new manager assumes charge of his work.\n(4) During any period for which provisions of sub-ss. (1) and (2) are not complied with or the person appointed as manager does not manage the factory, or his security money is not replenished to the extent of its forfeiture under sub-s. (2) of section 57, the occupier of the factory himself shall be deemed to be the manager of the factory for the purposes of this Act and the rules.\n23. S. 27 deals with Estimate of quantity of cane required by factory and lays down as follows:- (1) The occupier of every factory shall submit to the Cane Commissioner, on or before the prescribed date, in every crushing year, an estimate, in the prescribed manner, of the quantity of cane which may be required in the factory during such crushing year.\n(2) The Cane Commissioner shall examine every estimate submitted under sub-s. (1) and where the occupier of a factory has failed to submit an estimate under subsection (1), he shall draw up an estimate by himself in the prescribed manner and shall publish the same in such manner as may be prescribed with such modifications, if any, as he may think fit, after consultation with the council concerned.\n(3) The prescribed authority may, either suo motu or on an application made to it by the occupier of the factory, within thirty days of the publication of the estimate under sub-section (2), revise the estimate, published under that sub-section and that authority shall cause the estimate so revised to be published in the prescribed manner.\n24. S. 28 deals with Conditions precedent to commencement of purchase of cane. It states as under :(1) The occupier of a factory or any person acting on his behalf shall not commence the purchase of cane unless adequate arrangements, as may be prescribed, have been made in respect of the following matters, namely :-\n(a) weighment of cane to be purchased;\n(b) payment of the price of cane purchased;\n(c) parking of cane-carts;\n(d) approach roads to the place of weighment; and (e) distribution of requisition slips.\n(2) Where survey has not been made under section 34, the occupier of the factory shall, before the commencement of purchase of cane, have the survey of the standing cane-crop made as the prescribed manner.\n25. Then follows S. 29 which deals with Establishment of purchasing centres. It reads as under:- (1) The occupier of a factory, or the Secretary of a Cooperative Society may establish a purchasing centre after giving a notice in writing to the Collector at least thirty days before the commencement of purchase of cane and copies of such notice shall be sent by the occupier of the factory or the Secretary of the Society forthwith to the Cane Officer concerned and the Cane Commissioner .\nThe remaining sub-sections of S. 29 lay down the procedure under which the Collector can direct shifting of the location of any purchasing centre to another place and also the power of the prescribed authority to revise the order of the Collector. S. 31 deals with Declaration of reserved area and provides as follows :(1) The Cane Commissioner may, having regard to the crushing capacity of the factory, the availability of sugarcane in such area and the need for production of sugar and after consulting the council concerned and the occupier of the factory or the occupiers of other affected factories and after considering any objection that may be raised, issue an order, by notification in the official Gazette, declaring any area to be the reserved area for the purpose of supply of cane to the factory during a particular crushing year or years and may likewise cancel any such order or alter the extent of the area so reserved :\n26. S. 32 deals with Purchase of cane grown in a reserved area. Sub-s. (6) thereof reads as follows Except with the permission of the State Government, cane grown in a reserved area shall not be sold to or purchased by -\n(i) the occupier of any factory other than the factory for which the area is reserved; or\n(ii) any person for the purpose of supply to any factory other than the factory for which the area is reserved; or\n(iii) the owner of a unit to whom a licence has not been granted u/s. 16.\nSub-s. (9) of S. 32 reads as follows :- Subject to the provisions of sub-section (1), the State Government may prohibit or restrict or otherwise regulate the movement of sugarcane from any reserved area except under and in accordance with a permit issued by it in this behalf.\n27. S. 39 deals with Recording of correct weight of cane and reads as under :- (1) The occupier of every factory, the owner of every unit, Secretary of every Co-operative Society and every person in charge of weighmens shall maintain, subject to such limits of error as is prescribed by the State Government under the law relating to weights and measures, for the time being in force, a record of the correct weight of cane purchased at the place of weighment.\n(2) No cane shall be purchased without being weighed.\nS. 40 deals with Provisions for approach roads etc., at the purchasing centres and reads as under :The occupier of a factory or a co-operative society purchasing cane at any purchasing centre shall make such provisions for the following and keep them in such repairs as may be prescribed, namely :-\n(a) approach road and parking space for animal-driven carts;\n(b) sheds for animals and cart-drivers;\n(c) drinking water for persons using the purchasing centre; and\n(d) drinking water and water-trough for animals.\n28. Then follows Chapter V which deals with Payment of price of cane and other matters. S. 42 deals with minimum price of cane supplied to a unit and reads as under :The State Government may, after consulting the Board, determine by notification in the official Gazette, in respect of any area the minimum price of cane payable by the owners of units to the cane-growers or co-operative societies for cane supplied to them in the crushing year concerned : Provided that the minimum price so determined shall not exceed the minimum price payable by the occupier of a factory under any law for the time being in force, in respect of the cane supplied from the same area. Mode of payment of price of cane to the sugarcane growers is provided by S. 43. S. 44 deals with Deduction and provides as follows :(1) The occupier of a factory or any person on his behalf shall not make any other deductions from the price of cane except the deduction on account of any loan advanced by him, or on his guarantee or otherwise advanced by a bank or other institutions u/s. 50(1). The remaining sub-sections of S. 44 deal with the circumstances under which any person in charge of payment of price of cane on behalf of a co-operative society cannot make deductions from the price of cane as fixed. S. 46 deals with Decision of certain disputes and reads as under :-\n(1) If any dispute arises regarding the price of cane supplied to the occupier of a factory the person entitled to the price or the document on the basis of which the price is claimed, payment of the price shall be withheld and the occupier of the factory to which the cane was supplied shall enter the dispute in a register in the prescribed form and refer it within the prescribed period to the prescribed authority who shall, after giving the parties a reasonable opportunity of being heard and after such inquiry as he may consider necessary, decide the dispute :\nProvided that whenever the payment of the price is whether held under this sub-section, the occupier of the factory shall deposit with the prescribed authority in the prescribed manner the amount in dispute, within one week of such reference.\n(2) Any other dispute touching an agreement for purchase of cane by the occupier of a factory or its supply to him and any dispute relating to purchase of cane or cane-juice by the owner of a unit and payment of price thereof shall be referred to the authority prescribed under sub-s. (1) who shall decide it in the manner laid down in that subsection.\nXxxx xxxx xxxx\n(3) Any person aggrieved by a decision made under subs. (1) or sub-s. (2) may, within thirty days of the decision, prefer an appeal to the Collector who shall, after giving the parties a reasonable opportunity of being heard and after such inquiry as he may consider necessary, pass such order, as he thinks fit.\n(4) An order of the Collector under sub-s. (3) and subject to such order, the decision of the prescribed authority under sub-ss. (1) or sub-s. (2) shall be final.\n29. S. 48 deals with Payment of commission on purchase of cane and reads as follows :(1) The State Government may, by notification in the official Gazette, require the occupier of a factory to pay in the prescribed manner a commission not exceeding fifteen paise per quintal on the purchase of cane made by him or on his behalf and may, by a like notification exempt the occupier of any new factory to be specified in the notification, from the payment of such commission for prescribed period.\nS. 49 imposes Tax on Sugarcane which reads as follows :(1) The State Government may, by notification in the official Gazette, impose -\n(a) a tax not exceeding one rupee per quintal on entry of sugarcane into a local area specified in such notification, for consumption or use of, or sale to a factory situated therein :\n(b) a tax not exceeding one rupee per quintal on the purchase of sugarcane by or on behalf of the occupier of a factory :\nS. 50 deals with Advance of loan by occupier of factory and lays down as follows :(1) The occupier of a factory or any person working on his behalf or any bank may advance loan to a cane-grower or a Co-operative Society for such purposes connected with cultivation or supply of cane to the extent of the amount and in the manner as may be prescribed.\n(2) Interest at the rate specified in s. 51 shall be payable on the loan advanced under sub-s. (1) and the loan and the interest shall be realisable in the prescribed manner.\n30. Chapter VI deals with miscellaneous items. S. 52 of the said chapter deals with penalty for offences and provides as follows :If any person contravenes or attempts to contravene or abets the contravention of any of the provisions of this Act or the rules or of any order made or direction given thereunder or the terms and conditions of any licence, he shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both and in the case of a continuing contravention, with an additional fine which may extend to one thousand rupees for every day during which such contravention continues after conviction for the first contravention:\nS. 58 deals with the power to summon and enforce attendance of witnesses and production of documents and provides as under :For the purposes of enquiries under this Act the Cane Commissioner or any person exercising the powers of the Cane Commissioner or a Cane Officer or an Officer appointed u/s. 34 shall have the same powers to summon and enforce the attendance of witnesses and parties and to examine them on oath and to compel the production of document as a civil court under the Code of Civil Procedure, 1908 (5 of 1908):\n31. Provided that for the purpose of any penalty under the provision of the said Code upon any defaulter, a reference shall be made to the civil court of competent jurisdiction for appropriate action. The aforesaid provisions of the Sugarcane Act leave no room for doubt that the Bihar Legislature in its wisdom has enacted a special machinery for regulating the purchase and sale of sugarcane to be supplied to sugar factories for manufacturing sugar out of the sugarcane produced for them in the reserved area. The relevant provisions of the Act project a well knit and exhaustive machinery for regulating the production, purchase and sale of sugarcane for being supplied as appropriate raw material to the factories manufacturing sugar and molasses out of them. We may also turn to Rule 22 of the 1978 Rules, made under the Bihar Sugarcane Act, which provides that the factory shall not commence the purchase of cane at any purchasing centre unless\n(a) all the weighbridges to be used for weighment of cane have duly been checked and certified as workable by the competent authority under the law relating to weights and measures;\n(b) appropriate arrangements to the satisfaction of the Collector have been made for arranging funds for making payment of the price of cane;\n(c) Cane Officer of the area concerned has certified that suitable arrangements for parking of cane carts and approach roads, as specified in rule 30 and for distribution of requisition slips and identification cards have been made; and\n(d) adequate arrangements for weighment, adequate staff, sufficient number of weighbridges and adequate means of transport for carrying cane from all outlying purchasing centres to the factory, to the satisfaction of the Collector, have been made.\n32. Rule 30 requires the sugar factory to : (a) provide at every purchasing centre suitable approach roads connecting the nearest public roads with the parking ground and likewise suitable tracks from the parking ground to the point where cane is unloaded after weighment;\n(b) keep such roads and tracks repaired and satisfactorily workable at all times the purchasing centre is in operation;\n(c) provide space in the parking ground for accommodating at least one-fourth of the maximum number of animal-driven carts carrying cane required to be brought to the purchasing centre on any day for weighment and purchase;\n(d) keep the metalled tracks neat and clean and separated by railing or trenches;\n(e) provide shelters for animals and cart-drivers at every purchasing centre, to the satisfaction of the Collector;\n(f) provide at least four water taps or hand pumps at convenient points of each purchasing centre located at or adjoining factory premises (referred to hereinafter as mill gate purchasing centre) and one such water tap or hand pump at every purchasing centre other than the mill gate purchasing centre (referred hereinafter as the outstation purchasing centre),\n(g) provide adequate number of water troughs in each parking yard to be located at such points as may be determined by the Cane Officer concerned, and;\n(h) provide such other facilities at any purchasing centre as may be specified in the directions of the Cane Commissioner issued from time to time.\n33. The aforesaid provisions, therefore, clearly indicate that the need for regulating the purchase, sale, storage and processing of sugarcane, being an agricultural produce, is completely met by the comprehensive machinery provided by the Sugarcane Act enacted by the very same legislature which enacted the general Act being the Market Act. Once that conclusion is reached, it becomes obvious that the Market Act which is an enabling Act empowering the State Authorities to extend the regulatory net of the said Act to notified agricultural produce as per S. 3(1) will get its general sweep curtailed to the extent the special Act being the Sugarcane Act enacted by the very same legislature carves out a special field and provides special machinery for regulating the purchase and sale of the specified agricultural produce, namely, sugarcane. It has also to be kept in view that the very heart of the Market Act is S. 15 of the Act which reads as under : [15. Sale of agricultural produce - (1) No agricultural produce specified in notification under sub-s. (1) of section 4, shall be made bought or sold by any person at any place within the market area other than the relevant principal market yard or sub-market yard or yards established therein, except such quantity as may on this behalf be prescribed for retail sale or personal consumption.\n(2) The sale and purchase of such agricultural produce in such areas shall not withstanding anything contained in any law be made by means of open auction or tender system except in cases of such class or description of produce as may be exempted by the Board.]\n34. It is this section which enables the market committee concerned to monitor and regulate the sale and purchase of the agricultural commodity which is covered by the protective umbrella of the Act. Once such an agricultural produce is brought for sale in the market yard or sub-market yard, the sale is to be effected by auction or by inviting tenders. Such a scheme is in direct conflict with the scheme of the Sugarcane Act wherein there is no question of sugar factory being called upon to enter into a public auction for purchasing sugarcane which is specially earmarked for it out of the reserved area. In fact, provisions of the Sugarcane Act and the provisions of the Market Act, especially S. 15 read with S. 3(1), cannot harmoniously co-exist. It is precisely to avoid such a possible conflict and head-on collision between general Act, namely, the Market Act and the special Act, namely, the Sugarcane Act which was later on enacted in 1981 by the very same Bihar Legislature, that the State Government in exercise of its exemption power u/s. 42 of the Market Act issued a notification dated 22nd March, 1976 to the following effect: S.O. 550 the 22nd March, 1976 (Published in Bihar Gazette (ex-order) dated 23-3-1976) .-\nIn exercise of the powers conferred u/s. 42 of the Bihar Agricultural Produce Markets Act, 1960, the Governor of Bihar is pleased to exempt all sugar mills from the provisions of S. 15 of the Bihar Agricultural Produce Markets Act, 1960 with regard to their sale and purchase of agricultural produce notified under sub-s. (1) of S. 4 of the said Act)\n35. This very notification shows that the State Government had given up its erstwhile intention of regulating the sale and purchase of sugarcane as per S. 3(1) of the Market Act which could not survive any further after the issuance of the aforesaid exemption notification. It is easy to visualise that the market committee can control purchase, sale, storage and processing of agricultural produce in the specified area under the Market Act only when the sale and purchase of agricultural produce can be effected as per S. 15 in the principal market yard or sub-market yard. Market is defined by S. 2(1)(h) of the Market Act which reads as under : market means a market established under this Act for the market area and includes, a principal market yard and sub-market yard or yards, if any. It is at such market yard that the regulation of sale and purchase of agricultural produce shall be effected as required by S. 15. Once S. 15 is out of picture, the mere declaration of market area as per S. 4 and the general declaration of intention to regulate purchase, sale, storage and processing of agricultural produce like sugarcane as per S. 3 of the Market Act or declaration of market yard or sub-market yards as per S. 5 would remain an empty formality or would represent an empty eggshell with its contents taken out. The entire machinery of the Market Act would be rendered redundant qua agricultural produce to which S. 15 does not apply. S. 15 is the heart and soul of the Act.\n36. Due to its inapplicability to a given agricultural produce there would remain no occasion for the market committee concerned to exercise its regulatory functions for such a produce. This is the precise result which has ensued regarding regulation of purchase and sale of sugarcane by the market committee concerned in view of the combined operation of the relevant provisions of the Sugarcane Act and the exemption notification u/s. 42 of the Market Act excluding the application of S. 15 of the Market Act to the sale and purchase transactions of sugarcane in the market area. It is not possible to agree with learned senior counsel for the respondents that notification u/s. 42 of the Act in substance excludes only the applicability of S. 15(2). On the express wordings of the said notification it is not possible to countenance this contention. Even if declaration under S. 5 treating the premises of the sugar factories and the purchase centres from which they have to purchase sugarcane as per the Sugarcane Act is to be held to be operative, such a declaration would be devoid of any efficacy under the Market Act as the very purpose of the declaration of such market yard would not get fructified once sugarcane will not be required to be brought for purchase and sale in such declared market yard. It has to be kept in view that the relevant provisions of the Market Act laying down the machinery for effecting the regulation of purchase, sale, storage and processing of agricultural produce cannot be of any avail once purchase and sale of such an agricultural produce are not required to be effected at the relevant market yard and have not to be subjected to open auction or tender for fixing proper prices for such agricultural produce to be paid to the growers of such produce. It must, therefore, be held that the entire machinery of the Market Act cannot apply to the transactions of purchase of sugarcane by the appellant sugar factories as they are fully covered by the special provisions of the Sugarcane Act.\n37. It is also necessary to note that if both these Acts are treated to be simultaneously applying to cover sale and purchase of sugarcane, the possibility of a clear conflict of decisions of Officers and Authorities acting under the Sugarcane Act on the one hand and the Market Act on the other would arise. These authorities acting under both the State Acts, dealing with the same subject-matter and covering the same transactions may come to independent diverse conclusions and none of them being subordinate to the other may create a situation wherein there may be head-on collision between the decisions and the orders of these authorities acting on their own in the hierarchy of the respective statutory provisions. For example, the Marketing Inspector may find that weighment of sugarcane was not proper at a given point of time, while the Cane Officer may find to the contrary. In the hierarchy of proceedings under the Market Act the market committee may take one decision with respect to the same subject matter, for which the Collector exercising appellate powers under the Sugarcane Act may take a contrary decision. This would create an irreconcilable conflict of decisions with consequential confusion. So far as the buyers and sellers of agricultural produce-sugarcane are concerned, it is of no avail to contend as submitted by learned counsel for the respondents that for avoiding such conflicts, S. 15 is dispensed with by the State in exercise of its power u/s. 42 of the Market Act, whether such an exemption can be granted by the State u/s. 42 or not is not a relevant consideration for deciding the moot question whether the statutory scheme of the Market Act can harmoniously co-exist with the statutory scheme of the Sugarcane Act as enacted by the very same legislature. It is possible to visualise that the State Authorities may not exercise powers u/s. 42 of the Act. In such an eventuality, the Sugarcane Act would not countenance a public auction of sugarcane to be supplied by cane grower to the earmarked factory for which sugarcane is grown in the reserved area. On the other hand, the Market Act would require the very same sugarcane to be brought to the market yard for being sold at the public auction to the highest bidder who may not be the sugar factory itself. Thus what is reserved for the sugar factory by way of raw material by the Sugarcane Act would get de-reserved by the sweep of S. 15 of the Market Act.\n38. To avoid such a head-on conflict, it has to be held that the Market Act is a general Act covering all types of agricultural produce listed in the Schedule to the Act, but out of the listed items if any of the agricultural produce like sugarcane is made subject-matter of a special enactment laying down an independent exclusive machinery for regulating sale, purchase and storage of such a commodity under a special Act, then the special Act would prevail over the general Act for that commodity and by necessary implication will take the said commodity out of the sweep of the general Act. Therefore, learned counsel for the appellants are right when they submit that because of the Sugarcane Act the regulation of sale and purchase of sugarcane has to be carried out exclusively under the Sugarcane Act and the said transactions would be out of the general sweep of the Market Act. None of its machinery would be available to regulate these transactions. But even apart from the provisions of the Sugarcane Act, learned senior counsel for the appellants also placed reliance on the Sugarcane (Control) Order, 1966 enacted under the provisions of S. 3 of the Essential Commodities Act, 1955 for submitting that purchase and sale of sugarcane is also controlled by the aforesaid Central Government Order issued under the Essential Commodities Act, and consequently the said provision would supersede the general provisions of the Market Act. We, therefore, now proceed to consider this submission. Sugarcane (Control) Order, 1966 is issued by the Central Government in exercise of powers conferred by S. 3 of the Essential Commodities Act, 1955. Cl. 2 sub-cl. (c) defines factory and reads as under : factory means any premises including the precincts thereto in any part of which sugar is manufactured by vacuum pan process.\n39. Price is defined by sub-cl. (g) thereof which reads as under : price means the price or the minimum price fixed by the Central Government from time to time for sugarcane delivered Cl. 3 of the Order deals with the fixation of minimum price by the Central Government for making it payable by purchaser of sugar to the sugarcane growers. Clause 3A deals with rebate that can be deducted by purchaser of sugar from the price to be paid to the sugarcane grower or the sugarcane growers co-operative society. Rebate provided therein pertains to the minimum price of sugarcane fixed under Clause 3, or the price agreed to between the producer or his agent and the sugarcane grower or the sugarcane growers co-operative society. There is a provision for additional price to be paid to the sugarcane grower by the purchaser of sugarcane as laid down in Cl. 5. Clause 5-A deals with additional price for sugarcane purchased on or after 1st October, 1974 by the producer of sugar. Cl. 6 deals with power of the Central Government by Order to regulate distribution and movement of sugarcane. As per this clause the Central Government can, by order, direct the sugarcane growers to supply the earmarked quantity of sugarcane grown by them in the reserved area fixed for sugar factories to ensure continuous supply of sugarcane as raw material to such factories. This provision is parallel to the statutory provisions enacted by the Bihar Legislature in the Sugarcane Act referred to earlier by us. Cl. 9 refers to the power of the Central Government or any person authorised in this behalf to call for information from various sources as enacted therein. Clause 9-A deals with the power of entry, search and seizure of premises which obviously has to be exercised for fructifying the purposes of the Act. Cl. 11 deals with delegation of powers by the Central Government to any officer or authority thereof or to any State Government or any officer/authority of a State Government. The aforesaid relevant provisions of the Sugarcane (Control) Order show that it seeks to lay down the minimum guaranteed price of sugarcane to the sugarcane growers with a corresponding obligation on them to supply sugarcane to the earmarked factories for which the reserved areas can be fixed.\n40. This Order also contemplates negotiated price between the sugarcane growers on the one hand and the sugarcane factories on the other, for whom fixed quota of sugarcane can be earmarked. It has to be appreciated that the aforesaid provisions of the Sugarcane (Control) Order operate in the same field in which the Bihar Legislative enactment, namely, the Sugarcane Act operates and both of them are complementary to each other. When taken together, they wholly occupy the field of regulation of price of sugarcane and also the mode and manner in which sugarcane has to be supplied and distributed to the earmarked sugar factories and thus lay down a comprehensive scheme of regulating purchase and sale of sugarcane to be supplied by sugarcane growers to the earmarked sugar factories. It is, however, true that comprehensive procedure or machinery for enforcing these provisions is found in greater detail in the Sugarcane Act of the Bihar Legislation. But on a combined operation of both these provisions, it becomes at once clear that the general provisions of the Market Act so far as the regulation of sale and purchase of sugarcane is concerned get obviously excluded and superseded by these special provisions. In this connection, we may refer to a decision of the Karnataka High Court in the case of Vasavi Traders vs. State of Karnataka & Ors. (1982 (2) Karnataka Law Journal 357). In that case Venkatachaliah J., (as he then was) speaking for a Division Bench of the Karnataka High Court, considered the impact of Sugarcane (Control) Order on the general sweep of the Karnataka Agricultural Produce Market (Regulation) Act, 1966. Point no. 3 was framed in this connection, which reads as under : Whether the Act as amended by Act 17 of 1980 in so far it provides for regulation of marketing of sugarcane is unConstitutional, as its marketing is regulated by the provisions of the Central Act, viz., The Essential Commodities Act, 1955, and the Sugarcane (Control) Order made thereunder?\n41. While answering point no.3 in affirmative, the learned Judge at para 39 of the report, made the following pertinent observations : .. It appears to us that the Sugarcane (Control) Order regulates every aspect of marketing of sugarcane and its provisions are irreconcilable with the provisions relating to the marketing under the Act. For instance, the place of delivery, the price, the manner of its payments are all fixed by the statutory order. The same aspects of marketing are sought to be regulated by the Act. The two sets of provisions collide. S.6 of the Essential Commodities Act gives overriding effect to the orders made under S.3 of that Act as against any other Law. The small portion of the sugarcane grown by the grower the sale of which is left regulated under the statutory Order is again a matter - and part - of the policy of the regulation itself.\nAccordingly, point no.3 in that case was answered in affirmative apart from the question of repugnancy which strictly did not arise for their consideration. The aforesaid reasoning of the learned Judges of the Karnataka High Court clearly indicates that the entire field of regulation of purchase and sale of sugarcane in the market area is occupied by the Sugarcane Control Order. This reasoning was left untouched by this Court in appeal against the said decision and, therefore, got confirmed in the case of I.T.C. Ltd. and Others vs. State of Karnataka and Others (1985 (Suppl.) SCC 476 1985 Indlaw SC 531).\n42. Learned senior counsel for the respondents was right when he contended in the aforesaid decision before this Court that the merits of the reasoning which appealed to the High Court were not gone into as the appeal arising from the judgment on this point was not pressed. However, the fact remains that the aforesaid reasoning of the Karnataka High Court remained untouched by this Court, nor was it dissented from. The facts of the present case project even a stronger situation, so far as the appellants are concerned. Whatever shortfall is found in the Sugar (Control) Order has been supplemented by the Sugarcane Act by the Bihar legislation itself. Reasoning which appealed to the Karnataka High Court in the above judgment rendered in absence of a separate complementary legislation by the Karnataka Legislature gets further strengthened in the light of the Sugarcane Act in the present case. Consequently on a conjoint reading of the Sugarcane Order as well as the Sugarcane Act, an inevitable conclusion has to be reached that the regulation of sale and purchase of sugarcane in the entire market area for which the general Act, namely, the Market Act is enacted, is fully governed and highlighted by these two special provisions harmoniously operating in the very same field.\n43. Therefore, there would remain no occasion for the State Authorities to rationalise and reasonably visualise any need for regulating the purchase, sale as well as storage of sugarcane in the market area concerned. The wide sweep of general notification of S. 3 of the Market Act, therefore, will have to be read down by excluding from its general sweep sugarcane and its products as the definition of agricultural produce as noted earlier would otherwise include not only primary produce of agriculture but also any other commodity processed or manufactured out of such primary agricultural produce. That is precisely the reason why the State of Bihar having realised the futility of the need about controlling and regulating the sale and purchase of sugarcane in the market area by the sugar factories excluded the operation of S. 15 of the Act, which noted earlier, is the soul of the Act. It is easy to visualise that if transactions concerning an agricultural produce are excluded from the operation of S. 15 of the Act, the entire machinery available to the market committee to regulate such transactions would get out of picture and there would be no room for the market committee to supply any infrastructural facility or other benefits to the seller of such agricultural produce on the one hand and the purchaser thereof on the other. Before parting with the discussion on this point, it is necessary to note one submission of learned senior counsel Shri Rakesh Dwivedi for the respondents - State of Bihar.\nHe submitted that the legal proposition regarding special Act excluding the operation of general Act can be invoked only when the general Act irreconciliably derogates or conflicts with the special Act while dealing with the same subject matter and cannot be harmonised. He submitted that the broad objective of the two enactments is different. The Sugarcane Act purports to regulate production, supply and distribution of sugarcane whereas the Market Act lays emphasis on regulating the market. The subject matters are closely allied, but nevertheless distinct. He placed reliance on two decisions of this Court in support of his aforesaid contention. In the case of Jugal Kishore vs. State of Maharashtra and Others (1989 Suppl. (1) SCC 589 1988 Indlaw SC 235), this Court was concerned with the question whether the provisions regarding Ceiling on Land as fixed by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 could be reconciled and could harmoniously co-exist with 1958 Act. In this connection, Sabyasachi Mukharji J., speaking for the Court made the following pertinent observations :\n44. Unless the Acts, with the intention of implementing various socio-economic plans, are read in such complementary manner, the operation of the different Acts in the same filed would create contradiction and would become impossible. It is, therefore, necessary to take a constructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the court. The aforesaid observations cannot be of any assistance to learned senior counsel for the respondents as the schemes of the relevant Acts to which we have made a detailed reference contra-indicate the possibility of harmonious operation of the Market Act on the one hand and the Sugarcane Act and the Sugar (Control) Order on the other. Shri Dwivedi tried to get out of this situation by submitting that as there is already an exemption notification u/s. 42 of the Market Act, S. 15 will not be applicable to such transactions and, therefore, it would remain governed by the provisions of the Sugarcane Order and the Sugarcane Act. With respect, as seen earlier, it is an over simplification of the situation. As a question arises whether two legislations operating in the same field can be reconciled or not, a mere possibility of the provisions of one of the inconsistent enactments being excluded by resorting to exemption power under another enactment cannot cure the basic inconsistency between them. It is obvious that such exemption power entrusted to its delegate by its Legislature may or may not be utilised. Consequently, a basic inconsistency between two legislative enactment would remain operative dehors such exemption, if any. Such conflicting statutory schemes in their operation in the same field would directly collide. It may be that the Market Act and the Sugarcane Act can both be treated as dealing with socio-economic balancing of interests of growers of agricultural produce and the purchasers thereof, but if it is impossible to reconcile them, the statute laying down the general scheme of operation has to make room for a special statute for which a separate and exclusive field is carved out by the legislature itself.\n45. Reliance placed by Shri Dwivedi, senior counsel for the State of Bihar, on a decision of the two judge Bench of this Court in the case of S. Satyapal Reddy and Others vs. Govt. of A.P. and Others (1994(4) SCC 391 1994 Indlaw SC 1568) for submitting that minimum qualifications prescribed by the rules framed under the Central Act could co-exist with higher qualifications prescribed by the State rules also cannot be of real assistance to him for the simple reason that if minimum prices were fixed by the Sugarcane (Control) Order and the Sugarcane Act had stopped short by providing only minimum price and had not regulated the fixation of even higher contractual price by providing for a machinery for the same and had not fixed and regulated the production, control, distribution, sale and purchase of sugarcane, it could have been urged by counsel for the respondents with some emphasis that both these statutory provisions could harmoniously coexist but as discussed earlier such a possibility is not only remote but incapable of visualisation. It is also not possible to agree with the contention of learned senior counsel Shri Dwivedi that the Sugarcane Act of 1981 does not expressly purport to exclude the Market Act, especially when the Bihar Legislature that had enacted the former Act was aware of the Market Act, 1960 holding the field. That this circumstance shows that the legislature purposely did not exclude the applicability of the Market Act so far as the purchase and sale of sugarcane in market areas were concerned. However, this contention by itself cannot clinch the issue. If the very same legislature had felt that existing general Act was sufficient to foot the bill, then there would have been remained no occasion for the very same legislature to enact a special Act for control, regulation, sale and purchase of sugarcane after passage of 21 years. Therefore, the latter Act clearly envisaged carving out of a special field for regulating the sale and purchase of sugarcane and to that extent pro tanto it excluded the operation of the Market Act for that commodity. The intention of the legislature is thus very clear on this aspect.\n46. But apart from that, intention of its delegate-the State of Bihar itself is also clear when it excluded S. 15 of the Market Act in exercise of its exemption power u/s. 42 of the Market Act. It is difficult to appreciate the contention of learned senior counsel that S. 15 of the Market Act is not the core of the Act. On a conjoint reading of Sections 3, 4, 15, 27 and 30 of the Act it has to be held that it is only because of the operation of S. 15 covering the sale and purchase transactions of agricultural produce that the market committee can effectively discharge its functions entrusted to it by the Act. But for S. 15 there would remain no occasion for the market committee to effectively regulate the sale and purchase transactions of the agricultural produce concerned. S. 15 mandates the sellers and producers of agricultural produce to operate in the notified market yard or sub-market yards and only at these places the market committee through its officers and servants can discharge its functions effectively by regulating these transactions and for that purpose all the infrastructural facilities would be available. The entire machinery provisions enacted for the purpose would fulcrum round the vibrant operation of S. 15. Once S. 15 is excluded qua any agricultural produce the entire machinery of the Market Act would come to a grinding halt so far as such an excluded agricultural produce is concerned. Sugarcane is one such produce as we have already seen earlier.\n47. Consequently, qua such a produce the general sweep of the Market Act will be a total non-starter. Logically, therefore, there would remain no occasion for the market committee to justify levy of market fee u/s. 27 of the Act read with S. 30 on these transactions. On a conjoint reading of Ss. 27 and 30 of the Market Act, it becomes clear that a market committee which has to effectively control and regulate the sale and purchase of agricultural produce brought for sale and purchase in the market area as enjoined by S. 15 can effectively discharge its functions and spend its funds for supplying the necessary infrastructure for this purpose as laid down by S. 30. At this stage, we may also refer to an additional submission of the Addl. Solicitor General of India Shri R.N. Trivedi in support of the respondents. He submitted that Entry 28 of List II of the Seventh Schedule of the Constitution operates on its own and cannot be affected by any legislation pertaining to industry as found in Entry 52 of List I of Seventh Schedule of the Constitution. To that extent the learned senior counsel is right. However, as we have seen earlier, Entry 28 of List II dealing with Markets and Fairs has to be read jointly with Entries 26 and 27 dealing with Trade and Commerce and once the State Legislation deals with these topics then it also squarely invokes legislative powers under Entry 33 of List III. That is precisely the entry under which the Sugarcane Act, 1981 can be said to have been enacted. It is, of course, true that the Union Parliament has not exercised its concurrent legislative powers under Entry 33 of List III for regulating the sale and purchase of sugarcane. But, as noted earlier, the Sugarcane (Control) Order promulgated under the central legislation of the Essential Commodities Act when read harmoniously and in conjunction with the State Sugarcane Act carves out a special field for their operation and by the sweep of their combined operation the general provisions of the Market Act pro tanto get excluded so far as the transactions of purchase and sale of sugarcane in the market area are concerned.\n48. \"2. SALE OF SUGAR AND MOLASSES: So far as the sale transactions pertaining to these commodities are concerned, it has to be kept in view that they will have to be treated as agricultural produce in the light of the definition of S. 2(1)(a) of the Market Act. They get manufactured from the basic agricultural produce, namely, the sugarcane. However, the question remains whether their sales are also controlled by the relevant special statutory provisions. It will, therefore, be necessary for us to have a look at these relevant special statutory provisions. In this connection, our attention was invited to four Orders framed u/s. 3 of the Essential Commodities Act pertaining to sugar : 1. Sugar (Control) Order, 1966; 2. Sugar (Packing & Marking) Order, 1970; 3. Sugar (Restriction on Movement) Order, 1970; 4. Levy Sugar Supply (Control) Order, 1979. Cl. 3 of the Sugar (Control) Order, 1966 deals with regulation and production of sugar which enables the Central Government to direct that no sugar can be manufactured from sugarcane except and in accordance with the conditions specified in a licence issued in this behalf. Cl. 4 thereof deals with permissible directions to be issued by the Central Government to the effect that no producer shall sell or agree to sell or otherwise dispose of or deliver or agree to deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory in which it is produced. Cl. 5 enables the Central Government to issue directions to producers and dealers of sugar regarding the production, maintenance of stock, storage, sale grading, packing, marking, weighment, disposal, delivery and distribution of (any kind of sugar). Cl. 6 deals with the power of the Central Government to regulate movement of sugar. Cl. 7 deals with the power to regulate quality of sugar. Cl. 10 deals with the power of the Central Government to call for requisite information from different sources enacted therein. Cl. 11 deals with the power of any officer authorised by the Central Government to inspection, entry, search, sampling, seizure, etc. as enacted therein. The Sugar (Packing and Marking) Order, 1970 provides statutory directions as to the quality of sugar to be packed in each bag. The Sugar (Restriction on Movement) Order, 1970 deals with restrictions on transport of certain types of sugar. The Levy Sugar Supply (Control) Order, 1979 enables the Central Government to issue directions to any producer or recognised dealer to supply levy sugar of such type or grade to such persons or organisation as may be enacted in the Order.\n49. The aforesaid provisions of the various Orders issued u/s. 3 of the Essential Commodities Act clearly indicate that all sale transactions of sugar by factories manufacturing sugar out of the sugarcane, the basic agricultural produce and raw material, are regulated by these provisions. As noted earlier, S. 15 of the Market Act is out of picture qua even these transactions. The sale of sugar manufactured out of sugarcane and fixation of price thereof would also, therefore, go out of the sweep of S. 15(1) & (2) of the Market Act and would be governed wholly by these special provisions of the Control Orders. On the parity of reasons governing the transactions of sale and purchase of sugarcane, transactions of sale of sugar manufactured out of purchased sugarcane by the very same sugar factories functioning in the market area would also be governed by special provisions of the aforesaid special Sugar (Control) Orders and would pro tanto get excluded from the general sweep of the Market Act. In this connection, we may also refer to the main contentions of Shri Rakesh Dwivedi, learned Senior counsel for the State. He submitted that the aforesaid various Control Orders regulating sugar have been issued with the objective of maintaining supply of sugar and ensuring availability of the same. Not only the object is different, but in effect the Control Orders regulate production of sugar, impose levy, determine price of levy sugar, provide for packing in bags in quantities of 100 kgs., provide for transport under a permit issued by the Central Government/State Government when sold under S. 3(2)(f) of Essential Commodities Act, 1955 (levy sugar) and specifications of dealer for supply of levy sugar.\n50. As far as free sugar is concerned, only monthly quotas are fixed. Thus, as far as free sale sugar is concerned, the Central Government does not fix the price and does not determine the person to whom it is to be sold or the manner in which it is to be transported. The various provisions of the Market Act for regulating sale, purchase and storage of free sugar would, therefore, be available and the capacity of market committee to regulate these transactions is not affected by these Orders and to that extent there is no repugnancy between them and the Market Act. It is not possible to agree with this submission for the simple reason that the provisions of Sugar (Control) Orders have not to be read in isolation but will have to be read with the special provisions controlling the production, sale and purchase of sugarcane out of which sugar is manufactured by the very same sugar factories functioning in the market area. They are all integrated transactions and are subject to a well knit statutory scheme of control of these commodities. It is obvious that regulation of sugarcane supply and distribution is not in isolation. The main purpose of such regulation is for ensuring better quality and adequate quantity of sugar manufactured out of sugarcane supplied by sugarcane growers to earmarked sugar factories which manufacture sugar by crushing sugarcane in their factories by resorting to vacuum pan manufacturing process. Therefore, it is the ultimate sale of the manufactured article, namely, sugar by way of levy sugar or in free market that is sought to be controlled by the Control Orders which cannot effectively operate save and except in harmony with the provisions enacted for the control of raw material, namely, the sugarcane as envisaged by the Sugarcane Orders as well as the Sugarcane Act. They together, therefore, provide a complete machinery for controlling the production, sale and purchase not only of the raw material - sugarcane but also finished product sugar and in this background we have to visualise the legislative intent underlying the enactment of the Sugarcane Act on the one hand and the exclusion of S. 15 to such transactions by the delegate of the legislature, namely, the State of Bihar on the other. It is also necessary to visualise that once S. 15 is out of the way for governing the sale and purchase transactions by sugar factories not only the purchase of sugarcane as raw material by them but also the sale of their finished product, namely - sugar is also out of the sweep of S. 15 of the Market Act. Consequently, the entire regulatory machinery and the infrastructural facilities to be made available by the market committees for regulating the sale and purchase of such an agricultural produce would not give any signals and would get totally excluded. SALE OF MOLASSES : This takes us to the consideration of the statutory control of sale of molasses by sugar factories functioning in the market area. It has to be kept in view that molasses is a by-product of the sugar industry and the sale of molasses by the sugar factories is wholly controlled by the statutory provisions contained in the Bihar Molasses (Control) Act, 1947. The preamble to the Act reads as under: An Act to provide for the control of the distribution, supply, storage and price of molasses produced by factories in the State of Bihar.\n51. S. 2(c) of the Molasses Act defines Molasses as under : Molasses means final residual by-product of factories manufacturing sugar from cane or by refining gur, by means of vacuum pans but does not include convertible molasses, which are the final residual by-product of sugar factories operating on the open pan system. S. 3 of the Act provides as under : Submission of returns by occupiers of factories and stockists.- Every owner, manager or occupier of a factory and every stockist shall furnish to the Controller within the time and in the manner specified by the Controller such returns relating to stocks of molasses as the Controller may, by order from time to time, direct. S. 4 of the Act provides that No molasses produced in the State nor any molasses held by the stockists in this State, shall, without the permission of the Controller, be moved by rail, road or river from any place in the State to any other place therein.\n52. As per S. 5 of the Act, a sugar factory cannot even enter into an agreement or contract with any person other than the Government or person licensed by the controller for supply of molasses. All molasses have to be sold by sugar factories in accordance with the directions of the Molasses Controller issued u/s. 6 of the Molasses Act. The price of molasses is regulated by S. 8 of the Act. Section 8A provides that the State Government may impose administrative charges on the sale of released molasses for meeting the cost of establishment for supervision and control over such release. It is thus clear that the sale of molasses is also regulated by the State Government and the cost of such regulation is recovered under the Molasses Act in the form of administrative charges. Section 8C requires every owner occupier and manager of sugar factory to place in a separate fund suitable amount for the purpose of construction and maintenance of adequate facilities for storage of molasses. Section 9C makes detailed provisions relating to storage of molasses and construction of storage tanks by the sugar factories. S. 11 gives overriding effect to the provisions of the Molasses Act over any provision contained in any other Act. S. 13 which is the section conferring the power to make Rules provides for the making of rules for carrying out the purposes of the Act and empowers in particular\na) prescribe the specifications and tests in respect of the purity of molasses;\nb) regulate sale and price of molasses intended for use in distilleries or for other purposes;\nc) prescribe conditions in respect of storage, loading and transport of molasses at factories;\nd) prescribe the forms and returns to be submitted, and the records and books to be maintained, by factories;\ne) prescribe the manner in which molasses produced in factories shall be graded, marketed, packed or stores for sale;\nf) regulate imposition and recovery of permit fee and administrative charges on released molasses;\nff) prescribe the manner in which accounts of funds for regulation of adequate storage facilities in respect of molasses produced in factories shall be maintained and operated;\ng) any other matter which is required to be or which may be prescribed under this Act.\n53. The Bihar Molasses (Control) Rules, 1955 contain detailed provisions in Rule 3 relating to supply of molasses by sugar factories. Reference may be made to clause h of Rule (3), which is in the following terms : Every sugar factory and every stockist shall, on receipt of an order from the Controller and on intimation of the allotment of tank wagons for the transport of molasses, make all necessary arrangements promptly for the haulage and loading of molasses and where the owner, occupier or Manager of a sugar factory or the stockist fails to make such arrangements without sufficient reason, the Excise Officer shall have the power on his behalf, to enter upon the premises, make arrangement for the haulage and loading of molasses by manual labour, if necessary recover the cost incurred thereby from the said owner, occupier as manager of the sugar factory or the stockist.\nRule 10 provides that no molasses can be moved from the premises of a sugar factory except under a pass in Form M.F.6. Rule 11 provides that molasses cannot be moved from the premises of any sugar factory except under a movement order in Form M.F.7 issued by the Controller as provided in the Act and Rules. The aforesaid provisions leave no room for doubt that the sale and purchase of molasses which would be an agricultural produce as defined by S. 2(1)(a) of the Market Act being a by-product resulting from manufacture of sugar by utilising the basic agricultural produce, namely, sugarcane are wholly controlled by the Molasses Control Act enacted by the very same legislature which has enacted the Market Act. It is easy to visualise that the very same legislature which enacted both these provisions was pressed to be alive to the need of having special provisions for regulating the sale and purchase of molasses and that by itself would exclude the need to get these transactions generally controlled and regulated by the sweep of the Market Act as per S. 3 of the said Act. That is precisely the reason for even its delegate, the State of Bihar in its wisdom to exclude the applicability of S. 15 of the Market Act, so far as the sale transactions of molasses by the sugar factories operating in the market area are concerned. The validity of the Bihar Molasses Act, 1947 has been upheld by this Court in the case of SIEL Ltd. and Others vs. Union of India and Others (1998 (7) SCC 26 1998 Indlaw SC 1288). It has been held to be traceable to Entry 33 List III and is having Presidents assent.\n54. It is, therefore, obvious that the Molasses Act laying down a detailed statutory scheme of control of sale and purchase of molasses produced by the sugar factories in the market area will remain within the statutory framework of the aforesaid special statute. The general provisions of the Market Act has, therefore, to give way to the aforesaid special provisions. It was next submitted by learned senior counsel for the State of Bihar that even though the market committee may not be in a position to regulate sale, purchase, storage or processing of molasses not released by the Controller atleast after they were decontrolled by the Central Government in June, 1993 and even when the State Governments have partially decontrolled transactions regarding molasses, such transactions could be regulated under the Market Act. This submission also cannot be countenanced. The reason is obvious. Once the State of Bihar itself has exempted these sale transactions from the operation of S. 15 of the Act, they would be out of sweep of the general provisions of the Market Act and would not statutorily enjoin the market committees to provide any infrastructure for regulating sale of molasses to enable them to bring home the charge of market fee on the sale transactions of molasses as per S. 27 of the Act. As a result of this discussion, the first contention will have to be answered in negative by holding that the provisions of the Market Act cannot apply to the transactions of purchase of sugarcane and sale of sugar and molasses by the sugar mills situated and functioning within the market area of the concerned market committee constituted under the Market Act.\n55. CONTENTION NO. 2 : This takes us to the consideration of the alternative contention canvassed by learned senior counsel for the appellants in support of the appeals. Strictly speaking, this alternative contention does not survive for our consideration, in view of our answer to the first contention. However, as we have heard learned counsel for the parties on this alternative contention, we may deal with the same on merits. It has to be kept in view that market fee levied under the Market Act is a fee and not a tax. The Market Act in so far as it enacts S. 27 levying market fee is referable to Entry 66 of the State List read with Entry 47 of the Concurrent List. Both of them deal with topics of legislation pertaining to fees in respect of the matters enumerated in the respective lists. In the case of Kewal Krishan Puri and Anr. vs. State of Punjab and Anr. etc. etc. (1980 (1) SCC 416 1979 Indlaw SC 222), a Constitution Bench of this Court, while upholding the levy of market fee under the Punjab Agricultural Produce Markets Act, 1961, has made the following pertinent observations in paragraph 23 of the report. Untwalia J., speaking for the Court observed : From a conspectus of the various authorities of this Court we deduce the following principles for satisfying the tests for a valid levy of market fees on the agricultural produce bought or sold by licensees in a notified market area :\n(1) That the amount of fee realised must be earmarked for rendering services to the licensees in the notified market area and a good and substantial portion of it must be shown to be expended for this purpose.\n(2) That the services rendered to the licensees must be in relation to the transaction of purchase or sale of the agricultural produce.\n(3) That while rendering services in the market area for the purposes of facilitating the transactions of purchase and sale with a view to achieve the objects of the marketing legislation it is not necessary to confer the whole of the benefit on the licensees but some special benefits must be conferred on them which have a direct, close and reasonable correlation between the licensees and the transactions.\n(4) That while conferring some special benefits on the licensees it is permissible to render such service in the market which may be in the general interest of all concerned with the transactions taking place in the market.\n(5) That spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is not permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefiting the traders also. Such an indirect and remote benefit to the traders is in no sense a special benefit to them.\n(6) That the element of quid pro quo may not be possible, or even necessary, to be established with arithmetical exactitude but even broadly and reasonably it must be established by the authorities who charge the fees that the amount is being spent for rendering services to those on whom falls the burden of the fee.\n(7) At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services of the kind mentioned above.\n56. It becomes at once clear that before justifying levy of market fee on any transaction the services to be rendered by the market committee must be in connection with the sale and purchase transactions of agricultural produce falling for regulation under the Market Act, when the purchase and sale of agricultural produce like sugarcane, sugar or molasses are not governed by the Market Act, as we have seen while considering contention no.1, there would remain no occasion for the market committee to be statutorily under any obligation to provide any services or infrastructural facilities for covering such transactions so as to be entitled to charge market fee on such transactions. It was vehemently contended by learned senior counsel for the respondents that various types of infrastructural facilities are being made available to sugar factories who are purchasing sugarcane in the market area and selling manufactured sugar and molasses in the very same market area. The following are the various facilities and services highlighted in this connection :\n1) Link road facilities by which market committees were to spend monies for connecting villages in the market area with the main roads for facilitating the movement of agricultural produce including the sugarcane from the farms to the purchase centres of the factories.\n2) Spread of information regarding prices of agricultural produce for information of growers of sugarcane.\n3) Providing mediation facility to enable the growers of sugarcane to get higher price for sugarcane as compared to the minimum prices fixed under the control orders.\n4) Supervision of weighment of sugarcane.\n5) Licensing of weighing inspectors.\n6) Providing for drinking facility and park.\n7) Parking facilities at the purchase centres.\n57. Shri Trivedi, Addl.Solicitor General, in his turn, tried to highlight the concept of link roads being other than approach roads. He submitted that near the factory gate or purchase centres provision of approach roads may be a statutory obligation of the sugar factories. Thus approach roads would connect the purchase centres with the nearby public roads. But so far as link roads are concerned, they are also public roads other than approach roads which connect villages with main roads and all these facilities make possible quicker movement of sugarcane from farms to the purchase centres. This results in supplying better quality of sugarcane for being crushed in the factories so that before such sugarcane dries out it gets crushed resulting in better quality and larger quantity of sugar for the benefit of sugar factories. Strong reliance was placed in this connection on various provisions of S. 30 of the Market Act and it was submitted by learned senior counsel for the respondents that all these benefits are being made available to sugar factories and there is no reason for them to oppose payment of small amounts of market fees after getting these benefits from the market committees. The aforesaid contentions of learned senior counsel for the respondents for salvaging the situation for the market committees though appearing attractive at the first blush, do not survive on a closer scrutiny. The reason is obvious. Only because the sugarcane factories are located in the market area they can be said to be covered by the general sweep of S. 27 of the Market Act as the agricultural produce, namely, sugarcane as well as sugar and molasses can be said to be bought and sold in the market area. But by the fact only of sale and purchase of these commodities in the market area, it cannot be said that such agricultural produce belongs to the category of agricultural produce which is covered by the general sweep of the Act.\n58. In order to attract the charge under Section 27, the concerned agricultural produce on which the market fee is to be levied must be required to be bought and sold in the market area within the jurisdiction of the concerned market committee as per S. 15 of the Market Act which enjoins that no agricultural produce specified in the notification under sub-s. (1) of S. 4 shall be bought or sold by any person within the market area other than the relevant principal market yard or sub-market yards. Thus, on a conjoint reading of Ss. 27 and 15 of the Market Act, it must be held that before any charge of market fee can settle regarding any purchase and sale transactions concerning the agricultural produce, such agricultural produce must have been required to be sold or purchased at the relevant principal market yard or sub-market yards. It is obvious that principal market yard or submarket yards would be situated within the market area, but if any agricultural produce is exempted from the provisions of S. 15(1) of the Act as in the case of sugarcane, sugar and molasses there would remain no occasion for transactions of sale and purchase of these commodities to be carried on only in the principal market yard or sub-market yards and not elsewhere in any other part of market area. It is only those agricultural produce which are required to be bought and sold in the relevant principal market yard or sub-market yards situated within the market area that attract charge of S. 27 of the Act. Once this charge is attracted, the further question whether it is backed by any quid pro quo would survive for consideration. On the facts of the present case, S. 15 as a whole is out of picture for controlling purchase and sale of sugarcane, sugar and molasses by sugar factories operating in the market area, as we have seen earlier, the charge of market fee as envisaged by S. 27 would not get attracted at all for them. Hence the aforesaid list of the infrastructural facilities made available to sugar factories in general with other dealers in agricultural produce attracting S. 15 of the Act would pale into insignificance. Market Committees would not supply adequate quid pro quo for levying market fee as the charge itself does not settle on these transactions by the sugar factories.\n59. It may be, as submitted by learned senior counsel for the respondents, that some sugar factories may have taken benefit of electric lighting and preparation of approach roads by the market committees which might have spent sufficient funds for giving these facilities. Still they would not be a part and parcel of the statutory obligations of the market committees qua such sugar factories and may remain in the domain of S. 72 of the Indian Contract Act and if such benefits are received by the factories they may be liable on the principle of quantum meruit to reimburse or compensate the market committees for the voluntary facilities given by them but they would not support any legal quid pro quo by way of statutory obligation of the market committees for giving facilities to the sugar mills for supporting the levy of market fees on their transactions. Contention no.2 is, therefore, answered in negative not on the ground that the services rendered by the market committee to the appellant sugar factories were not having any adequate quid pro quo but on the ground that they were not statutorily required to be made available to the sugar factories by way of statutory obligation of the market committee to regulate the sale and purchase transactions of sugarcane, sugar and molasses by these sugar factories and also on the ground that the charge u/s. 27 by levying market fee on the aforesaid transactions was not attracted at all on the facts and circumstances of the case, as seen earlier. As a result of our conclusion on the findings of the aforesaid two contentions, the appeals and other Writ Petition in sugar group matters will be required to be allowed and the impugned judgment of the High Court in all these matters will have to be set aside. However, the further question that survives is as to what relief can be given to the appellants and the writ petitioners in this sugar group of matters. It is obvious that during the pendency of these proceedings no interim relief was given to the appellants and the writ petitioners. Therefore, they must have paid the market fee on the concerned transaction all these years. In the common course of events, they would have passed on the burden of market fee on purchasers and the ultimate consumers of sugar and molasses produced by the sugar factories by utilising sugarcane as raw material. Shri Shanti Bhushan, learned senior counsel for the appellants, in this connection, submitted that accepting the principle of unjust enrichment we may reserve liberty to the appellants to show before the authorities whether they have in fact passed on the burden of impugned market fee at the relevant time and if they could show to the satisfaction of the authorities that in fact they have not passed on the burden then they may be treated to be entitled to get refund of all the appropriate amounts of market fee not passed on.\n60. In our view it is not possible to accept this contention as years have rolled by since the impugned market fees have been levied by the different market committees in the State of Bihar. In the normal course of events, no prudent businessman/manufacturer would ever bear the burden of such compulsory fee or tax to be paid from his own pocket. Even otherwise reserving such liberty would create unnecessary complication and may give rise to spate of avoidable litigations in the hierarchy of proceedings. Under these circumstances, keeping in view the peculiar facts and circumstances of these cases, we deem it fit to direct in exercise our powers u/art. 142 of the Constitution of India that the present decision will have only prospective effect. Meaning thereby that after the pronouncement of this judgment all future transactions of purchase of sugarcane by the sugar factories concerned in the market areas as well as the sale of manufactured sugar and molasses produced therefrom by utilising this purchased sugarcane by these factories will not be subjected to the levy of market fee u/s. 27 of the Market Act by the market committees concerned. All past transactions upto the date of this judgment which have suffered the levy of market fee will not be covered by this judgment and the collected market fees on these past transactions prior to the date of this judgement will not be required to be refunded to any of the sugar mills which might have paid these market fees.\n61. However, one rider has to be added to this direction. If any of the market committees has been restrained from recovering market fee from the writ petitioners in the High Court or if any of the writ petitioners in the High Court has, as an appellant before this Court, obtained stay of the payment of market fee, then for the period during which such stay has operated and consequently market fee was not paid on the transactions covered by such stay orders, there will remain no occasion for the market committee concerned to recover such market fee from the concerned sugar mill after the date of this judgment even for such past transactions. In other words, market fees paid in past shall not be refunded. Similarly market fees not collected in past also shall not be collected hereafter. The impugned judgments of the High Court in this group of sugar matters will stand set aside as aforesaid. The Writ Petition directly filed before this Court also will be required to be allowed in aforesaid terms. Before parting with this group of matters, it must be clarified that the present judgment will be applicable in connection with the purchase of sugarcane by the sugar factories as well as the sale of manufactured sugar and molasses by these factories functioning in the areas of market committees concerned and whose transactions are governed by the provisions of the Sugarcane (Control) Order, 1966 as well as the Sugarcane Act of 1981 and also by the relevant provisions of the Sugar Orders and the provisions of Molasses Control Act. Any other transactions of purchase and sale, in principal market yard or sub-market yards, of sugarcane, sugar or molasses by any other licensed dealers not governed by the aforesaid provisions will not be covered by the ratio of this judgment.\n62. WHEAT PRODUCTS - ATTA, MAIDA, SUZI, BRAN ETC. In this group of matters, six flour mills functioning in market areas within the jurisdiction of market committees concerned have brought in challenge the applicability of the Market Act to the transactions of purchase of wheat by these mills and manufacture out of the same different wheat products like atta, maida, suzi, bran, etc. The High Court of judicature at Patna repelled their contentions against the applicability of the Market Act. On grant of special leave to appeal they are before us in these proceedings. Shri Ranjit Kumar, learned counsel appearing for the appellants raised two contentions for our consideration. 1. Under the Industries (Development and Regulation) Act, 1951 (for short I.D.R. Act) in public interest the Union of India has taken over the control of the wheat industry as specified in the First Schedule to the Act and consequently any transaction of purchase and sale of the products of that industry cannot be regulated by the State Act like the Market Act. As a part of the very same contention, it was submitted that Wheat Rolling Flour Mills (Licensing and Control) Order, 1957 and the Bihar Trading Articles (Licenses Unification) Order, 1984 issued u/s. 3 of the Essential Commodities Act, 1955 lay down a complete scheme for regulating purchase and sale of wheat products and hence these transactions cannot be covered by the general sweep of the Market Act. 2. Alternatively, it was contended that wheat may be an agricultural produce, but sale of atta, maida, suzi cannot be treated as agricultural produce. We shall deal with the aforesaid contentions point wise. Point No.1: It is true that the Union Parliament in exercise of its legislative power under Entry 52 of List I of the Seventh Schedule has enacted the I.D.R. Act.\n63. It is also true that flour industry is listed as one of the scheduled industries as item no.27(4) under the caption food processing industries. However, production of wheat as raw material or its sale is not covered by the said Act. Consequently, so far as wheat as agricultural produce is concerned, it is outside the sweep of the I.D.R. Act. However, when flour industry is covered by the said Act, question remains whether sale of flour or any other products out of wheat can be said to be covered by the sweep of the I.D.R. Act. Regulation of sale and purchase of flour as a controlled industry was sought to be emphasised by Shri Ranjit Kumar by inviting our attention to Section 18G of the I.D.R. Act. Section 18G sub-s. (1) reads as follows : 18G. Power to control, supply, distribution, price, etc., of certain articles. - (1) The Central Government, so far as it appears to it to be necessary or expedient for securing the equitable distribution and availability at fair prices of any article or class of articles relatable to any scheduled industry, may, notwithstanding anything contained in any other provision of this Act, by notified order, provide for regulating the supply and distribution thereof and trade and commerce therein.\nIt is obvious that unless the Central Government in exercise of its statutory power under Section 18G promulgates any statutory order covering this field, it cannot be said that mere existence of a statutory provision for entrustment of such power by itself would result into regulation of purchase and sale of flour even if it is a scheduled industry. Shri Ranjit Kumar fairly stated that no such order has been promulgated by the Central Government for regulating the purchase and sale of flour in the market area. According to him, however, the mere existence of such a statutory provision in the Act enabling the Central Government to issue such orders would be sufficient to occupy the filed contemplated by this provision. In support of this contention, he invited our attention to a decision of this Court in the case of The Hingir-Rampur Coal Co., Ltd. and Others vs. The State of Orissa and Others (1961 (2) SCR 537 1960 Indlaw SC 452). At page 558 of the report Gajendragadkar J., speaking for the Court, made the following pertinent observations : .\n64. Entry 54 in List I dealing with Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. It was contended by Shri Ranjit Kumar relying on these observations that mere declaration under the I.D.R. Act is enough to exclude the jurisdiction of the State Legislature in connection with such a declared industry. It is difficult to appreciate this contention. It has to be kept in view that any legislation in exercise of legislative power under Entry 54 of List I would enable the Parliament to regulate mines and mineral development by taking them under the control of the Union in public interest. Thus all aspects of mining industry would be covered by the general sweep of such a declaration. However, so far as the I.D.R. Act is concerned, it is enacted under Entry 52 of the First Schedule which deals with industries in general. Simultaneously in the State List itself there is Entry 24 which deals with industries subject to the provisions of Entries 7 and 52 of List I. Consequently, the products of such controlled industries would necessarily not be governed by the sweep of the general legislation pertaining to such industries as per Entry 52 of the Union List. The aforesaid Constitution Bench judgment was not concerned with any State Legislation enacted under Entry 24. On the contrary, it dealt with legislation of the Union Parliament under Entry 54 of the Union List read with Entry 23 of the State List. The scheme of the aforesaid legislative entries is entirely different from the scheme of Entry 52 of List I read with Entry 24 of List II with which we are concerned. On a conjoint reading of the aforesaid two entries, therefore, the ratio of the decision of the Constitution Bench in the aforesaid case cannot be effectively pressed in service by Shri Ranjit Kumar for supporting his contention.\n65. In this connection, we may usefully refer to a decision of this Court in SIEL Ltd. and Others 1998 Indlaw SC 1288 (supra) wherein one of us, Sujata V. Manohar, J was a member. It has rightly distinguished the ratio of the Constitution Bench decision in the case of The Hingir-Rampur Coal Co., Ltd. and Others 1960 Indlaw SC 452 (supra) and taken the view that merely because an industry is controlled by a declaration u/s. 2 of the I.D.R. Act enacted by Entry 52 of the Union List, the State Legislature would not be denied of its powers to regulate the products of such an industry by exercise of its legislative powers under Entry 24 of the State List. In that case the question was whether U.P. Sheera Niyantran Adhiniyam, 1964 could be said to be repugnant to the Molasses Control Order issued by the Central Government under Section 18-G of the I.D.R. Act imposing restrictions on the sale of molasses and fixing the maximum price of molasses. Answering the question in negative, it was held that the term industry in Entry 24 would not take within its ambit trade and commerce or production, supply and distribution of goods which are within the province of Entries 26 and 27 of List II. Similarly, Entry 52 in List I which deals with industry also would not cover trade and commerce in, or production, supply and distribution of, the products of those industries which fall under Entry 52 of List I. For the industries falling in Entry 52 of List I, these subjects are carved out and expressly put in Entry 33 of List III.\n66. It was also held that since the Molasses (Control) Order of 1961 passed by the Central Government in exercise of powers conferred by Section 18-G was not extended at any point of time to the State of U.P. or the State of Bihar, the question of repugnancy between the Molasses Control Order, 1961 and the U.P. Sheera Niyantran Adhiniyam, 1964 does not arise. Consequently, it must be held that in the absence of statutory order promulgated under Section 18G of the I.D.R. Act, it cannot be said that the field for regulation of sale and purchase of products of flour industry like atta, maida, suzi, bran etc. would remain outside the domain of the State Legislature. Shri Ranjit Kumar then placed reliance on the statutory orders framed u/s. 3 of the Essential Commodities Act, 1955. So far as the Wheat Rolling Flour Mills (Licensing and Control) Order, 1957 is concerned, reliance was placed by him on Cls. 2 and 10 of the definition clause. These clauses clearly indicated that the said order was not concerned with agriculturists nor was the order concerned with the pricing, purchase and sale of wheat or wheat products. Consequently, the said order cannot be said to have occupied the field so far as these topics are concerned. He then invited our attention to the Bihar Trading Articles (Licenses Unification) Order, 1984. Cls. 2 (c) (g) (h) and (j) as well as Cls. 15 and 18 on which reliance was placed were found not to be of any assistance to him for the simple reason that under that Order dealers of foodgrains like wheat had to be licensed and their activities had to be supervised. This order had also nothing to do with fixation of prices and regulating the purchase and sale of wheat and wheat products. Consequently, the first contention canvassed by Shri Ranjit Kumar cannot be sustained and is accordingly rejected.\n67. POINT NO. 2: So far as the alternative contention is concerned, he submitted that even though wheat is an agricultural produce, atta, maida, suzi manufactured out of the same cannot be said to be agricultural produce as it is a produce of the factory and not of an agriculturist. This contention of Shri Ranjit Kumar also cannot be sustained for the simple reason that agricultural produce as defined by S. 2(1), as already noted earlier, would include all agricultural produce whether processed, non-processed or manufactured out of any primary agricultural produce. Wheat is a produce of agriculture, therefore, any product resulting after processing such basic raw material or which results after process of manufacture is carried on qua such basic raw material would remain agricultural produce. Shri Ranjit Kumar fairly stated that he has not challenged the vires of S. 2 (1)(a) but in his submission items 14 to 16 as found in the Schedule to the Act under the caption Cereals are wrongly included as agricultural produce as they are not produce of agriculture. Moment the artificial definition of agricultural produce as aforesaid holds the field, as a logical corollary these three disputed items would squarely get covered by the sweep of the term agricultural produce and hence their inclusion in the schedule enacted under S. 2(1)(a) as types of cereals cannot be found fault with. These were the only contentions canvassed by Shri Ranjit Kumar in support of his appeals. As they fail the inevitable result is that all the civil appeals would be liable to be dismissed.\n68. VEGETABLE OILS : Civil Appeal No.1427 of 1979 moved by M/s Rohtas Industries Ltd., which is now under liquidation represented through its liquidator raises similar contention as canvassed by Shri Ranjit Kumar in support of the appeals moved by flour mills. All vegetable oils are treated to be agricultural produce as per serial no.4 of the schedule framed under S. 2(1)(a) of the Market Act. In view of the general sweep of the said definition, oil manufactured by the oil mills functioning within the areas of the Market Committees concerned by crushing oil-seeds which are undisputedly agricultural produce and subjecting them to manufacturing process cannot be said to be outside the sweep of the regulatory provisions of the Market Act. Reliance placed in support of this appeal on the Vegetable Oil Products Control Order, 1947 the Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order, 1977, the Vegetable Oil Product Producers (Regulation of Refined Oil Manufacture) Order, 1973, all framed u/s. 3 of the Essential Commodities Act, 1955, also cannot be of any avail to the appellant industries for the simple reason that none of these orders deals with the topic of regulation of prices and sale and purchase of vegetable oil products. Consequently, the field is wide open for the legislation of the State, namely, the Market Act for its applicability to the transactions of sale and purchase of vegetable oil products in the market areas concerned. This civil appeal, therefore, also is liable to fail, falling in line with the appeals concerning wheat and wheat products. Civil Appeal Nos. 4500-05 of 1992 and Civil Appeal arising out of SLP (C) No.9684 of 1992 raise similar contentions in connection with vegetable edible oils on the very same reasoning, as aforesaid. These appeals are liable to fail.\n69. RICE MILLING INDUSTRIES The appeals arising from SLP (Civil) Nos.3159-60 of 1994 are moved by Rice Milling Industries operating in the market area of the concerned market committees. Learned senior counsel for the appellant mills challenged notices issued to them by the Agricultural Produce Market Committees concerned requiring them to shift their trade to principal market yards. It was contended that on account of the Rice Milling Industry (Regulation) Act, 1958 which is a Central Act, the field for regulation of purchase and sale of products of rice milling industries would be fully occupied by the Central Act and if the State Act like the Market Act seeks to encroach upon the said field, it would become repugnant to the Central Act. A close look at the relevant provisions of the said Act shows that it does not seek to cover the aforesaid field. Sub-s. (1) of S. 6 of the said Act reads as follows :Any owner of an existing rice mill or of a rice mill in respect of which a permit has been granted u/s. 5 may make an application to the licensing officer for the grant of a licence for carrying on rice-milling operation in that rice mill. S. 8 deals with restrictions statutorily imposed on rice mills. S. 9 empowers the licensing officer or any person authorised by the Central Government to inspect the working of the rice mill. The aforesaid relevant provisions of the Act leaves no room for doubt that the working of the rice milling industries was sought to be regulated by the said Act and it has nothing to do with the regulation of purchase and sale of products of such mills.\nIt was then submitted that the appellant rice mills import paddy from other State territories which are outside the notified market area falling under the Market Act and such imported paddy is processed and after manufacturing activities qua them, rice is manufactured, hence such activity cannot be governed by the Market Act. It is obvious that if the appellant rice mills import paddy already purchased from outside the market area then on such transactions of outside purchase and import of paddy in the market area, there would remain no occasion for the market committees concerned to subject such transactions to the regulating machinery of the Market Act or to demand any market fee thereof. This was fairly conceded by learned senior counsel for the respondents. He, however, added that if these rice milling industries located and functioning in the market area purchase within the market area, raw material paddy, whether grown in the market area concerned or outside, then such purchases within the market area will attract the regulatory provisions of the Market Act. There cannot be any dispute on this aspect as paddy obviously is an agricultural produce being item no.1 in the category of Cereals as found in Schedule to the Act.\n70. So far as the manufactured rice out of such paddy is concerned, once manufacturing takes place within the market area, it would get squarely covered by the wide sweep of definition of S. 2(1)(a), as we have seen earlier. Even apart from that, rice is mentioned as a separate item no.2 in the category of Cereals in the Schedule of the Market Act. It cannot be disputed that rice manufactured out of basic agricultural produce paddy would also remain agricultural produce falling within the sweep of the Act. So far as the regulation of sale and purchase of rice within the market area is concerned, S. 15 of the Act applies to the transactions of licensed dealers dealing with such agricultural produce in the market area. Hence the entire machinery of the Market Act will be applicable to regulate transactions of sale and purchase of paddy by the rice mills within the market area as well as sale of rice by them within that area as all these transactions will have to take place in the market yard or sub-market yards as per S. 15 of the Act. However, one grievance voiced by learned senior counsel for the appellants deserved to be noted before parting with the discussion in these appeals. He submitted that there is no power and authority in the market committee to insist that the location of the rice milling industries also should be changed and must be shifted to the market yard. In this connection, our attention was invited to the notice  as a specimen notice. In the said notice addressed to Janta Rice & Flour Mills issued by the advocate acting on behalf of the Secretary, Agricultural Produce Market Committee, Chakulia, in the last but one paragraph, the addressee was requested to shift the establishment of business in the main market yard at Dighi of the Agricultural Produce Market Committee, Chakulia within 7 days. It was submitted that this part of the direction is totally without jurisdiction as no market committee can compel the shifting of the business premises of the rice milling industries to any particular market yard as S. 15 of the Act only requires the sale and purchase transactions regarding the agricultural produce to be carried on in the market yard or sub-market yards. To that extent, learned senior counsel for the appellant is right.\n71. The statutory mandate of S. 15 does not go beyond the regulation of transactions regarding purchase and sale of agricultural produce and that can be required to be effected only at the relevant principal market yard or sub-market yard or yards. None of the provisions of the Market Act would entitle the market committee to insist on shifting of the business premises of any milling company or factory processing agricultural produce located within the market area to any particular market yard or sub-market yards. Learned senior counsel for the respondents Shri Dwivedi fairly conceded that the aforesaid direction contained in the impugned notice as worded is not correct and can be read down to mean only the shifting of the sale and purchase transactions concerning paddy and rice to the relevant market yard or sub-market yards. These directions are accordingly read down. The said notice when so read down would remain well sustained. In other words, the appellants will not be required to shift the location of the rice mills to principal market yard or sub-market yards if otherwise they are not already so located but are functioning at any place within the market area. However, their sale and purchase transactions of paddy and rice will, of course, be required to be carried on only in market yard or sub-market yards concerned as mandated by S. 15 of the Market Act. Subject to these clarifications and modifications in the directions contained in the impugned notice, these appeals are liable to fail.\n72. MILK AND MILK PRODUCTS This takes us to the consideration of Civil Appeal No.1880 of 1988. The appellant in this appeal is an incorporated company with its Registered Office and factory at Bombay. It claims to produce baby food under the trade names LACTODEX and RAPTAKOS S.I.F. (Special infant food). Its products are sold all over the country including Bihar State. It has its Central Office at Patna. Being located outside Bihar it purchases its raw materials from the territories outside Bihar. Out of the raw materials procured from outside, the aforesaid two types of infant food are manufactured outside Bihar but some of the products of the company are received in Bihar State packed in sealed tins. The appellant company earlier had two branches being sales offices, one at Patna and other at Muzaffarpur.\nThe latter branch is since closed. Both these branches fall within the jurisdiction of the Agricultural Produce Market Committees at Patna and Muzaffarpur. According to the appellant though its activities were not covered by the sweep of the Market Act, it was required to obtain licences under the Act for operating at both these places in the market areas. The appellant contended in the Writ Petition before the High Court that the direction of the marketing authorities requiring the appellant to take licences under the Market Act was clearly ultra vires and illegal for the simple reason that the products sold by it within the market area were not agricultural produce at all. Therefore, they were not governed by the sweep of the Act. The High Court in the impugned judgment negated this contention and held that both these articles sold in packed tins were in substance milk products and, therefore, agricultural produce as defined by S. 2(1)(a).\n73. Learned counsel appearing for the appellant vehemently submitted that before the aforesaid two products can be subjected to the regulatory procedure of the Market Act, it must be shown by the respondents that they are agricultural produce. He invited our attention to S. 3 of the Act and submitted that the very first step of the applicability of the Act is the declaration of intention by the State Government for regulating the purchase, sale, storage and processing of agricultural produce as mentioned in the notification. That the said term agricultural produce as defined by S. 2(1)(a) clearly indicates that the agricultural produce which is to be covered by the sweep of the Act has to be one which should be specified in the Schedule. When we turn to the Schedule of the Act framed as per S. 2(1)(a), we find one of the animal husbandry products at item VIII, sub-item 20 as milk except liquid milk. Thus any product consisting of solidified milk, like milk powder, is contemplated by the said item. It was submitted that in the entire Schedule no where we find any mention of baby food which may be a substitute for milk or solidified milk. It was, therefore, contended that the appellant which manufactures and sells special infant foods like Lactodex and \"Raptakos\" cannot be required to take any licence under the Market Act. Refuting this contention, learned senior counsel for the respondents submitted that as noted by the High Court the aforesaid two products manufactured and sold by the appellant do contain as base material \"milk\" in solidified form. He invited our attention to the details submitted by the appellant before the High Court and as noted by the High Court in its judgment in connection with the ingredients and constituents of these two products.\n\"LACTODEX\"\nPer 100 ml. When reconstituted. 6 g. : 45 ml. Protein 1.9 g. Carbohydrate 9.6 g. Milk fat 0.9 g. Minerals 0.5 g. Vitamin A 265 I.U. Vitamin B6 40 mcg. Including that derived from milk powder Vitamin D 40 I.U. Calories 54\nRAPTAKOS S.I.F.\nPer 100 ml. When reconstituted 4.5 g. : 30 ml. Protein 1.8 g. Fats 3.0 g. Carbohydrates 9.6 g. Minerals (Ash) 0.4 g. Iron 0.6 g. Vitamin A 225 I.U. Vitamin D 60 I.U. Vitamin E 1.3 I.U. Vitamin B1 0.07 mg. Vitamin B2 0.11 mg. Nicotinamide 0.9 mg. Vitamin B6 0.04 mg. Vitamin B12 0.15 mg. Vitamin C 0.5 mg. Calories 73 mg.\n74. Placing reliance on these ingredients, it was submitted that per 100 milligrams of Lactodex milk fat content is 0.9 gms and that other minerals and vitamins may also include milk powder. Similarly, Raptakos (Special infant food) also contains proteins and fats. He also contended that even milk which is a complete food may contain vitamins, therefore, it cannot be said that these two products are not milk products or products containing some ingredients of milk. It is difficult to accept this contention for the simple reason that the aforesaid Schedule at sub-item no.20 captioned under the title \"Animal Husbandry Products\" refers to milk except liquid milk. By no stretch of imagination, tinned baby food containing various ingredients which may include some milk fats or proteins though in powder form can be said to be milk powder simpliciter or whole milk not in liquid form. It is also pertinent to note that there is no item of milk products in the Schedule to the Act under the caption \"Animal Husbandry Products\".\nIn this connection, it is profitable to contradistinguish this entry in the Schedule with items 14,15 and 16 under the caption \"Cereals\" in the very same Schedule. In the listed items under the caption \"Cereals\", we find \"Wheat\" separately mentioned at item no.3 as compared to Wheat Atta, Suzi and Maida separately mentioned at items 14,15 and 16. This shows that basic agricultural produce - \"wheat\" is treated as a separate agricultural produce as compared to its own products manufactured out of wheat, namely, atta, suzi and maida. Those products of the concerned basic agricultural produce are separately mentioned as \"agricultural produce\" in the Schedule so far as \"cereals\" are concerned. But similar is not the scheme in connection with milk. Milk products like baby foods are not separately mentioned. Under the very caption \"Animal Husbandry Products\", Butter and Ghee are separately mentioned as items 7 & 8 which are wholly manufactured out of milk. It, therefore, becomes clear that save and except butter and ghee no other milk product is sought to be covered by the sweep of the Act as \"Animal Husbandry Products\" and the basic Animal Husbandry Produce like \"milk\" only in solid form is sought to be covered by a separate solitary item no.20 as one of the \"Animal Husbandry Products\".\n75. Therefore, any other manufactured product like the present ones, utilising same ingredients of milk powder as one of the ingredients but which are processed by addition of all other extra items with the result that finished products like baby foods emerge as manufactured items for serving as substitute for milk to be fed to infants who cannot digest liquid milk or solidified milk as such, cannot be treated to be \"agricultural produce\" as part and parcel of listed \"Animal Husbandry Products\" mentioned in the Schedule to the Act. Learned senior counsel for the appellant in support of his contentions tried to rely upon specimen copies of printed material affixed to the sealed tins of these manufactured commodities, \"Lactodex\" and \"Raptakos\", which, according to him, are substitutes for mother's milk and are to be used to feed infant babies who cannot take milk in its natural form. Learned senior counsel for the respondents tried to repel this submission by contending that this type of printed material was not produced before the High Court. Be that as it may, the undisputed fact remains that these two special infant foods are meant for infant babies who are to be fed by mixing this baby food powder with water to make it a paste as a substitute for mother's milk. In the light of the express provisions concerning the relevant items of the Schedule to the Act to which we have referred, it has to be held that on the material before the High Court in connection with the ingredients of the aforesaid two products of the appellant, it could not be effectively shown by the respondents beyond any doubt that these two products also were \"agricultural produce\" being Animal Husbandry Products of \"milk\" in a non-liquid form. Consequently, there was no occasion for the respondent authorities to insist that the appellant for the sale of the aforesaid two products within the market area governed by the Market Act in the State of Bihar was required to take any licence under that Act. It is not the case of the appellant that any market fee was required to be charged from him by the market committee. The only grievance made was that the appellant was required to take licence under the Market Act. Hence the question of refund of any market fee would not survive for consideration in the present case. This appeal will have to be allowed and the Writ Petition filed by the appellant in the High Court also consequently will have to be allowed by quashing the impugned notice calling upon the appellant to take licences under the Market Act.\n76. TEA MATTERS In the appeal filed by M/s. Lipton Tea (India) Ltd., the appellant company has brought in challenge the order of the High Court of judicature at Patna in Writ Petition No.1027 of 1977 which was disposed of along with other cognate matters by a common judgment. The appellant had contended before the High Court that the Market Act cannot apply to the transaction of manufactured blended tea sold in packed tins and packets by it in the State of Bihar, consisting of areas of different market committees. According to the appellant, the object of the Market Act was to provide for better regulation of buying and selling of agricultural produce. It was for the benefit of the agriculturists by providing them a market assuring a reasonable price of their products and also eliminating unhealthy competition and loss due to malpractices prevailing in the market. That the appellant was neither an agriculturist nor did it purchase any article from any agriculturist in the Bihar State. That it purchased tea in auction under the Tea Act held at various notified centres in other States outside the Bihar territory. That the purchased tea was blended at appellant's factories which were also situated outside Bihar. Only after the purchased tea had undergone manufacturing process in appellant's tea factories, after blending and preparation of appropriate final product packed in tins and other receptacles, this marketable commodity \"tea\" consisting of red label, green label tea etc. was being brought for sale within the territories of the State of Bihar.\nHence, there was no occasion for the market committees to regulate the sale and purchase of such tea by the appellant manufactured outside the State of Bihar. It was also contended that the Tea Act, which is the Central Act, fully occupied the field of regulation of sale of such tea by the appellant. In view of the special machinery provided under the Tea Act, the general sweep of the Market Act could not be made applicable to the appellant's sale transactions of manufactured tea within the State of Bihar. It was lastly contended that when the appellant was selling its manufactured tea in packed condition in the market area through its stockists, no benefits of infrastructural facilities were required to be furnished by the market committee concerned and, therefore, insistence on the part of the market committee, that the appellant's stockists should sell packed tea only in the market yard or sub-market yards was totally unauthorised and in fact amounted to imposition of sales tax on the sale transactions of tea and could not remain in the realm of genuine market fee. These contentions were repelled by the High Court and it was also held that any manufactured product out of the basic agricultural produce, namely, tea leaves, would be covered by the Act and as the manufactured items in packed conditions out of the basic agricultural produce - \"tea\" were being sold in the market area, the machinery of the Act was applicable to cover these transactions.\n77. Accordingly, the Writ Petition was dismissed. Hence this appeal by special leave. The learned senior counsel for the appellant Shri Shanti Bhushan vehemently submitted that the very purpose of the Market Act is not to regulate the sale of tea manufactured by big tea manufacturing companies like the appellant whose factories are situated outside the State of Bihar. They purchase tea leaves in auction under the Tea Act held at different centres outside the State of Bihar and manufacture after proper blending tea by packing it in suitable packings having labels showing different qualities of tea like green label tea, red label tea etc. That because the appellant imports manufactured tea only for the purpose of sale in Bihar markets, it cannot be said that the machinery of the Market Act which is essentially meant to regulate the sale and purchase of agricultural produce, gets attracted. That the Market Act is, in substance, meant to cover agricultural produce which are first grown in the market area and then sold within the same area. It was also contended that tea was not one of the scheduled items earlier covered by the Act enacted as early as in 1960. That only after 16 years in 1976, tea was added as one of the items in the Schedule to the Act under the caption \"Miscellaneous item No. XII\" as sub item 30 being Tea (leaf and dust). It was submitted that this addition to the Schedule was made by the State of Bihar in exercise of its power under S. 39 of the Act which confers power on the State Government by notification to add any of the items to be treated as \"agricultural produce\" for being specified in the Schedule. That this addition was made after the basic notification u/s. 3 of the Act was issued declaring the intention of the State to regulate the purchase, sale, storage and process of agricultural produce in such areas as may be specified in the notification. This basic notification which was followed by the procedure of inviting objections and suggestions had culminated into declaration of market area u/s. 4.\nThat initially as the item of tea was not in the Schedule, it was obviously not sought to be subjected to the regulation under the Act. Consequently, its purchase, sale, storage and process were obviously not intended to be covered by the Act. But when tea was added as an item in the Schedule in 1976 the procedure contemplated by S. 3 was obviously not undergone and no objections were invited. S. 4 (a) of the Act which was inserted by way of clarification in 1993 also made it clear that the provisions of Ss. 3 and 4 shall not apply to the exercise of power by the State Government under S. 39 to amend the Schedule by addition of any item of agricultural produce not specified therein. In the light of the aforesaid statutory scheme, it was vehemently submitted by Shri Shanti Bhushan, learned senior counsel appearing for the appellant, that this insertion of tea as an added item in the Schedule was ex-facie unauthorised and a result of total nonapplication of mind on the part of the State and it is this exercise under S. 39 of the Act by the State authorities that was challenged in the Writ Petition. In support of this challenge, Shri Shanti Bhushan pressed in service the following three contentions :\n78. CONTENTION NO.1: The very scheme and purpose underlying the enactment of the Market Act shows that only those agricultural produce which are grown within the market area and whose sale in the first instance is to be regulated and also the subsequent sale of any manufactured item out of such basic agricultural produce raw material taking place within the market area are required to be regulated by the Act so that illiterate and ignorant agriculturists who would, otherwise, suffer at the hands of middlemen and may not get adequate price for their product and due compensation for the toil undertaken by them in producing these agricultural commodities, may get adequate return for their products. The benevolent provisions of the regulatory scheme of the Act are essential to protect the agriculturists from exploitation of middlemen. In this connection, our attention was drawn to the salient observations highlighting the basic purpose for enactment of such Market Acts as laid down by the Constitution Bench of this Court in M.C.V.S. Arunachala Nadar case (supra). Shri Shanti Bhushan submitted that the large scale manufacturers like Lipton Tea (India) Ltd. who manufacture tea outside the State in their sophisticated factories having latest machinery are not illiterate agriculturist producers of agriculture goods and commodities in their fields and do not require protection under the Act. That as these salient features of the Act are not kept in view by the State Authorities while inserting entry of tea in the Schedule, the said Act on the part of the State authorities was clearly ultra vires and incompetent.\nCONTENTION NO. 2: In any case, as the purchase and sale of tea were governed by the comprehensive provisions of the Central Act, namely, the Tea Act, 1953, the said Act would wholly govern transactions of purchase and sale of tea by the appellant and to that extent the Market Act would stand superseded or at least the statutory intention of regulating the purchase, sale, storage and processing of tea as per the provisions of S. 3 of the Market Act would stand completely negated. Hence, on that ground also the insertion of this item in the Schedule would remain unauthorised and consequently the insistence on the part of the authorities that the sale transactions should be carried on only within the market yard or sub-market yard was clearly illegal and violative of Art. 19 of the Constitution of India.\n79. CONTENTION NO. 3: It was lastly contended by Shri Shanti Bhushan that no quid pro quo existed between the demand for market fee by the market committees and the sale transactions effected by appellants selling agents so far as tea in packed tins was concerned. No infrastructural facilities were available for or required to be supplied to the sellers of such tea. Learned senior counsel for the respondents, on the other hand, tried to salvage the situation by submitting that even though the Tea Act may control the sale and purchase of tea which is a highly monopolistic and export earning commodity, once the blended tea in deliverable state duly packed in tins and other packages by the appellant tea company enters the Bihar markets for sale, it cannot be said that the sale of this commodity cannot be treated to be sale of agricultural produce by the appellant within the market area in the State of Bihar as agricultural produce defined by S. 2(1)(a), would cover not only the purchase and sale of agricultural produce in its raw form but also in its processed and manufactured form as per the wide sweep of the said definition. He submitted that it cannot be disputed that tea in its raw form is an agricultural produce because tea leaves are grown in tea gardens and then they are plucked and processed in tea factories and after blending the manufactured tea in deliverable state becomes available to be sold in wholesale markets and then in the retail markets. That even though the appellant's factory manufacturing the blended tea may be outside the State of Bihar, the moment the blended tea in packed form is sold in the State of Bihar in the market areas concerned, it cannot be said that the provisions of the Market Act would not apply to such sale transactions. On a conjoint reading of S. 2(1)(a) and the Schedule under Miscellaneous item XII sub-item 30, therefore, it has to be held that the Market Act would squarely get attracted to regulate the sale of such produce of tea by the appellant in the Bihar markets. So far as the Tea Act is concerned, it is submitted that it only regulates the sale of plucked tea from the tea gardens and provides machinery for sale by auction of such tea at the relevant centres and even in such auction when the appellant purchases these roasted tea leaves, it cannot be said that the Tea Act would cover any further transactions of manufactured tea out of the purchased tea leaves by auction purchasers like the appellant at its factories situated outside the Bihar State. That auction purchased tea leaves are processed by the appellant and blending work is done thereafter.\n80. That what is relevant for the applicability of the Market Act is the fact that this manufactured tea packed in suitable packets and tins is brought for sale within the market area in the Bihar State and these are the transactions of sale of manufactured tea out of the basic agricultural produce tea leaves that would attract the sweep of the Market Act, notwithstanding the provisions of the Tea Act. That once the Market Act applies to such sale transactions, the entire infrastructural facilities would be available to the appellant as these sales have to take place in the market yard or sub-market yards as required by S. 15 of the Act. Once the appellant gets the benefit of this infrastructure, it cannot be said that no sufficient quid pro quo is made available under the Act by the market committees concerned to justify them to levy the market fee from the buyers of tea. That so far as the appellant is concerned, there is no burden of paying market fee as a seller of manufactured tea. The burden will be borne by the buyers who are not making any grievance in this connection. In the light of the aforesaid contentions, the following points arise for our consideration :1. Whether the basic agricultural produce i.e. \"tea leaves\" which is subjected to manufacturing process outside the Bihar State and is imported and sold in manufactured condition as packed tea within the Bihar State in the market areas concerned, attracts the provisions of the Market Act for regulating such transactions of sale. 2. Whether the Tea Act of 1953 and the relevant orders promulgated thereunder fully occupy the field regarding regulation of purchase and sale of tea and, consequently, the Market Act, being a general Act, would get excluded for regulating the transactions of sale of manufactured tea in Bihar State and 3.\n81. Whether there is adequate quid pro quo supporting the levy of market fee on such transactions of sale of manufactured and packed blended tea in markets governed by the Market Act. We will now deal with the aforesaid three points in the same sequence in which they were pressed for consideration. POINT NO.1: At first blush, learned senior counsel for the appellant Shri Shanti Bhushan appeared to be on a firm footing when he submitted that the legislative intention underlying the enactment of the Market Act was to protect illiterate and unwary agriculturist from middlemen so that he may not be exploited by them and may get appropriate price for his basic agricultural produce. But on a closer scrutiny, the said contention does not appear to be well sustained. S. 2(1)(a) of the Market Act, as seen earlier, includes in the definition of agricultural produce not only the primary produce grown in the field but also covers all processed or non-processed, manufactured or nonmanufactured agricultural produce as specified in the Schedule. In the light of the aforesaid wide sweep of this definition, it cannot be said that tea leaves which are produced in tea gardens being primary agricultural produce would cease to be agricultural produce once they got processed. After plucked tea leaves are processed by roasting them and then by subjecting them to further process of blending and ultimately packing them in suitable packets they still remain all the same agricultural produce so manufactured out of the basic agricultural raw material \"tea leaves\". It is also not in dispute that Tea (leaf and dust) is a Scheduled item. Once that is so, sale of manufactured tea in packed condition within the market area would squarely attract the charge u/s. 27 of the Act which, as noted earlier, is widely worded. The moment the agricultural produce as defined by S. 2(1)(a), is bought or sold in the market area, S. 27 would get attracted to cover such transaction.\n82. It is also pertinent to note that S. 15 sub-s. (1) of the Act is applicable in the present case to cover such transactions of sale of packed tea within the market areas of the concerned market committees governed by the Act. Save and except such quantity as may be prescribed for retail sale or personal consumption to be outside the sweep of S. 15(1) of the Act, rest of these sale transactions regarding manufactured agricultural produce would remain governed by the sweep of the Act. On a conjoint reading of S. 2(1)(a) and S. 15 and the relevant entry in the Schedule, there is no escape from the conclusion that whether the manufactured agricultural produce has undergone manufacturing process within the market area or not or whether such agricultural produce in its raw form is grown in the market area or outside or whether the processed \"agricultural produce\" is imported only for sale within the market area, the applicability of the Act cannot be said to be ruled out to cover all these types of sale transactions. The question posed by Shri Shanti Bhushan learned senior counsel appearing for the appellant for our consideration is no longer res integra. A Constitution Bench of this Court in the case of Ram Chandra Kailash Kumar and Company and Others vs. State of U.P. and Another etc. etc. (1980 Suppl. SCC 27 1980 Indlaw SC 131), speaking through Untwalia J., had to consider the question of imposition of market fee under the Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 on transactions of purchase and sale of agricultural produce in the market area. While considering this question, various contentions raised by traders operating in the agricultural market in U.P. were listed in para 9 of the report. Contentions no.9 and 23 listed in para 9 of the report are relevant for our purpose. Contention no.9 reads as under : \"No market fee could be levied on goods not produced within the limits of a particular market area and if produced outside and brought in such area.\"\n83. Contention no.23 reads as under : \"Fee can be charged only on those transactions in which the seller is producer and not on any other transaction.\"\nRepelling these contentions, the Constitution Bench held that market fee could be levied on transactions of sale of goods even though such goods are produced outside the State of Uttar Pradesh or outside the market area of that particular market committee, provided the transactions of sale take place within the limits of that market area. It was also held that, on the other hand, there was no provision in the Act or the Rules to limit the operation of the law in a particular market area only in respect of the agricultural produce produced in that area. So far as Contention no.23 was concerned, approving the Patna view it was held that in the U.P. Act even traders under certain circumstances had been made liable to pay such fee. Similarly, the argument that the market fee can be charged only on those transactions in which the seller is the producer of agricultural produce and not on any other transaction, was also found devoid of any substance by the Constitution Bench. In view of the aforesaid pronouncement of the Constitution Bench, therefore, it must be held that even if an agricultural produce initially is not grown in the market area and it is brought in manufactured form within the market area for sale, such sale transaction in connection with such a produce would be covered by the sweep of the Market Act. The same view was taken by two later judgments of this Court. In the case of Rameshchandra Kachardas Porwal and Others vs. State of Maharashtra and Others etc. etc. (1981 (2) SCC 722 1981 Indlaw SC 423), wherein a three Judge Bench of this Court, speaking through Chinnappa Reddy, J. amongst others, had to consider the question whether change of location of market under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 could be held to be legally justified. It was held that the power to establish principal market or a subsidiary market carried with it the power to \"dis-establish\" such market and that power to establish principal or sub-market yard could be exercised from time to time.\n84. In para 11 of the report the further contention was examined as to whether agricultural produce which is imported into the market area from outside the market would be covered by the sweep of the Market Act. While answering this contention in affirmative, it was held that even if agricultural produce is imported into the market area and subjected to sale and purchase thereof in the market area, the provisions of the Market Act would get attracted. The very same contention which learned senior counsel Shri Shanti Bhushan urged for our consideration that the Act is enacted for the interest of agriculturists only and for their sole benefit was repelled. For coming to that conclusion reliance was placed on a decision of the Constitution Bench of this Court in the case of Rameshchandra Kachardas Porwal and Others 1981 Indlaw SC 423 (supra). In this connection, the following pertinent observations were made at page 735, para 11 of the report. \"..The basic assumption of the submission was that the Maharashtra Agricultural Produce Marketing (Regulation) Act was conceived in the interests of the agriculturists only and intended for their sole benefit. This basic assumption is not well founded. It is also clear to our mind that the regulation of marketing of agricultural produce, if confined to the sales by producers within the market area to traders, will very soon lead to its circumvention in the guise of sales by traders to traders or import of agricultural produce from outside the market area to within the market area..\n85. In our view the aforesaid observations are in Rameshchandra Kachardas Porwal's case 1981 Indlaw SC 423 (supra) are in consonance with the decision of the Constitution Bench of this Court in Ram Chandra Kailash Kumar and Company and Others (supra) and are well sustained. This very question was once again examined by another three Judge Bench of this Court in the case of Rathi Khandsari Udyog and Others vs. State of Uttar Pradesh and Others (1985 (2) SCC 485 1985 Indlaw SC 524) wherein Fazal Ali J., speaking for majority, relying upon the earlier decisions of this Court including the Constitution Bench judgment in the case of Ram Chandra Kailash Kumar and Company and Others (supra), considered the very same contention as canvassed by learned senior counsel Shri Shanti Bhushan, namely, that the Market Act was meant to protect the agriculturists who produce basic agricultural produce and was not meant to protect big producers having factories wherein they process the raw agricultural produce and manufacture marketable commodity out of it. Repelling such narrow view of the regulatory provisions of the Market Act, at para 35 of the report, the following pertinent observations were made : \"The Legislature, it is also argued, \"could not have intended\" to cover the produce turned out by producers like the petitioners. While this is one of the objects of the Act, it is not the sole or only object of the Act. The Act has many more objects and a much wider perspective such as development of new market areas, efficient collection of data, and processing of arrivals in Mandis with a view to enable the World Bank to give substantial economic assistance to establish various markets in Uttar Pradesh, as also protection of consumers and even traders from being exploited in the matter of quality, weight and price..\"\n86. In view of this settled legal position, therefore, it cannot be held that merely because the tea leaves produced in tea gardens outside the State of Bihar are processed by the appellant in its factories outside Bihar and are converted into blended and branded qualities of packed tea like red label tea or green label tea etc., and even though such packed tea is sold within Bihar Market areas, the Market Act cannot be applied to such sale transactions of manufactured tea after importing it in the State of Bihar. The first point, therefore, has to be rejected. That takes us to the second contention in support of the appeal. POINT NO.2 : The Tea Act of 1953 provides for control by the Union Government of the Tea Industry, including the control, in pursuance of the International Agreement now in force, of the cultivation of tea in, and of the export of tea from, India and for that purpose to establish a Tea Board and levy a duty of excise on tea produced in India. It is necessary to have a bird's eye view of its relevant provisions. S. 4 deals with a board called \"Tea Board\". The members of the board not exceeding forty are to be appointed by the Central Government by notification in the official gazette and would consist of various persons representing - (a) owners of tea estate and gardens and growers of tea; (b) persons employed in tea estates and gardens; (c) manufacturers of tea; (d) dealers including both exporters and internal traders of tea; (e) consumers; (f) Parliament; (g) the Government of the principle tea-growing States. Amongst others, S. 10 deals with the Functions of the Board - It provides as under:\n\"(1) It shall be the duty of the Board to promote, by such measures as it thinks fit, the development under the control of the Central Government of the tea industry.\n(2) Without prejudice to the generality of the provisions of sub-section (1), the measures referred to therein may provide for -\n(a) regulating the production and extent of cultivation of tea; (b) improving the quality of tea; (c) promoting co-operative efforts among growers and manufacturers of tea; (d) undertaking, assisting or encouraging scientific, technological and economic research and maintaining or assisting in the maintenance of demonstration farms and manufacturing stations; (e) assisting in the control of insects and other pests and diseases affecting tea; (f) regulating the sale and export of tea; (g) training in tea testing and fixing grade standards of tea; (h) increasing the consumption in India and elsewhere of tea and carrying on propaganda for that purpose; (i) registering and licensing of manufacturers, brokers, tea waste dealers and persons engaged in the business of blending tea; (j) improving the marketing of tea in India and elsewhere; (k) Xxxx xxx xxxx\"\n87. S. 12 deals with method of control of extension of tea cultivation. S. 14 deals with grant of permission to plant tea. S. 15 provides for grant of permission to plant tea in special circumstances. Owners of tea estate can establish tea nurseries as provided by S. 16. Chapter IIIA deals with management or control of tea undertakings or tea units by the Central Government in certain circumstances. Section 16E provides for power of the Central Government to take over tea undertaking or tea unit without investigation under certain circumstances. Chapter IV deals with control over the export of tea and tea seed. S. 30 in Chapter IV deals with power of the Central Government to control price and distribution of tea or tea waste. \"Power to control price and distribution of tea or tea waste.- (1) The Central Government may, by order notified in the Official Gazette, fix in respect of tea of any description specified therein(a) the maximum price or the minimum price or the maximum and minimum prices which may be charged by a grower of tea, manufacturer or dealer, wholesale or retail, whether for the Indian market or for export; (b) the maximum quantity which may in one transaction be sold to any person.\" Sub-s. (3) of S. 30 enables the Central Government by general or special order to - \"(a) prohibit the disposal of tea or tea waste except in such circumstances and under such conditions as may be specified in the order; (b) direct any person growing, manufacturing or holding in stock tea or tea waste to sell the whole or a part of such tea or tea waste so grown or manufactured during any specified period, or to sell the whole or a part of the tea or tea waste so held in stock, to such person or class of persons and in such circumstances as may be specified in the order.\"\n88. Sub-s. (4) of S. 30 reads as under : \"Where in pursuance of any order made with reference to cl. (b) of sub-section (3), any person sells the whole or a part of any quantity or tea or tea waste, there shall be paid to him as price therefor-\n(a) where the price can be fixed by agreement consistently with the order, if any, relating to the fixation of price issued under sub-section (1), the price so agreed upon; (b) Xxxxxxxxxx (c) Xxxxxxxxx.\"\nS. 32 deals with appeal to the Central Government. S. 33 deals with licensing of brokers, tea manufacturers, etc. S. 39 deals with penalty for illicit cultivation. S. 40 deals with removal of tea planted without permission. It is not in dispute between the parties that, as per the scheme of the Tea Act, tea leaves which are plucked in tea gardens in different States of the country, especially, in North-eastern State like Assam, West Bengal and other States and which are roasted in tea factories are auctioned at Calcutta, Guwahati, Siliguri and other notified places. It is also an admitted position that the appellant purchases roasted tea leaves at such auctions and then they are blended and packed according to different brands and rates by the appellant at its factories outside the Bihar State and then markets it throughout India at fixed prices, local taxes varying from place to place. The aforesaid provisions of the Tea Act which are enacted by the Union Parliament under Entry 52 of List I read with Entry 33 of List III deal with the control of tea industry in public interest. The basic feature of the Tea Act is to provide for control of extension of tea cultivation in the areas where tea leaves are grown in tea gardens.\n89. However, it is pertinent to note that the said Act does not provide for regulating the sale of purchased roasted tea leaves after they are subjected to manufacturing process of blending and are brought in the market for sale as packed tea. The place where such packed tea is to be sold and the price at which it has to be sold are matters on which the Tea Act, 1953 does not contain any statutory provisions. However, Shri Shanti Bhushan, learned senior counsel for the appellant, strongly relied upon S. 30 of the Act. It is true, as seen earlier, that the said section found in Chapter VI deals with control by the Central Government and lays down the power of the Central Government regarding control, price and distribution of tea or tea waste. However, it is to be noted that till date no such control order has been issued by the Central Government under the said provision. Learned senior counsel submitted that once the Central Legislature has enacted the aforesaid provision and evinced its intention to control price and distribution of tea or tea waste, the field gets occupied by legislation under Entry 33 of the Concurrent List and to that extent the provisions of Market Act would get excluded. It is not possible to accept this contention for the simple reason that so long as the Central Government does not issue any order under S. 30 of the Tea Act, the field dealing with fixation of maximum price or minimum price to be charged by a grower of tea, manufacturer or dealer, wholesale or retail, for Indian market leaving aside the question of export, would not be occupied.\n90. In other words, it would remain open for the State Legislature to cover that field by exercising its legislative power under Entry 33 of the Concurrent List. Even this aspect of the matter is also not res integra. It is covered by a decision of the Constitution Bench of this Court in Ch. Tika Ramji & Others etc. vs. The State of Uttar Pradesh & Others (1956 SCR 393 1956 Indlaw SC 90). In that case, the Constitution Bench was concerned with the question whether the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 could be said to have been legally enacted by the Uttar Pradesh State Legislature despite the operation of the I.D.R. Act which contained a declaration whereby sugarcane industry was sought to be regulated by the I.D.R. Act. Section 18G of the Act referred to earlier whereunder there was a possibility of the Central Government issuing appropriate control order to occupy that field was held not to bar the legislative competence of the State Legislature to enact appropriate provisions regarding the said industry. Such a mere possibility of promulgation of order under Section 18G of the I.D.R. Act was held not to have occupied the field whereby the State Legislature could not enact appropriate statutory provisions by exercise of its legislative power under Entry 33 of List III. Bhagwati, J., speaking for the Constitution Bench, placing reliance on the observations of Sulaiman J., in the decision of the Federal Court in Shyamakant Lal vs. Rambhajan Singh [(1939) F.C.R. 188, 212] extracted, with approval, the following passage from the said decision at page 427 of the report as under :\n91. \"When the question is whether a Provincial legislation is repugnant to an existing Indian law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity. There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other; and care should be taken to see whether the two do not really operate in different fields without encroachment. Further, repugnancy must exist in fact, and not depend merely on a possibility. Their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibitions of the Canadian Act are not and may never be in force: (Attorney-General for Ontario v. Attorney-General for the Dominion)\" Thereafter the following pertinent observations were made by Bhagwati, J., speaking for the Constitution Bench : \"In the instant case, there is no question of any inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act. The only questions that arise are whether Parliament and the State Legislature sought to exercise their powers over the same subjectmatter or whether the laws enacted by Parliament were intended to be a complete exhaustive code or, in other words, expressly or impliedly evinced an intention to cover the whole field.\" and thereafter Section 18-G of the I.D.R. Act was considered and it was held as under : \"Even assuming that sugarcane was an article or class of articles relatable to the sugar industry within the meaning of Section 18-G of Act LXV of 1951, it is to be noted that no order was issued by the Central Government in exercise of the powers vested in it under that section and no question of repugnancy could ever arise because, as he has noted above, repugnancy must exist in fact and not depend merely on a possibility. The possibility of an order under Section 18-G being issued by the Central Government would not be enough. The existence of such an order would be the essential prerequisite before any repugnancy could ever arise.\"\n92. The aforesaid decision of the Constitution Bench, therefore, clearly repels the submission of learned senior counsel Shri Shanti Bhushan that merely because there is a possibility of issuance of a Control Order under S. 30 of the Tea Act by the Central Government, the field is fully occupied in connection with fixation of the maximum and minimum prices of packed tea to be charged by manufacturer or dealer, wholesale or retail or regulating the maximum quantity of packed tea to be sold to any person. In a later decision of the Bench of two learned judges to which one of us, Sujata V. Manohar J., was a party, the very same view has been reiterated relying upon the aforesaid decision in Ch. Tika Ramji & Others etc. vs. The State of Uttar Pradesh & Others 1956 Indlaw SC 90 (supra). The latter decision is rendered in the case of SIEL Ltd. and Others 1998 Indlaw SC 1288 vs. Union of India and Others (supra), as noted earlier. It must, therefore, be held that mere possibility of issuance of any future order under S. 30 (1) of the Tea Act by the Central Government, in the absence of any existing express order to that effect, cannot be said to have occupied the field regarding purchase and sale of manufactured tea and fixation of maximum or minimum price thereof, or the location of such sales. These topics cannot be said to be legitimately covered by the Tea Act.\n93. Hence, the field is wide open for the State Legislature to exercise its concurrent legislative power under Entry 33 of List III for effectively dealing with these matters. This is precisely what has been done by the State Legislature by enacting the Market Act. The insertion of item pertaining to Tea (leaf and dust) in the Schedule, therefore, cannot be said to be an unauthorised exercise on the part of the delegate of the State Legislature, namely, the State Government which has exercised its power under S. 39 of the Market Act. Before parting with the discussion on the Tea Act, it is also necessary to keep in view the history of tea industry in India. It is apparent that the Tea Committee 1934, Indian Tea Control Act, 1938 and Central Tea Board Act, 1949 had been made with a view to control export of tea and tea cultivation. The Tea Act, 1953 was enacted to provide for taking several functions of licensing and vesting it in the Board and to exercise (1) control over tea cultivation and (2) control over the export of tea and tea seeds. The preamble of the Act states that it is intended to provide for the control by the Union of the tea industry, including the control, in pursuance of the International Agreement, of the cultivation of tea and export of tea. Thus the objective of the Tea Act is focussed on tea cultivation/tea export and establishment of tea manufacturing plants. It is quite different from that of the Market Act, 1960 made by the Bihar Legislature. The Tea Act has no concern with the establishment of markets in the State of Bihar or other States wherein packed tea could be sold in wholesale or retail markets so as to ultimately reach the Indian consumers. That takes us to the consideration of the Control Orders issued by the Central Government in exercise of its power under Section 30, sub-ss. (3) and (5) thereof. One such order is the Tea (Distribution and Export) Control Order, 1957 which pertains to licensing of the distributors and exporters of tea. Cl. 3 requires distributors carrying on the business of distributing tea to have a licence under this order. The export of tea is not touched by the Market Act as it has nothing to do with the export of tea to other countries. Cl. 9 says that the licence given is personal and nontransferable. Cl. 10 requires the licensee to pack and mark containers of tea in the manner mentioned therein. The proviso is significant.\n94. According to it, Cl. 10 (c) does not apply to containers containing not more than 20 Kg. net or such other weight as to make it package tea for the purpose of the Central Excises and Salt Act, 1944. Cl. 11 provides that no distributor shall distribute tea for sale which is not packed and marketed as per Cl. 10 and which is adulterated or which makes false claim for such tea. Thereafter, are noted various statutory requirements. Firstly, the \"distributor\" contemplated by the 1957 Order is a distributor in the commercial sense who as principal or agent distributes tea to the wholesaler. Secondly, the distribution controlled is linked with export. Thirdly, since distribution is clubbed with export, it can at best be said to be distribution which is being made in similar bulk as exports. Fourthly, Form A provides for granting of licence to carry on business in manufactured tea as distributors at the places mentioned in the application. While Form B deals with licence to carry on business in manufactured tea as distributor/exporter of tea. It thus, becomes at once clear that this Control Order does not command licencee to carry on distribution of tea for sale at any particular place/market. The aforesaid Control Order has nothing to do with the establishment of markets for selling packed tea. The requirement of packing and marketing is again not contemplated by the Market Act, 1960.\n95. Hence, it is difficult to appreciate how this Control Order has occupied the field of regulation of sale and purchase of packed tea in market areas. The next Order on which Shri Shanti Bhushan, learned senior counsel for the appellant, strongly relied was the Tea (Marketing) Control Order, 1984. The said Order was promulgated by the Central Government in exercise of its power under subss. (3) and (5) of S. 30 of the Tea Act, 1953. It pertains to licensing of the distributors and exporters. A mere look at the said Order shows that it does not provide for any regulation of sale and purchase of tea in the markets in different States in India. Cl. 3 requires registration of manufacturer of tea and such manufacturer has to submit monthly return under Cl. 5 in Form C. Cls. 6 and 7 pertain to Organiser of Tea Auction and Broker in Tea Auction. Cl. 14 declares that the licence is personal and non-transferable. These persons are to maintain records as per Cl. 16. Cl. 17 directs the manufacturer to sell not less than 75% or such higher percentage, as specified by the Board, of tea manufactured by him in a year through public tea auctions in India held under the control of organisers of tea auction. Cl. 19 exempts tea marketed directly by the manufacturer as packet tea, instant tea, tea bags, aromatic tea and green tea from computation of the total production under para 17. Firstly, 1984 Order deals with manufacturers and organisers of tea auction and brokers of tea auction and its basic concern is to require them to have licences in the form of authority.\n96. It is obvious that even this Order cannot advance the case of the appellant. The next Order which was pressed in service was the Tea Warehouses (Licensing) Order, 1989. The said order was also promulgated by the Central Government in exercise of the power conferred by sub-ss. (3) and (5) of S. 30 of the Tea Act, 1953. A mere look at the salient features of 1989 Order shows that it has not covered the field tried to be occupied by the Market Act. The public tea auctions contemplated by 1984 Order are those which are held under Cl. 3 of the Tea Warehouses (Licensing) Order, 1989. In fact Cl. 14(7) prohibits the warehouse owner from entering into any transaction with the manufacturer/broker/organiser of tea auction unless they have licences under the 1984 Order. The public tea auctions are held in specified areas in Calcutta, Siliguri, Guwahati, Cochin, Coimbatore and Amritsar. Thus, the 1984 Order and the Tea Warehouses (Licensing) Order 1989 are basically concerned with the public tea auctions and the licensing of manufacturer/broker/organiser of public auction and warehouses with regard to holding of public tea auctions. The warehouse is to be governed as per Cl. 10(7) of the 1989 Order. This Order does not apply to the storage godowns in the markets established under the Market Act, 1960. But assuming it applies, the only effect would be that the storage places in markets should be in conformity with Cl. 10(7). As far as obtaining of licence is concerned, it has to be obtained by the warehouse owner who carries on the activities of storing, blending or packing of tea in the warehouse. Once the manufacturer or trader takes space from the Market Committee in the godown in the Market Yard, then he would be the warehouse owner u/cl. 2(1) of the 1989 Order and would have to take a licence, as authority, from the Tea Board. Both under the 1984 Order and 1989 Order, there is no requirement to carry on the business at any particular place/market. These Orders do not concern themselves with establishment of market or fixing place of business.\n97. The aforesaid Orders on which reliance was placed by learned senior counsel Shri Shanti Bhushan indicate that the Central Government in its wisdom did not think it fit to issue any Order under Section 30, sub-section (1), cls. (a) & (b) and, therefore, kept the field wide open in connection with the topics covered by the said provisions of S. 30 for the State Governments to exercise their legislative powers and enact suitable legislations under Entry 33 of the Concurrent List III of the Seventh Schedule of the Constitution. Our attention was then invited by Shri Shanti Bhushan, learned senior counsel for the appellant, to the Tea Waste (Control) Order, 1959. Even this order is issued by the Central Government under sub-ss. (3) and (5) of S. 30 The Tea Waste (Control) Order, 1959 applies only to tea waste as defined in Cl. 2 (f). Thereunder a person selling/offering for sale/buying/holding any stock in tea waste is required to have licence. (Clauses 3,4,5, and 6). Cl. 9 provides that licence is not transferable. Cl. 13 provides that licensee shall have in possession tea waste not exceeding that which may be fixed by the licensing authority. Under Clause 19A false declaration is prohibited. On a conjoint reading of the aforesaid statutory Orders issued under the Tea Act and the relevant scheme of the Tea Act, it becomes at once clear that the provisions regarding fixation of appropriate price at which blended and packed tea can be sold to wholesalers in any established market or particular place at which sale transactions of such manufactured tea between the manufacturers on the one hand and the traders or other wholesale producers/dealers on the other are outside the sweep either of the Tea Act or of the relevant statutory Orders framed under S. 30 by the Central Government under the very same Act.\n98. The places at which public auctions can be held in connection with sale of roasted tea leaves to be purchased by manufacturers like the appellant are the earmarked six places indicated in 1984 and 1989 Orders. These auctions have nothing to do with the later sales of manufactured blended tea by such auction purchasers of tea leaves, who manufacture packed tea by blending and packing roasted tea leaves in their factories. The public auctions as contemplated by these Orders, therefore, serve out their purpose once the manufacturers of blended tea, like the appellants, purchase roasted tea leaves in public auctions. Once such purchased tea leaves are further processed after blending and packed in suitable receptacles for sale in local markets the stage is reached for regulating such sale transactions by manufacturers of tea when they are subjected to further auctions to be held in the market areas wherein the licensed distributors and manufacturers of tea can be subjected to the procedure of Section 15, sub-s. (2) of the Market Act. So far as these later transactions are concerned, neither the Tea Act nor any of the aforesaid Orders can hold the field. Such sale transactions of manufactured tea in packed condition will, therefore, necessarily have to be governed by the provisions of the Market Act applicable to the area wherein such sale transactions in favour of wholesalers or retailers are effected by the stockists of the appellant operating in the market areas concerned. It is also pertinent to note that S. 15 of the Market Act gets attracted to such transactions of sale. It is not possible to agree with the contention of learned senior counsel Shri Shanti Bhushan that once the retail prices are fixed by the appellant there is no necessity of auctioning this tea in packed condition as per S. 15 sub-s. 2 of the Market Act. It has to be kept in view that under the relevant Orders issued by the Central Government under S. 30 of the Tea Act, as noted earlier, the purchasers of tea have also to be licensed. Such licensed purchasers can bid at the auctions to be held as per Section 15, sub-s. (2) of the Market Act for purchasing such packed tea. At that stage, there is no inconsistency or conflict between the earlier public auction held under the relevant statutory Orders issued under S. 30 of the Tea Act concerning roasted tea leaves and the auction of packed and processed tea by the appellant selling such commodities in the market areas through their stockists to wholesale dealers and traders operating in the market area and the market yard or sub-market yards concerned.\n99. In this connection, we may note one other submission of learned senior counsel Shri Shanti Bhushan for the appellant. He submitted that for almost 16 years tea was not a scheduled item governed by the Market Act. In fact, the Bihar Legislature did not think it fit to include Tea (leaf and dust) as a scheduled item from the inception but it is only the delegate, namely, the State of Bihar in exercise of its power under S. 39 thought it fit to introduce Tea (leaf and dust) as a scheduled item. The procedure of Ss. 3 and 4 has not to be followed while undertaking this exercise. In this connection, it was submitted that no reasonable person could have undertaken such an exercise as tea was already a controlled commodity under the Tea Act and also governed by the relevant Orders issued thereunder. As we have seen earlier, under the relevant provisions of the Tea Act and the operative Orders promulgated thereunder the Central Government has left untouched the field of regulation of prices and the location of market places where such packed tea could be sold to the wholesale dealers or even to the retailers. When that field was wide open, the State Government in its wisdom, could legitimately try to cover the filed by issuing appropriate Orders under S. 39 of the Act. It cannot be said, therefore, that such an exercise was totally ultra vires or amounted to non-application of mind. In fact, what the Central Government should have done and did not do by issuing appropriate Orders under Section 30, subs. (1) Cls. (a) & (b) of the Tea Act could legitimately be done by the State Government. It was not required to wait indefinitely till the Central Government could find time to issue such an Order. Shri Shanti Bhushan, in this connection, further submitted that if that is so, then if in future the Central Government wakes up and issues such an Order, would the then existing Entry in the Schedule regarding tea get superseded or become inoperative ? This is a hypothetical question raised which does not require any answer obviously at this stage.\n100. As and when in future such an eventuality occurs, then the question of continuation of regulation of sale and purchase transactions of Tea (leaf and dust) by retaining this item in the Schedule may have to be examined. But as the statutory provisions stand at present, in the absence of any such existing Order under S. 30 sub-s. (1) Cls. (a) & (b) by the Central Government, the field remains wide open and at least it was definitely open when the State Government introduced the Entry of Tea (leaf and dust) in the Schedule to the Market Act in 1976. This exercise, by no stretch of imagination, could be said to be unauthorised, illegal or amounting to non-application of mind. The second contention, therefore, is answered in negative against the appellant and in favour of the respondent. That takes us to the consideration of contention no.3 POINT NO. 3 : Once it is held that the Market Act covers the transactions of sale of packed blended tea in sealed packets and receptacles by the appellant's stockist in the market areas concerned especially when these transactions take place in the market yard or sub-market yards as laid down by S. 15 of the Act which remains fully operative to cover such transactions, there is no escape from the conclusion that the entire infrastructural facilities for regulation of such sale transactions as made available by the market committee concerned would enure for the benefit of sellers of such packed blended tea. It is also pertinent to note that so far as the appellant is concerned, all that is required of it is to take licence for selling packed tea in market yards, sub-market yards from the market committee concerned. The appellant is not required to bear the burden of any market fee.\nAs per S. 27 of the Act, the burden of market fee is to be borne by the purchasers of such packed tea, namely, the wholesale dealers licensed to purchase such tea as per the Central Orders mentioned earlier. Such purchasers have not brought in challenge levy of market fee on them. So far as the appellant is concerned, once its stockist sells the packed tea in the market yard or sub-market yards maintained by the market committee, the entire infrastructural facilities made available by the market committee to all the purchasers and sellers of agricultural produce in the market yard, would automatically become available to the appellant's stockist who sells its goods, namely, packed tea in the market yard or sub-market yards concerned. In this connection, it has also to be kept in view that establishment of markets and maintenance thereof is a topic of legislation squarely covered by Entry 28 of List II of the Seventh Schedule. For maintaining such markets, the market committees obviously have to spend large amounts for providing necessary infrastructure for the benefit of those who use such established markets. In this connection, S. 30 of the Market Act, as noted earlier, becomes relevant for our consideration. Amongst others, the Market Committee Fund has to be utilised under S. 30 for the following purposes :\n\"(i) the acquisition of a site or site for the market;\n(ii) the maintenance and improvement of the market;\n(iii) the provision and maintenance of standard weights;\n(iv) the construction and repair of buildings [check posts, market gates and other fixtures] necessary for the purpose of such market and for the health, convenience and safety of the persons using it;\n(v) Xxxx xxx xxx\n(vi) Xxxx xxx xxx\n(vii) Xxxx xxx xxx\n(viii) The construction, repair and maintenance of means of communication which are useful for the purposes of [regulation, control and] development of a market or for the convenience and safety of the persons using it;\n(viii-a)link roads connecting the main road from the villages in the Market Area of the concerned market committee shall be constructed on priority basis from the Development Fund to facilitate the farmers to go to and from the villages;]\n(ix) the planting and rearing of trees, and making arrangements for providing to the persons and cattle coming to a market and like purposes;\n(x) Xxxxxx xxxxx xxxxx\n(xi) Xxxxx xxxx xxxxx\n(xii) Xxxxx xxxx xxxx\"\n101. All these provisions clearly indicate that once the transaction of sale or purchase of any agricultural produce is governed by the Act and once S. 15 of the Act applies to such transaction, the entire machinery of the Act would get attracted to regulate such transaction and the complete infrastructure for which provisions are made by the market committee including the facilities available at such markets would become available to the purchasers and sellers of such commodities in the market. For providing these infrastructural facilities the market committee has to spend from its funds. This would supply adequate quid pro quo for levying market fee on the buyers of commodities sold at its market yard or sub-market yard. It is, therefore, not possible to agree with the learned senior counsel for the appellant that there is no quid pro quo underlying transactions of sale of packed tea by the appellant's stockist in the market yard or sub-market yards maintained by the market committee concerned. The third contention, therefore, is to be answered in affirmative against the appellant and in favour of the respondent. Before parting with this appeal, it is necessary to briefly deal with the written submissions furnished in support of the appeal by learned counsel after arguments were over and which have already been dealt with by us in detail hereinabove. So far as the written submissions filed by the appellant on 8th May, 1999 are concerned, we may state that to the extent they tried to re-iterate what was submitted earlier and considered by us, will stand repelled in the light of the detailed reasons recorded by us earlier in this connection. Processing of packed tea manufactured out of tea leaves purchased by the appellant in the auction at six places obviously is not covered by the applicability of the Market Act in the present case. All that the Market Act seeks to cover is the sale transactions pertaining to packed tea branded and marked in accordance with the regulations made by the Tea Board to the extent these sealed packets are sold by the appellant within the market area. These transactions of sale of packed tea, as discussed by us earlier, would squarely attract the applicability of the Market Act as they take place within the market area governed by the Market Act.\n102. As seen earlier, manufacturing activities concerning this packed tea has no relevance for arriving at an appropriate answer to this question. Contention raised in para 2 of the written submissions is also besides the point, whether other States levy market fee or not is not at all relevant. The Bihar legislation may be a pioneer in this field. The short question is whether the Market Act can govern the transaction of sale of packed manufactured tea by the appellant within the market areas in the State of Bihar ? So far as this question is concerned, the aforesaid contention can be of no assistance to the appellant. Contention in para 3 of the written submissions about the basic object of the Bihar Market Act and whether it should ensure only the protection to the grower of the agricultural produce within the market area stands repelled by a Constitution Bench Judgment of this Court to which a detailed reference has been made in the earlier part of this judgment. Para 4 of the written submissions deals with various statutory provisions of the Tea Act of 1953 and the relevant Control Orders thereunder. As discussed earlier, the schemes of the Tea Act and the Control Orders do not cover the field carved out by the Market Act for bringing within its sweep transactions of sale of agriculture produce encompassed by the wider definition thereof under that Act insofar as such produce is sold within the market area to which the Market Act applies. It is difficult to appreciate the contention in para 8 of the written submissions to the effect that the State had not applied its mind in bringing tea within the sweep of the Market Act in exercise of its power under S. 39 of the Act. As discussed earlier, this contention is devoid of any substance. Contention in para 9 of the written submissions is also devoid of any merit. It is not the case of the appellant that the sale of manufactured tea in Bihar markets within the market area of the concerned market committee requires the appellant to bear the burden of the market fee.\n103. It is obvious, as seen earlier, that charge of market fee is on the buyer of branded tea and not on the seller thereof, like the appellant. The purchasers of branded market tea manufactured by the appellant who purchase the said produce in market areas governed by the Market Act have made no grievance in this connection. Even otherwise, as seen earlier, once the wide definition of \"agricultural produce\" as found in the Market Act governs such sale transactions and when S. 15 of the Act covers such transactions, the charge u/s. 27 would obviously get settled on these transactions. As a logical corollary thereof, even if the appellant may have to act as a collecting agent for the market committee concerned as per its legal obligation in given circumstances, that by itself cannot exonerate it, once the statutory scheme of the Act covers transactions of sale of branded tea carried out by the appellant in the market area governed by the Market Act. Contentions found in para 10 of the written submissions are to be stated to be rejected. Once the sale transactions of packed tea are governed by the sweep of the Market Act, and once such sale transactions have to be regulated as per the machinery of the Market Act, on the applicability of S. 15 of the Act, the entire infrastructure available for regulating such sale transactions at the market yard or sub-market yards whose benefit would obviously be available to the appellant cannot entitle the appellant to contend that its fundamental right u/art. 19(1)(g) of the Constitution is violated. To say the least, it would be a reasonable restriction on exercise of such a right. It is pertinent to note that the appellant has not challenged the vires of S. 27 of the Market Act. It is difficult to appreciate the submission that compelling the sealed and packed tea to be brought into the market yard and to be auctioned thereof cannot be considered to advance the public interest in any manner. Public interest obviously gets advanced as the sale transactions will get regulated by the infrastructural machinery at the market yard and sub-market yards concerned, where such transactions take place.\n104. The contention that the Bihar Act would be unConstitutional cannot be countenanced for twin reasons. Firstly, such a contention was not canvassed either before the High Court or before this Court in the present proceedings. Secondly, in any case, on the applicability of the Act once the transaction of sale of packed tea takes place in the market area, it cannot but be said to be imposing reasonable restriction under Art. 19 sub-art. (6) on the appellant's fundamental right. The appellant, as a seller of manufactured tea, has not to bear any burden of the imposed market fee on sale transactions. All that it gets is the benefit of the infrastructural facilities made available by the market committee for regulating such transactions and if the appellant is likely to get more price for its branded tea by subjecting its sale transactions to auction instead of the said provision adversely affecting the appellant would, on the contrary, be more beneficial to it. Maybe, the appellant from commercial point of view may not like to charge higher price for the packed tea from its customers but that does not mean that the infrastructural facilities made available by the market committees to the appellant to get more price of its branded tea if so desired by it can be construed in any way to be adversely affecting its commercial business interests. For obvious reasons, therefore, none of the contentions found in the written submissions can advance the case of the appellant's and they necessarily have to stand repelled. These were the only contentions canvassed by learned senior counsel in support of the appeal and as they fail, the inevitable result is that this appeal fails and will be liable to be dismissed. FINAL ORDER : As a net result of the aforesaid discussion, therefore, the following orders are passed : 1. SUGAR GROUP MATTERS: These appeals, namely, Civil Appeal Nos. 398 and 399/1977, 234/1995, 8163/1994, 7432/1994, 2632-33/1982, 1282/1995 are allowed. The judgments and orders passed by the High Court impugned in these appeals are set aside. The Writ Petition No. 1250/1986 filed by the petitioner will stand allowed accordingly as detailed in this judgment subject to the riders mentioned hereinabove. Civil Appeal Nos.4500-05 of 1992, so far as they seek to challenge the levy of market fee on sugar are concerned, will stand allowed. The respective six petitions filed before the High Court dealing with levy of market fee on sugar will stand allowed. Civil Appeal arising out of S.L.P. (C) No.9684 of 1992 will stand allowed to the extent Civil Writ Petition No.5974 of 1988 filed before the High Court deals with the contention regarding market fee on sugar. Instead of the relief granted by the High Court limiting to the non-levy of market fee on sugar after 2.5.1977, it is directed that levy of market fee on sugar for the entire period covered by the writ petition will be treated to be unauthorised. This judgment will have only prospective operation and will not affect past transactions entered into prior to the date of this judgment.\n105. WHEAT PRODUCTS LIKE ATTA, MAIDA, SUZI, ETC. These appeals, namely, Civil Appeal Nos. 2951, 2952 and 2953 of 1992, 3505 & 3506 of 1992 and 829/1993 are dismissed. 3. VEGETABLE OIL MATTERS : Civil Appeal No.1427 of 1979 is dismissed. Civil Appeal Nos.4500-05 of 1992, so far as they deal with levy of market fee on Vanaspati Oil are concerned, will stand dismissed and the High Courts decision in all six writ petitions pertaining to levy of market fee on edible oil shall remain confirmed. Civil Appeal arising out of S.L.P. (C) No.9684 of 1992, so far it challenges the levy of market fee on edible oil is concerned, stands dismissed. The order of the High Court in C.W.J.C. No.5974 of 1984 concerning the vegetable oil is confirmed and the writ petition to that extent will stand dismissed. 4. RICE MILLING INDUSTRY: These Civil Appeals arising out of SLP (C) Nos.3159-60 of 1994 are dismissed.\nMILK AND MILK PRODUCTS This Civil appeal No.1880 of 1988 is allowed. The judgment and order of the High Court are set aside. However, the past transactions will not be reopened and this judgment will have only prospective effect governing future transactions that are to be entered into after the date of this judgment. 6. TEA MATTER This Civil Appeal No.2532 of 1980 is dismissed. In the facts and circumstances of the case, there will be no order as to costs in all these appeals.\nAppeal allowed.\n"}
+{"id": "wmq6OLkTkx", "title": "", "text": "Jogendra Lal Saha v State of Bihar and Others\nSupreme Court of India\n\n6 November 1990\nC.A. No. 232 of 1974\nThe Order of the Court was as follows:\n1. Appellant had entered into a contract with the State of Bihar in the year 1968 for a period of three years in the matter of appropriating tendu leaves from certain forests of the State of Bihar in the Dumka division stipulating to pay the price in three instalments spread over the three years for which the contract was valid. There is no dispute that the first annual instalment had been paid. Nor is there any dispute that the other two had not been paid. At a point of time when the third one had not become due and in regard to the second there had been default, proceedings under the Bihar Public Demands Recovery Act, 1914, were initiated for recovery of the two instalments on the requisition of the forest officer after adjustment of the security deposit and the price obtained at a re-auction. The appellant challenged the action taken in a proceeding u/art. 226 of the Constitution before the Patna High Court.\n2. The Patna High Court by the impugned decision in Bhimrao Gururao Deshpande v. Prahlad Subbarao Mutalik Deshpande 1972 Indlaw PAT 68 dismissed the petition and upheld the action. That has led to this appeal by special leave.\n3. The main stand taken in support of the appeal before us is that once the contract was rescinded, as would appear from the order dated April 18, 1969, (Annexure 'D') and the notice demanding the payment having not been complied with, the claim was actually for damages and not the balance of the sale price. Therefore, S. 82 of the Indian Forest Act, 1927 which authorises recovery of the amount as a public demand was not attracted and at the most the respondents were entitled to institute civil action with reference to the provisions of the Sale of Goods Act, 1930 and the summary procedure adopted was unauthorised and without jurisdiction.\n4. Support for this stand is sought by learned counsel from a series of decisions of different High Courts. He has placed before us the view indicated by the Allahabad High Court in Firm Gobardhan Das v. Collector of Mirzapur 1956 Indlaw ALL 187, Dewan Chand v. State of U.P. 1970 Indlaw ALL 195, State of U.P. v. Deewan Chand , Nanak Singh v. State of U.P. , Bala Datt v. Union of India 1961 Indlaw MP 41, J.A. Dalmet v. State of Mysore 1964 Indlaw KAR 97 and in Prem Singh v. Bank of India. These are cases where reliance has been placed on authorities dealing with recovery of damages on the assumption that the situation is covered by the Sale of Goods Act, 1930.\n5. We find that there is reference in the Allahabad decision in Virendra Kumar v. State of U.P. 1979 Indlaw ALL 230 to the provision of S. 83 of the Indian Forest Act but though the provision has been quoted full implication of it has not been brought out.\n6. As a result thereof the legislative purpose in providing S. 83 in the Indian Forest Act has really been overlooked.\n7. The two sections in the Indian Forest Act, 1927 may now be extracted:\n\"82. All money payable to the government under this Act, or under any rule made under this Act, or on account of the price of any forest produce, or of expenses incurred in the execution of this Act in respect of such produce, may, if not paid when due, be recovered under the law for the time being in force as it were an arrear of land revenue.\n83. (1) When any such money is payable for or in respect of any forest produce, the amount thereof shall be deemed to be a first charge on such produce, and such produce may be taken possession of by a Forest Officer until such amount has been paid.\n(2) If such amount is not paid when due, the Forest Officer may sell such produce by public auction, and the proceeds of the sale shall be applied first in discharging such amount(3) The surplus, if any, if not claimed within two months from the date of the sale by the person entitled thereto, shall be forfeited to government.\"\n8. S. 83 in clear terms makes the liability of government the first charge on the forest produce sold. Sub-s. (2) authorises the Forest Officer to sell the produce by public auction and the proceeds of such sale to be applied first to satisfy the debt for which the charge is provided. Sub-s. (3) makes clear stipulation that if there be higher amount obtained in the public auction, that would be payable to the contractor. If the scheme u/ss. 82 and 83 of the Act are put together and kept in view, it clearly follows that the entire situation has been provided for by special legislation and there is no need to fall back upon the provisions of the Sale of Goods Act to deal with the claim. There is no quarrel that a special provision would keep away the application of the general law and contracts for the sale of forest produce have, therefore, to be covered by the provisions contained in these two sections.\n9. The contract in question is in fact contrary to the scheme of this Act. It tries to take away the right of the contractor to be paid excess money earned on subsequent sale, though S. 83(3) of the Act authorises the contractor to claim the excess amount within the time stipulated. Some of the other terms under the contract also run counter to the provisions. When Parliament provides a special statute to cover a given situation, there is an obligation on the State while entering into contracts with citizens in regard to matters so covered, to follow the special procedure and obtain the protection which the law intends to confer in regard to such transactions instead of allowing its activities to run in a different direction.\n10. In the view we have taken of the matter it must be held that the consideration which has weighed with the different High Courts in the decisions referred to above while dealing with the recovery of unpaid forest contract money to which Ss. 82 and 83 apply must be taken not to be good law.\n11. It is not disputed that learned counsel for the appellant is right in his submission that the instalment relating to third year was not due when the requisition was sent or the certificate was signed. Therefore, the demand for that amount could not be included in the certificate. We might at this stage refer to the observations of the Privy Council in Baijnath Sahai v. Ramgut Singh where it has been pointed out that the certificate proceeding is of an extraordinary nature and compliance of the requirements of the statute should be meticulously done. At the foot of the certificate in Form No. 1 prescribed under the Act the Certificate Officer has to certify in the following terms\n\"I further certify that the above mentioned sum of Rs is justly recoverable and its recovery by suit is not barred by law.\"\n12. In view of the fact that the third instalment had not fallen due by the date, the question of including that amount in the certificate did not arise. Therefore, the proceeding as taken was non-est in law in terms of the decision referred to above.\n13. Since, this appeal arises out of a proceeding u/art. 226 of the Constitution, we do not propose to interfere in this matter in such a way as would unnecessarily benefit the appellant. The State's dues have got to be recovered on the admitted facts and if the certificate proceeding is quashed on technical grounds which are advanced in this appeal, the interest of the State would be prejudiced. We, therefore, dismiss the appeal relying upon Ss. 82 and 83 of the Indian Forest Act, 1927 and would make it clear that the liability of the appellant shall be confined to two instalments which were due for the second and third years in terms of the contract after setting off the security deposit and the amounts that have been recovered being Rs 2200 and Rs 28,000 respectively.\n14. The Certificate Officer before proceeding further shall apply his mind to the facts and if necessary hear the certificate debtor, ascertain the exact due, make an appropriate amendment in the certificate as required u/s. 11 of the Act and proceed to recover the amount that he finds is still recoverable under law. The appellant shall not be burdened with any claim of interest or other charges until the Certificate Officer modifies the certificate and liability for interest u/s. 17 would run only from that date provided any amount has remained unpaid. Parties are directed to bear their own costs throughout.\nAppeal dismissed.\n"}
+{"id": "9OBGhnuKon", "title": "", "text": "Shriram Mandir Sansthan Alias Shri Ram Sansthan Pusda v Vatsalabai and Others\nSupreme Court of India\n\n17 December 1998\nC.As. No. 1005 of 1991 (From the Judgment and Order Dt. 21 March 1990 of the Bombay High Court in W.P. No. 1564 of 1985) with Nos. 5512 of 1995, 1191 and 3808 of 1992\nThe Judgment was delivered by: Sujata V. Manohar, J.\n1.  The appellants in these appeals are trusts, either for an educational purpose or are institutions for public religious worship. The entire income from the lands belonging to each of these institutions is appropriated by it for the purposes of the trust. All these institutions are covered by S. 129(b) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Tenancy Act of 1958'). S. 129 of the Tenancy Act of 1958 is as follows:\n\"129. Nothing in the foregoing provision except section 2, the provision of Chapter II (excluding sections 21,22,23, 24 and 37) and s. 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply -\n(a) ..............\n(b) to lands which are the property of a trust trust for an educational purpose, hospital Panjarpole, Gaushata, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purpose of such trust; and\n(c) ..............\n(d) ..............\nExplanation - For the purpose of clause (b), a certificate granted by the Collector after holding an inquiry, that the conditions mentioned in the said clause are satisfies by the trust shall be the conclusive evidence in that behalf Each of these trusts have been granted a certificate by the Collector under the Explanation to S. 129 of the Tenancy Act of 1956.\"\n2.  The respondents in each of the appeals and/or their predecessors-in-title were tenants in respects of the lands belonging to the appellants. On the death of the tenant, the appellants filed an application for summary eviction of the respondents u/s. 120 of the Tenancy Act of l98. The appellants contended that o the death of the tenant, the tenancy came to an end and they were entitled to obtain possession of the lands. In these proceedings, ultimately the Maharashtra Revenue Tribunal in revision held that the tenant of the appellants-trust had not become a statutory purchaser under the Tenancy Act of 1958. However, the heirs of the deceased tenant were entitled to succeed to the tenancy. Hence the revision application of the appellants was dismissed. This decision was challenged by the appellants by filing a writ petition before the High Court. The High Court has dismissed the writ petitions so filed on the ground that the issue is covered against the appellants by a decision of the Full Bench of the Bombay High Court in Khanqah-Kadria Trust (Wakf), Balapur v. Shevantabai wd/o Raoji Shivaji (1989 Mh.L.J. 891). This has led to the filing of the present appeals.\n3.  The question which requires consideration in all these appeals is whether, in the case of lands belonging to a trust or an educational institution falling within S. 129(b) of the Tenancy Act of 1958, the tenancy is heritable on the death of a tenant, by his heirs. U/s. 54 which forms a part of Chapter III of the Tenancy Act, 1958, it is provided as follows:\n\"54. (1) Where a tenant dies, the landlords shall be deemed to have continued the tenancy -\n(a) if such tenant was member of an undivided Hindu family to the surviving member of the said family, and\n(b) if such tenant was not a member of an undivided Hindu family, to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death.\n(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow of the charge for maintenance on the profit of such land.\n(3) The interest an occupancy tenant in his holding shall on his death pass by in accordance with his personal law.\"\n4.  The marginal note to S. 54 sets out, \"Rights of tenants to be heritable\".\n5.  Section 129, however, which deals with the tenancy of lands belonging, inter alia, to places of public religious worship and educational institutions, provides, (inter alia) that Chapter III of the Tenancy Act, 1958 will not apply to such institutions. Therefore, S. 54 does not apply to the tenants of these institutions, Are these tenancies heritable under any other provision of law? To answer this question we will have to examine, broadly, the scheme of the Tenancy Act of 1958. The preamble to the Act states, inter alia, that:\n\"WHEREAS it is expedient to amend the law which governs the relations of landlords and tenants of agricultural lands....... in the Vidarbha Region of the State of Maharashtra with a view to bringing the status and rights of tenants as far as possible in line with those prevailing in certain other parts of the State; AND WHEREAS it is expedient in the interests of the general public to regulate and impose restrictions on the transfer of agricultural lands .......... belonging to or occupied by agriculturists, agricultural labourers, .......... and to provide for the assumption of the management of circumstances and to make provisions of certain other matters hereinafter appearing ........\"\n6.  The Act, therefore, ostensibly seeks to bring the relationship of landlords and tenants in the Vidarbha Region in line with the position prevailing in other parts of the State of Maharashtra. The other object of the Act is to regulate and impose restrictions on the transfer of agricultural lands and to provide for the assumption of the management of the agricultural lands and to make certain other provisions. The Act, therefore, is not meant entirely for the benefit of tenants although it gives valuable rights to the tenants of agricultural land generally. U/s. 2(32) a \"tenant\" is defined to mean a person who holds land on lease and includes - (a) a person who is deemed to be a tenant under Sections 6,7, or 8 and (b) a person who is a protected lessee or occupancy tenant. Sections 6, 7 and 8 fall under Chapter II of the Tenancy Act of 1958 which deals with general provisions regarding tenancy.\n7. U/s. 46 which forms a part of Chapter III, there is a provision for transfer of ownership of all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter with effect from 1st of April, 1961. There are certain exceptions to these provisions which are set out in that section. Under Section 49A which was inserted in Chapter III by the Maharashtra Act 2 of 1962, notwithstanding anything contained in ss. 41 or 46, on and from the 1st of April, 1983, the ownership of all lands held by a tenant being land which is not transferred to the tenant under section 46, or which is not purchased by him u/s. 41 or 50, shall stand transferred to and vest in such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is cultivated by him personally, and on condition that the landlord has not given a notice of termination of tenancy as set out in that section and subject to the various other provisions of that section. These sections which form a part of Chapter III do not apply to tenancies of lands covered by S. 129.\n8.  Only some of the preceding provisions of the Tenancy Act of 1956 apply to tenancies of lands belonging to trusts for educational purposes or institutions for public religious worship provided the entire income of such land is appropriated for the purposes of such trusts. The provisions which apply are Section 2, all sections falling under Chapter II with the exception of Sections 21, 22, 23, 24 and 37; Section 91, Chapter X and Chapter XII. S. 54 which forms a part of Chapter III, therefore, does not apply to the land belonging to such a trust or and institution for public religious worship. The Full Bench of the High Court in the case of Khanqah-Kadria Trust (Wakf), Balapur v. Shevantabai wd/o Raoji Shivaji (supra), however, held that although S. 54 which makes a tenancy heritable does not apply, the ordinary law relating to succession would apply and, therefore, tenancy of lands belonging to such trusts for an educational purpose or institutions for public religious worship would also be heritable.\n9.  To examine the correctness or otherwise of this view it is necessary to emphasis that S. 54 which makes tenancies heritable is expressly made inapplicable to tenancies of lands falling under S. 129(b). What is the effect of S. 129 which excludes the application of S. 54 to the tenancies of lands belonging to such trusts and institutions? The obvious effect is that the provisions is contained in S. 54 will not apply. But is it, also intended thereby that such a tenancy shall not be heritable? The best way to answer this question would be to see what would be the effect of holding that such a tenancy would be otherwise heritable. First of all, S. 54 makes, if it all, only a slight departure from the ordinary law of succession. Cl. (b) of S. 54(1) provides that if the deceased tenant was not a member of an undivided Hindu family, the tenancy would go to his heirs. Since this is the ordinary law of inheritance, its exclusion must entail exclusion of the ordinary law of inheritance. Sub-s. (3) of S. 54 provides that the interest of an occupancy tenant on his death shall pass by inheritance or survivorship according to his personal law. This also is nothing but a statement of the ordinary law of inheritance and succession. If we were to hold that the ordinary law of succession applies, the result would be, at least in the case of a tenant who is not a member of an undivided Hindu family, and an occupancy tenant, that his heirs would be entitled to succeed to the tenancy. At the same time, exactly the same provision in S. 54(1 )(b) and S. 54(3) would not apply! This would lead to a self-contradictory situation.\n10. It is, therefore, clear that at least for tenants of the description falling under S. 54(l)(b) and S. 54(3), the ordinary law of inheritance is not applicable in all cases where tenancies are not governed by S. 54. The exclusion of S. 54 necessarily implies exclusion of ordinary law of testamentary succession. S. 54 does not preserve the right of a tenant to make a will bequeathing his tenancy to a person of his choice in the case of those tenancies which are governed by S. 54. Heritability is to be governed entirely by S. 54. Therefore, by excluding Section 54, the clear intention is to make such tenancies non-heritable. S. 54(1)(a) makes a slight departure from Hindu Law of Succession. Inheritance by survivorship is conferred on all members of the joint family instead of only the coparceners. Therefore, all members of the joint family male and female inherit. The provisions in the Hindu Succession Act in cases where there are female heirs of a male having an interest in the joint family property, are also not applicable. The question the legislature intended that tenancies not covered by S. 54(1)(a) would nevertheless be governed by the ordinary law. In our view S. 54(1)(b) or S. 54(3). The entire section must be read harmoniously. The legislative intention as seen from the scheme of S. 54 is, that heritability of any tenancy falling within the definition off that term under the Tenancy Act of 1958 is governed exclusively by S. 54. Where S. 54 us made expressly non-applicable under the Tenancy Act of 1958, the tenancy us not heritable at all. An express provision in the Act which excludes the operation of certain provisions, cannot be made nugatory by resorting to general law.\n11.  This conclusion is strengthened by the fact that S. 37 which forms a part of Chapter II is also expressly excluded from application to the tenancies of such trust. S. 37 provides as follows:\n\"37. Save as provided in this Act, the rights and privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever, shall not be limited or abridged.\"\n12. Therefore, in the case of tenancies of such trusts, preservation of rights and privileges of a tenant under any law for the time being in force is excluded. Therefore, the rights and privileges of any tenant of such land belonging to a trust or religious institution would only be as prescribed under the Tenancy Act 1958. A resort cannot be had to any other law for the time being in force to determine their rights and privileges.\n13.  Learned counsel for the respondents drew our attention to the decision in the case of Gian Devi Anand v. Jeevan Kumar and Ors. [(1985) 2 SCC 583 1985 Indlaw SC 416). The Court has observed in that case that in the absence of any provision in the Act the ordinary law of succession would apply.  However, under the Bombay Tenancy Act of 1958, there is an express provision which excludes from the ambit of Section 54, tenancies of institutions covered by S. 129(b). Since S. 54 alone governs the heritability of tenancies covered by the Tenancy Act, 1958, the exclusion of S. 54 necessarily implies the exclusion of the ordinary law of succession and inheritance as well from the tenancies so excluded. [See in this connection Ratan Lal Adukia v. Union of India 1989 Indlaw SC 653 principle that a special subsequent legislation which is a code in itself excludes the earlier general law on the subject.]\n14.  The High Court was, therefore, not right when it held that although S. 54 is excluded, the ordinary law of succession and inheritance is not. And, therefore, the tenancy of lands belonging the institutions covered by S. 129(b) would be heritable under the ordinary law if not under S. 54.\n15. In fact, the Bombay High Court from 1958 to 1980 had consistently held the view that the tenancy of a public trust was not heritable. But in 1980 the High Court held that S. 40 of the Bombay Tenancy and Agricultural Lands Act was not the only source of inheritance and as such the tenancy of a public trust was heritable under that Act. The present S. 54 is the relevant section as far as lands in the Vidarbha Region are concerned. The Full Bench upheld the view taken in 1980. In our view, the exclusion of S. 54 by necessary implication also excludes the provisions of ordinary law of succession and inheritance from the tenancy of agricultural lands of institutions falling under S. 129(b).\n16. S. 129 clearly seeks to protect certain lands from the provisions of the Tenancy Act of 1958. The section thus protects lands held or leased by a local authority or a university, lands which are the property of a trust for an educational purpose, hospital, panjarpole, Gaushala or an institution for public religious worship, provided the entire income of such land is appropriate for the purposes of such trust. It also protects lands assigned or donated by any person before the commencement of the said Act for the purpose of rendering services useful to the community, namely, maintenance of water works, lighting or filling of water troughs for cattle. It also protects any land taken under management by a civil, revenue or criminal court as set out therein. There is a further safeguard ensuring that the income from such lands is appropriated for the purposes of a trust covered by S. 129(b). The explanation provides for the grant of a certificate by the collector after holding an inquiry.\n17. Thus, the clear intention of S. 129 is to protect certain lands from tenancy legislation where the lands or income from such lands is being utilised for public purposes set out there. In this context, if the tenancy of such lands are not made heritable, this would clearly be in furtherance of the purpose of exempting such lands under S. 129.\n18.  We, therefore, allow these appeals and set aside the impugned judgment and order of the High Court in each of the appeals. There shall, however, be no order as to costs.\nAppeals allowed.\n"}
+{"id": "3npgW2zMj5", "title": "", "text": "Bhagat Ram v State of Punjab\nSupreme Court of India\n\n9 February 1954\nCr.As. Nos. 46 and 47 of 1953.\nThe Judgment was delivered by: JAGANNADHADAS, J.\n1.  These two are appeals by special leave against a common judgment of the High Court of Punjab in its revisional jurisdiction. The appellant who is the same in both was convicted by the Magistrate, First Class, Hoshiarpur at two separate trials, one in respect of a charge u/s. 420 and the other in respect of a charge u/s. 409 of the Indian Penal Code. The convictions were confirmed by the Session Judge on appeal and by the High Court in revisions. The charges relate to connected matters and the evidence, though separately recorded, was substantially the same. It is, therefore, convenient to deal with the two appeals by a common judgment as the High Court did.\n2.  The appellant, Bhagat Ram, was the Civil Nazir in the office of the Senior Subordinate Judge, Hoshiarpur. The main charge against him was that in his capacity as a public servant, he committed criminal breach of trust in respect of a sum of Rs.3, 496/5/- of Government money between the 1st December, and the 18h December, 1948.\n3. The other charge was that in order to find the money to cover up the embezzlement, he tried to raise a sum of Rs. 3, 350/- by way of loan from one Seth Brij Lal, misrepresenting to him that it was required by the then Subordinate Judge and that by such representation he dishonestly induced the said Seth Brij Lal to issue a cheque for the sum of Rs. 3, 350/-.\n4.  At the material period of time Shri K. S. Gambhir was the Senior Subordinate Judge of Hoshiarpur in the place of the regular Senior Subordinate Judge, Shri Bhandari, who was officiating as the District and Sessions Judge, from the 13th November to the 16th December, 1948.\n5.  Under arrangement made by the High Court, the Senior Subordinate Judge of the place was vested with certain administrative duties, one of such being that he was to draw and disburse month by month the salaries of the Civil Courts establishments at Hoshiarpur and of three other outlying Tahsils of that district, viz., (1) Una, (2) Dasuya, and (3) Garhshankar. The normal procedure for the disbursement of the salaries was to prepare the salary bill of all the four Tahsils and present it to the Treasury on or about the first of the month, the salary for the Sadar Tahsil of Hoshiarpur being drawn in cash and the salaries for the three other Tahsils being draw by means of cash orders authorising payment locally.\n6.  The embezzlement in question relates to the salary bill for the month of November, 1948. Departing from the pre-existing practice, the said salary bill was drawn entirely in cash for all the four Tahsils. This was done under the authorisation of the Subordinate Judge, Shri Gambhir, but the actual cash amounting to Rs. 5, 576/6/- was received from the Treasury by the appellant on the 4th December, 1948. Out of this amount a sum of Rs. 811/1/- for Hoshiarpur Sadar and a sum of Rs. 1, 420 for Garhshankar Tahsil were in fact disbursed within a few days. The salaries of Una and Dasuya, totaling an amount of Rs. 3, 347/5- were not disbursed. On the 14th December, a telegram was received by the District Judge, Hoshiarpur, from the Subordinate Judge, Una, complaining that the civil establishment pay of his Tahsil was not so far received and requesting him to arrange for the same.\n7.  It is the prosecution case that the appellant had misappropriated the amount and that on receipt of the above telegram by the District Judge, he realised the urgency of finding the money somehow and that he accordingly made attempts to raise the money by way of a loan.\n8.  It is in evidence that on the 16th December, he approached two persons, by name Hakim Rai and Lala Shiv Dayal for loans, representing to them that they were required for the subordinate Judge. Failing in these attempts he approached one Seth Brij Lal for the amount of Rs. 3, 350/- also making the same representation. He showed them a 'Ruqqa' from the Subordinate Judge purporting to authorise him to raise the money. On the morning of the 17th Seth Brijlal gave the appellant a bearer cheque on the local Imperial Bank drawn in favour of Shri K. S. Gambhir, Subordinate Judge, by name. The cheque was presented by the appellant on the Bank that very day at 10 a. m. But before the cash was paid to the appellant by the Bank, Seth Brij Lal happened to have gone towards the Court premises and to have met the Subordinate Judge. He informed him that he had issued the cheque to accommodate him. The Subordinate Judge appeared surprised at it and repudiated the same. Consequently Seth Brij Lal rushed up to the Bank and stopped payment, got back the cheque from the bank authorities, and informed the Subordinate Judge. The Subordinate Judge thereafter took a statement from him. This statement and the returned cheque were duly sent up to the Police for investigation.\n9. Suspicion having been thereby aroused against the appellant as regards the handling of the moneys drawn by him, the relevant accounts were immediately checked and it was discovered that the salaries of Una and Dasuya establishment were not disbursed. Accordingly, two complaints, one in respect of a charge u/s. 420 and the other in respect of a charge u/s. 409 of the Indian Penal Code were filed against the appellant, the first on the 17th December at 8-30 p.m. and the second on the 18th December. It would appear also that the appellant left the place on the 17th itself and sent to the Subordinate Judge, an application for leave for a month. He was not found for some days and was actually arrested on the 3rd January, 1949. Meanwhile the entire amount was deposited by the brother of the appellant on the 21st of December, 1948. It may also be mentioned that the Subordinate Judge, Shri Gambhir, contacted the two persons, Shiv Dayal and Hakim Rai, whom the appellant had approached for raising the loan, and took their statements on the 19th December. These statements also were forwarded to the Police.\n10.  The appellant substantially admits all the material facts above stated. His defence is that it was the Subordinate Judge, Shri Gambhir, that misappropriated the amount and that it was at his request and under his specific authority that he made the attempts to raise the sum of Rs. 3, 350 on the 16th and the 17th of December, from the three persons above mentioned. In support of this defence he has examined a witness and produced a 'Ruqqa'. Ex. D. A dated the 4th December, 1948, purporting to bear the signature in English of Shri K. S. Ghambir acknowledging receipt of\n\"a sum of Rs. 3, 500/- out of the pay account of the processing serving establishment from the Civil Nazir for a day\".\n11. The said 'Ruqqa' bears an endorsement of repayment of Rs. 150/- on the 8th December, so that, it is, if true, a receipt for the sum of Rs. 3, 350 said to have been misappropriated. The appellant relies on this in respect of the charge u/s. 409 of the Indian Penal Code.\n12.  So far as the charge u/s. 420 of the Indian Penal Code is concerned, it is his defence that the subordinate Judge gave him on the 16th December another 'Ruqqa', signed by him and specifically authorising him to raise an amount of Rs. 3, 350/- by way of loan on his behalf locally and that he made use of it in his attempts to raise the loan for him. The 'Ruqqa; has not been produced. But it is his case that it was returned to the Subordinate Judge after being shown to Brij Lal. He relies on the evidence of the very witnesses whom he is said to have approached for the loan in support of this defence.\n13.  The trial court as well as the appellate Court have disbelieved the defence and convicted him of both the charges and sentenced him to imprisonment as well as fine.\n14. The High court on revision confirmed the conviction but considered the fines uncalled for and confined the sentences to the imprisonment awarded.\n15. It may be mentioned that after we heard the arguments fully on these appeals, we have been informed that the appellant has served out the sentences of imprisonment. But we have been pressed to express our view on the merits of the case inasmuch as the conviction has affected to official employment of the appellant and has caused him serious loss and dislocation in his life.\n16.  On the above statement of the case it is fairly clear that the appellant must be found guilty of the offences charged unless the defence put forward by him can be held to be made out to extent of its being reasonably probable.\n17.  In the course of the trial certain circumstances relating to this transaction have been elicited which have been variously relied on by the prosecution as well as the defence as being in support of their respective cases.\n18.  The learned Judge of the High Court who dealt with this matter in revision sums up the position as follows in his judgment.\n\"The issue in the cases is quite simple - either Mr. Ghambir is the villain of the piece and Bhagat Ram is a victim of his oppression and is being made to embezzle a sum of Rs. 3, 500./- for Mr. Ghambir's benefit on the 4th of December, and then falsely being accused of trying to cheat the money-lender Seth Brij Lal when in fact the loan was being taken on behalf of Mr. Ghambir, or else Mr. Ghambir is rather a careless officer who allowed himself to be tricked by the accused in the matter of pay bill on the 4th December and was thereafter falsely by accused Bhagat Ram of being the principal offender when Bhagat Ram's embezzlement of Rs. 3, 500/- could no longer be concealed owing to the urgent demands for the pay of the process-serving establishment at Una and Dasuya. 'It can not be denied that there are circumstances in the evidence on the record which point towards both conclusions'. (Underlined (hear in' ) by me)\".\n19.  The learned Judge, however, came to the conclusion that the Courts below have carefully considered the circumstances for against and that they rightly held that it was Bhagat Ram, the appellant who was responsible for the embezzlement and that his efforts to throw the blame on the subordinate Judge, Shri Ghambir, were false.\n20.  On a consideration of the merits of the case, it is necessary to notice at the outset that the conviction of the appellant is not based upon a mere acceptance of the oath of Shri Ghambir denying the alleged misappropriation by himself and the alleged authorisation by him to the appellant to raise money on his credit but on a consideration of the circumstances brought out in the evidence.\n21.  Indeed all the three Courts had severe comments to make against the evidence of the subordinate Judge. The trial Magistrate characterised a material item of the evidence of Shri Ghambir as\n\"a piece of falsehood unworthy of a judicial officer of the standing of Mr. Ghambir\".\n22. The sessions Judge at the conclusion of the judgment stated as follows :\n\"Before concluding I would like to say that though I have exonerated Mr. Ghambir from all complicity in the matter of the misappropriation of Government money. I can not exonerate him from all blame in connection with this affair. He has come in for a good deal of criticism which in my judgment is not altogether unmerited at the hands of the learned trial Magistrate both in regard to the truthfulness of the statement he made in Court and the fact that he arrogated to himself the role of the complainant and the investigator in this case\".\n23.  The learned Judge of the High Court has also substantially agreed with this opinion. The question, therefore, that arises in this case is whether the circumstances brought out are so clear as to show that the defence is false or improbable. In a case like this depending on the conclusions drawn from circumstances, it is well settled that the cumulative effect of the circumstances must be such as to negative the innocence of the accused and to bring the offences home to him beyond any reasonable doubt. This Court has affirmed the proposition in --- 'Hanumant v. State of Madhya Pradesh', 1952 Indlaw SC 89 in the following terms.\n\"It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude very hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused\".\n24.  We cannot help noticing that the Courts below do not appear to have kept this fundamental approach in view. The first question that arises in this case is whether from the circumstances it is so well-established beyond doubt that it is the appellant that has misappropriated the amount in question.\nThere are at the outset two circumstances 'against' him.\n(1) that the amount in question was drawn by him from the Treasury, and\n(2) that it remained unpaid to the parties concerned, viz., to the Civil Establishments at Una and Dasuya. But he asserts that the money was taken from him by the Subordinate Judge himself temporarily for his own purpose. Apart from the alleged receipt, Ex. D. A. which will be dealt with presently, the defence relies on the following circumstances.\n25. It is pointed out that the scope for misappropriation by one party or the other arose in this case by virtue of deviation from the normal practice of drawing the pay of outlying Tahsils by way of cash orders and that this deviation was at the instance of the Subordinate Judge himself and with his full knowledge, but that he now falsely denies all knowledge of the same.\n26.  It is in evidence that the salary bill as originally presented to the Treasury had a note at the top thereof that the amounts for the three outlying Tahsils were to be paid by cash-orders. The bill was returned on the 4th December for correction of a small mistake in the details thereof. The evidence shows that before representing it to the Treasury, the note above referred to was scored out under signatures of the Subordinate Judge at the two ends of the note, thus converting the bill into one for payment of the entire amount thereof in cash to the appellant. A look at the original bill which has been exhibited also shows this. In addition to this authorisation to draw the entire amount in cash, in departure from the pre-existing practice, another circumstances has also been brought out in the evidence. As already stated the Subordinate Judge of Una sent a telegram to the District Judge of Hoshiarpur on the 14th December complaining that the pay of the Civil establishment was not disbursed till then. The District Judge forwarded it to the Subordinate Judge, Shri Ghambir, on that very date marking it \"immediate\". No action appears to have been taken on it by him. All that appears is that certain memos were issued to the other Subordinate Judges of the outlying stations requesting that their respective Nazirs should be sent over to the Sadar station for receiving the salaries of their establishments. This order appears to have been issued as part of a general order, Ex. P. W. 9/A, which is as follows:\n\"Generally salaries of officials in the Mufassil are received late. To avoid this delay it is proposed that Nazirs posted at the Mufassils should personally come to the Sadar along with their respective pay bills in the first week of every month and should not sent anybody else so that they should take with them salary of the establishment. As a rule, pay is drawn at the Sadar on the first day of every month. Hence, all Mufassil Nazirs should bring with them their pay bills within the first week of every month and return the same day after receiving salary of their establishments to avoid cash order or any other trouble. Acquittance roll shall be kept at the Sadar. Nazirs may also take them along with salaries. This is for urgent information.\nORDER\nThis Robkar be sent to the Sub-Judge. Una, with the request that the Nazir may be kindly instructed to comply (with the above instructions) in future.\"\n27.  Thus not only was there a departure from the previous practice by way of drawing cash also for the outlying stations under the specific orders of the Subordinate Judge but when delay in payment was made a matter of complaint no action was taken thereon but there was only an attempt to gain time by adopting the device of appearing to make a general change in the practice for the future and asking the outlying Nazirs to go over to Sardar for receiving the moneys.\n28.  The Subordinate Judge disclaims responsibility for these circumstances, by putting forward the plea that he signed the scoring out in the salary bill merely as a matter of routine and without being conscious of the implication thereof and that the instructions in Ex. P. W. 9/A were issued without his knowledge. He asserts that the appellant alone was responsible in getting his signatures and for issuing these instructions.\n29. It cannot be disputed that under the rules, the responsibility was entirely that of the Subordinate Judge and that it was a serious one and that a disclaimer thereof is not to be lightly accepted. The Punjab Financial Rules lay down as follows :\n\"The head of an office is personally responsible for every pay drawn on a bill signed by him or on his behalf until he has paid it to the person entitled to receive it and obtained his receipt, duly stamped where necessary on the office copy of the pay bill.\"\n30. The Rules and Orders of the Punjab High Court also are as follows :\n\"As the Government is responsible for the due application of all property and money received in accordance with law by any court of justice the officers presiding over such courts must be held directly and personally responsible for any loss caused by failure to observe rules or neglect on their part to exercise supervision and control over the officials subordinate to them in accordance with law and the orders issued by the High Court.......\"\n31.  To negative the plea of the Subordinate Judge that he had no knowledge of the pre-existing practice, evidence has been given of previous instance when this practice was within his notice. This appears from Ex. P. W. 6/D. A and B. W. 6/D.C. When confronted with these documents in cross-examination, he has no answer except to say that he does not remember. Having regard to the matter therein and dates thereof this answer appears to be false. There can also be no doubt that the orders contained in Ex. P. W. 9/A were issued under his specific instructions.\n32. The Subordinate Judge takes advantage of the fact that Ex. P. W. 9/A is signed by P. W. 6 and the matter thereof is in the hand-writing of the appellant. But P. W. 6 deposes that the Subordinate Judge admitted before him that he did instruct the appellant to send for the Mofassil Nazirs to receive payment at Sadar. P. W. 6 also deposes that he made similar admission before Shri Bhandari in the departmental enquiry against the appellant which followed, pending the prosecution. Shri Bhandari's evidence confirms this but the Subordinate Judge, Shri Ghambir, falsely denied having so admitted. If as appears to us to be clear, the pleas put forward by the Subordinate Judge to explain these circumstances are false and if the Subordinate Judge not only authorised cash to be drawn for outside stations instead of mere cash-orders but when the delay in disbursement was specifically drawn to his attention, he did not also take any notice of it as against the appellant and only authorised the issue of instructions to the outlying stations that their Nazirs should be sent over to the Sadar in order to receive the moneys, the reasonable probability is that the non-availability of the money for disbursement by about the 16th December was a situation for which the Subordinate Judge was deliberately and primarily responsible.\n33.  It is as against this background that the defence of the appellant, that he in fact handed over the money to the Subordinate Judge, has got to be considered. As already stated he produced a receipt Ex. D-A in support of it. The Courts below have discredited that receipt. All the three Courts below were inclined to hold that that receipt bears the genuine signature of the Subordinate Judge notwithstanding the denial thereof by him. But, all the same, they held it to be a forgery. The reasons given by the trial Court and the appellate Court for this are not by themselves convincing. The main reason given is that the very look at the piece of paper on which this receipt was written indicates its forged character.\n34. We have had the opportunity of looking at the original 'Ruqqa'. Ex. D. A. ourselves, but do not think that it can be definitely pronounced to be a forgery by appearance. The Courts below were inclined to think that it is on a piece of paper which may have been torn out from a larger sheet containing the genuine signature of the Subordinate Judge in which a blank space was by some chance left above it. But a look at it shows clearly that the suggested blank space is about 2 to 3 inches in size commencing from the normal uncut top line of an ordinary sheet. It is not easy to see how a blank space of that size and in that position was likely to have been left above a genuine signature. The impression of the Court below in this behalf is mere speculation and there is nothing in the evidence of the Subordinate Judge to indicate any such likelihood.\n35.  Another consideration which weighted with the trial Court and the appellate Court in rejecting this 'Ruqqa' is that the Subordinate Judge was very unlikely to have admitted in a piece of paper under his signature that he had taken a sum out of the pay account of the process-establishment even for a day, for that would have meant a complete ruin of his official position and of his further career and that so responsible an officer was not likely to have done so. This consideration is not without force. But the Court do not seem to have appreciated that the same consideration equally weights in favour of the appellant. The trial Magistrate has noted in his judgment that the appellant had an unblemished record of service. The prospect of jeopardizing the same is one which would equally weigh with him to prevent his misappropriating the money for his own use. The reaction on his position and on his future, consequent on such misappropriation, is not the less for him, from his point of view, merely because he is a person in lesser official situation and drawing a lower salary.\n36.  One cannot held feeling that in viewing this circumstances as in others, the Courts below have without justification - unconsciously it may be - adopted differing standards as between the Subordinate Judge and the Civil Nazir. One of the main reason which persuaded the learned Judge of the High Court to accept the view of the Courts below that Ex. D. A. was a forgery was the following. The very next day after the incident took place i.e. on the 18th December, the appellant sent two letters, Exs. P. W. 6/C and P. W. 6/D, one to the clerk, P. W. 6, Ramdas, and another to a process-server, Barkat Ram. In the letter, Ex. P. W. 6/D, he states as follows :\n\"On the 4th December, 1948, he took Rs. 3, 500/- in each and gave a ruqqa. But he took back that ruqqa on the 17th December.\"\n37.  In view of this categorical admission, the learned Judge was inclined to think that the piece of paper that has now been produced into Court as Ex. D. A. could not have been genuine. While this inference is not without force, it must be noticed that the accused who has put forward this 'Ruqqa' in the forefront of his defence throughout and who has admitted the genuineness of the two letters. Exs. P. W. 6/C and P. W. 6/D has not at all been asked to explain how with reference to his previous statement in Ex. P. W. 6/D he was now able to produce it into Court. One cannot imagine what explanation he may have been able to give. Having read the two letters Exs. P. W. 6/C & P. W. 6/D carefully together, we feel that it is not altogether unlikely that the statement in Ex. P. W. 6/D which has been relied on as negativing the genuineness of Ex. P. W. 6/A, may have been due to some confusion at the time, for, we find that in Ex. P. W. 6/C which is much more detailed and categorical as regards the material facts in this case, the only 'Ruqqa' stated to have been returned to the Subordinate Judge is the second 'Ruqqa' of the 16th December & not the first Ruqqa' dated the 4th December, while there is reference to both in the contents thereof. However that may be, it is unnecessary for the purpose of this case to find positively that Ex. D. A. is genuine. It is sufficient to say that we cannot agree with the view taken by the Courts below that it is proved to be a forgery.\n38.  In this context it is also relevant to consider whether there is any indication in the case as to who out of the two was likely to have had need for the money at the time.\n39.  The learned Judge of the High Court very rightly touched on this aspect of the case. But his assumption that there is no indication in the evidence that the Subordinate Judge had any need for the money at the time is not correct. It is in the evidence of P. W. 4, Shiv Dayal, that, when approached by the appellant for a loan on behalf of the Subordinate Judge, he believed it to be genuine because he knew already that the Subordinate Judge, Shri K. S. Ghambir, had purchased land and therefore guessed that the money may have been required by him in that connection. Even in the earliest statement (Ex. P. B. dated the 19th December, 1948), which he made to the Subordinate Judge, Shri Ghambir, he stated as follows :\n\"He (the appellant), however, told me that the Sub-Judge had to repay the amount in respect of land. Since it was within my knowledge that the S. Kartar Singh, Sub-Judge, had purchased land, I guessed that the said Sardar Sahib might have asked for money.\"\nThe Subordinate Judge himself in his cross-examination says as follows :\n\"I offered a bid to purchase two plots of land offered to the refugees by the East Punjab Government for sale at Hoshiarpur on 25-6-48 and 10 per cent of the amount was paid the same day. It was about Rs. 580/- or a little above or less. It was paid on the same day and after a month or so the Government refused to confirm the sale and the money was refunded to the bidders and the balance was never paid. Two plots were purchased by me one in my name and one in the name of my son Kewal Krishan and another plot was purchased by my father-in-law. I had taken to the spot Rs. 300/- I handed over that money to S. Harkishan Singh A. D. M. and my father-in-law gave me a cheque for Rs. 4, 000/-. I think I gave that cheque to the accused for getting it credited into my account with the Punjab National Bank and gave him another cheque either to Bhani Ram my orderly or to the accused and perhaps this cheque was for Rs. 6000/- or 7000/-\"\n40.  All this, no doubt, is far from proving that the Subordinate Judge had any substantial need for money at the time. But such as it is, it gives some indication that there may have been need for him in connection with the land transaction. It does not appear whether there has been any investigation of the circumstances of the Subordinate Judge relating to his land transactions though the statement of Shiv Dayal made to the Subordinate Judge himself on the 19th December indicating this was forwarded to the Police and was before them during investigation. In the circumstances, the remark made by the learned Judge of the High Court that the Subordinate Judge may have had no need for the money at the time cannot be of much weight.\n41. On the other hand it is a matter not without some significance in this context, that no need of the appellant for any finance at the time has even been indicated. The fact that his brother has paid up the entire amount so quickly as the 21st December, obviously in response to the suggestion conveyed in the letter, Ex. P. W. 6/D, must furnish some indication that the appellant could command ready money for a crisis like this and have been able to make it up on his own account if he had himself misappropriated the amount instead of having to go about in the open market trying to raise money by false representations as to the authority of the Subordinate Judge.\n42.  It appears to us, therefore, that the defence put forward by the accused on this part of the case cannot be said to have been disproved or to be so improbable that his guilt must be taken to have been established beyond reasonable doubt.\n43.  Coming to the other part of the case which is the subject matter of the prosecution u/s. 420 of the Indian Penal Code it is clear that in the above view, his defence on this part also cannot be said to be improbable. If the defence of the appellant that the Subordinate Judge took the money from him is accepted as not improbable, it follows that the defence that the attempts to raise the loan were for him and on his authorisation, becomes probable. There is also some evidence in support of this. Hakim Rai, P. W. 5 and Seth Brij Lal, P. W. 14, both definitely say that a 'Ruqqa' bearing the signature of the Subordinate Judge and authorising the raising of a loan on his behalf for a sum of Rs. 3, 350/- was shown to them.\n44. No doubt the 'Ruqqa' itself has not been produced and P. W. 5 says that he was not in a position to identify the signature of the Subordinate Judge. But he does say that he read the 'Ruqqa' carefully and was satisfied that the Judge Sahib really wanted money. In his earliest statement Ex. P/B dated the 19th December, made to this very Subordinate Judge, P. W. 5, sets out the contents of the 'Ruqqa' as follows :\n\"I (i.e. Sardar Ghambir Singh, Sub-Judge) need Rs. 3.350/- which I will repay to you after some days.\"\n45.  Here again it is not either necessary or feasible to hold definitely that this defence has been completely made out. But it certainly cannot be said that it is improbable or false.\n46.  One of the outstanding features of this case is that the defence which has been put forward at the trial is one which has been very elaborately and categorically set out the very next day after incident in Ex. P. W. 6/C. One has only to read the whole of that letter closely and carefully to see that the great deal of detail that has been set out therein was very unlikely to have been an anticipatory false defence. The learned Judges of the Courts below have almost ignored this letter excepting to make a reference to it for the purpose of discrediting the defence.\n47. They do not seem to have realised the significance of the fact that quite a number of details furnished therein have found ample corroboration from the very evidence of the prosecution witnessess Nos. 4, 5 and 14, persons in respect of whom the appellant could not have felt sure at the time when he was setting out the details in his letter. It is somewhat unusual to find the accused in a case like this coming out with his entire defence so early after the occurrence and the same finding substantial corroboration at the trial from the witnesses for the prosecution. The only reason that the learned Judges give for discrediting this is that a period of 24 hours had elapsed by them. Having regard to the nature and contents of the letter and the fact that it has been sent by registered posts the next day from a different place probably at a distance - called Daulatpur as indicated by the stamping on the registered envelope thereof, we are not able to share the view that there was time enough for concocting such a false defence in this letter. To our mind, the very fact that the defence was given out such early stage and that it has, to such a large extent, been corroborated is a strong reason for thinking that the defence was very likely to have been true.\n48.  The Courts below have relied on a number of circumstances which they consider to be against the accused, most of which appear to us inconsequential and to be based on sufficient appreciation of the surrounding situation. For instance the learned Judge of the High Court thinks that\n\"there was no necessity for the Subordinate Judge, Shri Ghambir, to repudiate the whole scheme when confronted by Seth Brij Lal on the 17th December after the loan had in fact been raised and the money was about to be realised which would tide over the embezzlement and give Shri Ghambir a breathing space for some time, if in fact he was a party and indeed the principal figure in the embezzlement\".\nHe treats this as crucial in the case.\n49.  With respect, the learned Judge does not seem to have appreciated that the fact of Brij Lal having issued a cheque in the name of the Subordinate Judge himself makes all the difference. It is obvious that if the embezzlement, however temporary, came to light, the fact of the amount having been raised on the basis of a cheque in his name and his having taken advantage of it in spite of information thereof having been conveyed by Seth Brij Lal himself, would have been a serious matter. The cheque itself would have been fairly strong evidence against him. It is not unlikely that he expected merely cash accommodation which would leave no documentary evidence behind but that when he found that that expectation did not materialise, he saw the danger into which he was running.\n50.  Again the Courts below were inclined to think that if the defence of the appellant was true and he had in his possession a 'Ruqqa' Ex. D. A., acknowledging receipt of the amount of Rs. 3, 500/-, the appellant would have at once put it forward on the 17th itself at the premises of the Imperial Bank when Seth Brij Lal stopped payment on the ground of misrepresentation of the Subordinate Judge's authorisation in this behalf.\n51. But it does not appear to have been appreciated that the question uppermost in the minds of everybody at that time was as to whether he was obtaining the loan on the authority of the Subordinate Judge. For this it was the 'Ruqqa' alleged to have been given to the appellant by the Subordinate Judge on the 16th that would have been material and not the Ruqqa' of the 4th December. If what is stated in Ex. P. W. 6/C namely that the 'Ruqqa' of the 16th December was returned by the appellant to the Subordinate Judge at the suggestion of Seth Brij Lal himself is true, he may well have become panicky on the realisation of the mistake he had committed in so returning it in view of the prosecution for an offence u/s. 420 of the Indian Penal Code that was imminent and probably the reatened.\n52.  There are a number of other similar circumstances relied on by the Courts below into which it is unnecessary to go at length. It is enough to say that in our opinion none of them can be legitimately treated as circumstances which disprove the defence put forward by the appellant. We are clearly of the opinion, as already stated, that the defence was not improbable both as regards the assertion that the money was taken by the Subordinate Judge from the appellant by way of temporary accommodation and as regards the assertion that the Subordinate Judge not being able to put the money back within the expected time and in view of the urgency, authorised the appellant to raise money for him.\n53. In this view it would follow that the offences charged cannot be said to have been brought home to the appellant beyond reasonable doubt. The Courts below in taking the contrary view have failed to keep in mind the fundamental rule stated at the outset relating to the proof of guilt based on circumstantial evidence and have proceeded on conjectures in a case where statedly the circumstances are more or less equally balanced. They have adopted varying standards as between the accused and the subordinate Judge in weighing the circumstances against them. They have also virtually ignored a crucial circumstance in favour of appellant, 'viz.' that he came forward with his defence on the very next day which finds considerable support from the prosecution evidence itself. The interference of this Court to prevent miscarriage of justice is accordingly called for.\n54.  It may be noted that in the above discussion we have ignored the alleged embezzlement of the small extra amount of Rs. 149/- since we consider the appellant's explanation therefor in answer to question No. 7 on 19-11-1949 not to be improbable and the same has also been paid up.\n55.  There is, however, one other aspect of the matter which requires consideration. The very receipt, Ex. D. A., on which the appellant relies shows that the appellant intentionally handed over the money in his custody to the Subordinate Judge for being utilised by him for purposes other than the disbursement of the salaries though it be statedly for a day.\n56. The trial Court has pointed out that even on this view the offence u/s. 409 of the Indian Penal Code stands committed. That is also the view taken by the Sessions Judge on appeal as an alternative.\n57.  The correctness of this view, however, would depend upon whether the Civil Nazir, in drawing the money from the treasury under the authority of the Subordinate Judge, and keeping the same in his custody, can be said to have been entrusted with the money. The exact legal position as to the nature of the custody of the money by the Civil Nazir in such a case has not been clarified. We have been shown no rule which authorises or enables the Civil Nazir in such cases to keep custody of the money with himself pending disbursal. If there was any such rule such custody may well amount to entrustment.\n58.  The only rule that has been placed before us shows that it is the Subordinate Judge that is fully responsible for the drawal and the disbursal. It is he that must be primarily taken to be entrusted with the money. No doubt the Subordinate Judge himself in his evidence says that it is the duty of the Civil Nazir to draw the pay of the subordinate employees and to keep the same in his personal custody along with any other Government money in the safe provided to him which is kept in the Nazir Khan. Also one of the witnesses, P. W. 10, a Civil' Nazir, states that it is incumbent on the Civil Nazir to keep all the Government money lying undisbursed with him in the safe provided by the Government fixed in the Nazir's room.\n59.  The appellant when asked about these matters under section 342, Cr. P. C. in question 1, 2 and 3 makes a distinction between amounts drawn in respect of pay and the amounts drawn on contingent bills and says that it was his duty to keep only contingent amounts with him implying that in respect of salaries it was not his regular duty. In the absence of a clear rule defining this responsibility in this behalf and the nature of his custody of money in such circumstances, we do not think that he can be held to have been entrusted with the custody of the money.\n60. But, inasmuch as he has handed over the money to the Subordinate Judge with the knowledge that it was to be utilised for a purpose other than that for which it was legally intended, he may be said to have abetted criminal breach of trust by the Subordinate Judge. In an appropriate case the conviction may probably have been altered to one of abetment of an offence u/s. 409 of the Indian Penal Code. But in this case an alteration of the appellant's conviction u/s. 409 of the Indian Penal Code into one of abetment thereof would imply a definite finding of guilt against the Subordinate Judge, Shri Ghambir, who is not before us. It would, therefore, be unfair to make such an alteration. We do not accordingly feel called upon to do so in an appeal on special leave.\n61.  In the result Criminal Appeals 46 and 47 of 1953 are allowed and the convictions of the appellant for both the offences with which he was charged are hereby set aside.\nAppeals allowed.\n"}
+{"id": "RzhbuXMZ5f", "title": "", "text": "Earabhadrappa Alias Krishnappa v State of Karnataka\nSupreme Court of India\n\n11 March 1983\nCriminal Appeal No. 669 of 1982. Appeal by Special leave from the judgment and order dated the 29th October, 1981 of the Karnataka High Court in Crl. Appeal No. 241 of 1981\nThe Judgment was delivered by : A. P. Sen, J.\n1. Appellant Earabhadrappa @ Krishnappa is under sentence of death and this appeal by special leave is directed against the judgment of the High Court of Karnataka dated October 29, 1981. The Sessions Judge, Kolar by his judgment dated March 21, 1981 convicted the appellant under s. 302 of the Indian Penal Code for having committed the murder of one Smt. Bachamma, wife of P.W. 3 Makrappa and sentenced him to death. On reference, the High Court has upheld the conviction of the appellant under s. 302 of the Indian Penal Code and confirmed the death sentence passed on him. The appellant has also been convicted by the learned Sessions Judge under s. 302 of the Indian Penal Code for having robbed the deceased of her gold ornaments and clothes and sentenced him to undergo rigorous imprisonment for a term of 10 years.\n2. Upon the evidence presented at the trial it transpired that on the night between March 21 and 22, 1979 the deceased Smt. Bachamma was throttled to death at her house in village Mallur and relieved of her gold ornaments. On the night in question, the deceased Smt. Bachamma as usual served dinner to the family members. After taking his meals, P.W.3 went upstairs to his bed-room, her mother-in-law P.W.2 Smt. Bayamma went to the 'Kana' to keep a vigil while the deceased slept in the hall adjoining the kitchen and her son P.W.4 G.M. Parkash slept in the courtyard of the house. The appellant who had recently been employed as a servant by P.W. 3 slept in a room on the ground floor where the silk cocoons used to be reared and kept. On the 22nd morning at about 6 a.m when P.W.4 went to wake up his mother he found that she was lying dead and he therefore went upstairs and called his father P.W.3. They saw that the deceased had been strangulated to death and relieved of her ornament. Her gold mangalsutra and gold-rope chain were missing so also the gold nose-ring and gold ear-rings. On the right side of the bed was lying the screw of the missing gold nose-ring. There was also lying a towel (M.O. 1) which had been given by P.W. 3 to the appellant for his use, and apparently the deceased has been strangulated with the towel. The iron safe and almirah kept in the hall were found open and bunch of keys which the deceased carried with her was found missing. All the jewellery and cash of Rs. 1700/- kept in the iron safe and six silk sarees kept in the almirah were also found missing. There was a search made for the appellant but he was not to be found either in the house or in the village and he had therefore absconded with the jewellery and valuables.\n3. Intelligence report received by P.W. 26 Abdul Mazeed, Circle Inspector of Police who had taken over the investigation from P.W. 25 Sreenivasa Rao, Station officer Shidalaghatta on 28 March 1980 revealed that the appellant was seen moving in Hosakote and Anekal Taluks and accordingly P.W. 26 along with his staff searched for the appellant in both the taluks but he could not be found, and therefore he encamped at Anekal on that day. On March 29, 1980 he got definite information that the appellant was seen in village Hosahally in Hosakote Taluk and was able to apprehend him at that village at about 2 p,m. On being taken into custody, the appellant made a statement Ex. P-35 leading to the discovery of the ornaments and clothes belonging to the deceased from several places. He first led P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma in village Gudisagarapelly leading to the recovery of four silk sarees (M. Os. 11 to 14) which were seized under seizure memo Ex. P-4. From that place, he took him to village Mattakur, from where he hails, to the house of one Dasappa leading to the recovery of the screw of the missing gold nose-ring (M.O. 5) which was seized under seizure memo Ex. P-7. Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the recovery of a silk saree (M.O.15) which was seized under seizure memo Ex. P-5 and then to the house of P.W. 13 Narayanareddy leading to the recovery of the gold chain (M.O. 6) and a pair of gold bangles (M.OS. 7 & 8) which were seized under seizure memo Ex. P-6. The very day he took P.W. 26 to the house of P.W. 15 Chinnamma in Village Sollepura leading to the recovery of a silk saree (M.O.10) which was seized under seizure memo Ex. P-8. On the next day i.e. on the 30th the appellant took P.W. 26 to the house of P.W. 21 Ramachari in village Hosur who led them to the shop of P.W. 22 Palaniyachar leading to the recovery of a pair of gold earrings (M.Os. 3 & 4) and a gold ingot (M.O. 9) which were seized under seizure memo Ex. P-15. The seized articles have all been identified by P.W. 3 Makrappa and his mother P.W. 2 Smt. Bayamma and son P.W. 4. G.M. Prakash as belonging to the deceased.\n4. The appellant abjured his guilt and denied the commission of the alleged offence stating that he had been falsely implicated. He also denied that he ever made the statement Ex. P-35 or that the stolen articles were recovered as a direct consequence to such statement.\n5. In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the fact and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. The chain of circumstances brought out by the prosecution are these:\nThe appellant who hails from village Mattakur was a stranger to village Mallur ostensibly in search of employment. He falsely stated his name to be Krishnappa and gave a wrong address stating that he belonged to a nearby village. The securing of employment by giving out false name and wrong address shows that he had some oblique motive in his mind. He obtained employment with p.w. 3 and gained his confidence and was allowed to sleep in a room on the ground floor where the silk cocoons were kept. He thus became familiar with the places where the inmates of the house used to sleep and where the jewellery, cash and other valuable belongings used to be kept i.e. in the iron safe and almirah kept in the hall adjoining the kitchen.\nIt appears that the appellant had pre-planned the commission of robbery. Earlier in the evening he went to P.W. 6 Narayanappa and borrowed Rs. 2 and thereafter went to the toddy shop of P.W. 7 Smt. Anasuyamma and took liquor. On the night in question he reached the 'kana' at about 9 p.m. and was reprimanded by P.W. 2 for being late. Upon reaching the house he went upstairs in an inebriated state and told P.W. 3 that he no longer wanted to serve and he should settle his accounts. P.W. 3 told him to come in the morning and take his wages. It therefore appears that the appellant had made up his mind to leave the village.\nOn the next morning i.e. on the 22nd at about 6 a.m. it was discovered that the deceased Smt. Bachamma had been strangulated to death. The gold ornaments on her person and in the iron safe had been stolen. There was a search made for the appellant but he was not to be found anywhere. Near the dead body of the deceased was lying the blood-stained towel (M.O. 1) given by P.W. 3 to the appellant for his use with which the deceased had apparently been strangulated. The appellant had therefore absconded from the scene of occurrence after committing the murder and robbery.\nAfter the appellant had suddenly disappeared from the house of P.W. 3 with the gold ornaments and other valuables, there was a frantic search made by P.W. 25, Sreenivasa Rao and P.W. 26 Abdul Mazeed at various places and he was absconding till March 29, 1980 until he was apprehended by P.W. 26 at village Hosahally in Hosakote taluk at about 2 p.m. On being arrested after a year of the incident on March 29, 1980, the appellant made the statement Ex. P-35 leading to the recovery of some of the stolen gold ornaments of the deceased and her six silk sarees from different places and they have all been identified by P.Ws. 2, 3 and 4 as belonging to the deceased.\nThe appellant falsely denied the recoveries and could offer no explanation for his possession of the stolen articles.\nIt appears from the prosecution evidence that after the commission of the murder and robbery, the appellant had with him the incriminating articles and taken them to his native place Mattakur where he disposed them of to several persons. The testimony of P.W. 26 reveals that in consequence of the information given by the appellant he recovered the missing screw of the gold nose ring (M.O.5) from one Dasappa in village Mattakur, that of P.W,12 Guruvareddy that appellant had sold to him the silk saree (M.O.15) for Rs. 150/-, and that of P.W.13 Narayanareddy discloses that the appellant had sold to him a gold rope chain (M.O.6) and a pair of gold bangles (M.Os. 7&8) for Rs. 2000/-, The testimony of P.W.8, Smt, Yallamma, sister of the appellant, hailing from village Gudisagarapally show that the appellant had given her four silk sarees (M.Os.11 to 14), and that of P.W.15 Smt. Chinnamma of village Sollepura, who was known to the appellant from before, shows that the appellant gave her the silk saree for Re. 1/- when she refused to take his gratis. The testimony of P.W. 21 Ramachari of village Hosur shows that appellant brought with him a pair of gold ear- rings and a gold ingot and wanted to sell them saying that he was hard-pressed. This witness took him to P.W. 22 Palaniyachar and the appellant sold the gold ingot (M.O.9) for Rs. 330/-and a pair of gold ear-rings (M.Os. 3&4) for Rs. 500/-.\n6. From this evidence it is apparent that the appellant while he was absconding moved from place to place trying to dispose of the stolen property to various persons.\n7. The learned Sessions Judge as well as the High Court have come to the conclusion that the circumstances alleged have been fully proved and they are consistent only with the hypothesis of the guilt of the accused. We are inclined to agree both with their conclusion and the reasoning. The chain of circumstances set out above establishes the guilt of the appellant beyond all reasonable doubt\n8. There is no controversy that the statement made by the appellant Ex. P-35 is admissible under s. 27 of the Evidence Act. Under s. 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. As explained by Sir John Beaumont in Pulukuri Kottaya v. Emperor:\n\"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact\".\n9. For the applicability of s. 27 therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. In the present case, there was a suggestion during the trial that P.W. 26 had prior knowledge from other sources that the incriminating articles were concealed at certain places and that statement Ex. P-35 was prepared after the recoveries had been made and therefore there was no 'fact discovered' within the meaning of s. 27 of the Evidence Act. We need not dilate on the question because there was no suggestion made to P.W. 26 during his cross- examination that he had known the places where the incriminating articles were kept. That being so, the statement made by the appellant Ex. P-35 is clearly admissible in evidence.\n10. In Jaffer Hussein Dastgir v. State of Maharasetra, the portion of the statement with reference to which this question arose read as follows:\n\"I will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway Station at III Class Waiting Hall to whom I have given a Packet containing diamonds of different sizes more than 200 in number.\"\n11. The only question for decision in that case before the Court was whether the aforesaid statement made by the accused was admissible in evidence by virtue of s. 27 of the Evidence Act, the diamonds having been found with the person named. In the facts of that case the Court came to the conclusion that the police had already known that the diamonds were with the person named by the accused with the result that there was no fact discovered by the police as a result of the statement made by the accused. However, it was held clearly that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence.\n12. In the present case, some of the material portions in the statement Ex. P-35 which distinctly relate to the fact discovered read:\n\"If I am taken to Gudisagarapally, I shall get the four silk sarees.\"\n13. At village Gudisagarapally the appellant took P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma who produced four silk sarees (M.Os. 11 to 14) which were seized under seizure memo Ex. P-4. P.W. 8 Smt. Yallamma states that she is the sister of the appellant and that he had given to her the four silk sarees. It was suggested that the police had not only planted P.W. 8 as a sister of the appellant but also the four silk sarees in question, but there is no basis for this assertion. Then the statement Ex. P-35 recites:\n\"If I am taken to native place Mattakur, I shall get one gold nose ring without screw .. one silk saree..... one gold rope chain and one pair of gold ear rings.\"\n14. At village Mattakur from where he hails, the appellant took P.W. 26 to the house of one Dasappa leading to the recovery of the screw of the missing gold nose ring (M.O. 5) which was seized under seizure memo Ex. P-7. Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the recovery of a silk saree (M.O. 15) which was seized under seizure memo Ex. P-5. He then took P.W. 26 to the house of P.W. 13 Narayanareddy leading to the recovery of a gold rope chain (M.O. 6) and a pair of gold bangles (MOs. 7&8) which were seized under seizure memo Ex. P-6. The prosecution could not examine Dasappa because he was dead during the trial. P.W. 12 stated that the appellant had sold him a silk saree for Rs. 150 while P.W. 13 stated that he had sold him a gold rope chain and a pair of gold bangles for Rs. 2000/-. The statement Ex. P-35 contains similar recitals leading to the recovery of the other incriminating articles, viz (1) A silk saree (M.O.10) given by the appellant to P.W. 15 Smt. Chinnamma of village Sollepura whom he knew from before, for a token price of Re. 1/ -; (2) A pair of gold ear rings (M.Os. 3&4) and a gold ingot (M.O.9) from P.W. 22 Palaniyachar which he had purchased from the appellant for Rs. 830.\n15. Apart from the question of sentence, two other contentions are raised, namely:\n(1) There is no proper identification that the seized ornaments belonged to the deceased Smt. Bachamma; and\n(2) the presumption arising under illustration (a) to s. 114 of the Evidence Act, looking to the long lapse of time between the commission of murder and robbery and the discovery of the stolen articles, should be that the appellant was merely a receiver of the stolen articles and therefore guilty of an offence punishable under s. 411 of the Indian Penal Code and not that he was guilty of culpable homicide amounting to murder punishable under s. 302 as well. We are afraid, none of these contentions can prevail.\n16. Our attention was drawn to the testimony of P.W. 13 Narayanareddy who, during his cross-examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use. Nothing really turns on this because P.W. 2 Smt. Bayamma, mother-in-law of the deceased, her husband P.W. 13 Makarappa and son P.W. 4 G.M. Prakash have categorically stated that the seized ornaments belonged to the deceased Smt. Bachamma. There is no reason why the testimony of these witnesses should not be relied upon particularly when P.W. 2 Smt. Baymma was not cross-examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. Even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sarees (M.Os. 10 to 15). It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.\n17. This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to s. 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of P.W.3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P.W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under illustration (a) to s. 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particulary when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.\n18. Finally, there remains the question of sentence, it was cruel hand of destiny that the deceased Smt. Bachamma met a violent end by being strangulated to death by the appellant who betrayed the trust of his master p.w. 3 and committed her pre-planned cold-blooded murder for greed in achieving his object of committing robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bedroom on the fateful night. The appellant was guilty of a heinous crime and deserves the extreme penalty. But we are bound by the rule laid down in Bachan Singh v. State of Punjab where the Court moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the 'rarest of the rare' cases. The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial conscience. A sentence or pattern of sentence with fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality-will bring to naught the sentence of death provided by s. 302 of the Indian Penal Code. The test laid down in Bachan Singh's case (supra) is unfortunately not fulfilled in the instant case. Left with no other alternative, we are constrained to commute the sentence of death passed on the appellant into one for imprisonment for life.\n19. Subject to this modification in the sentence, the appeal fails and is dismissed.\n"}
+{"id": "phTExIqqB9", "title": "", "text": "Balwinder Singh v State of Punjab\nSupreme Court of India\n\n21 February 2001\nCr. Appeal No. 75 of 2001\nThe Order of the Court was as follows:\n1.  The appellant stands convicted under three sections of three different enactments. Principal among them is Section 5 of the Terrorist and Disruptive Activities (Prevention) Act (TADA).\n2. The other provisions are Section 25 of the Arms Act and Section 5 of the Explosives Act. On the whole a sentence of rigorous imprisonment of five years had been imposed on him besides a fine of Rs. 1000/-. He filed this appeal as of right under Section 19 of the TADA.\n3.  During the course of arguments we came across certain deficiencies which crept in the trial proceedings. One is that the deposition of Babu Ram (we are not sure whether Babu Ram was in the rank of P.W. 1 or P.W. 2), remains unsigned by him. How it happended is not explained to us by the learned counsel for the respondent as he is also taken by surprise when this was brought to his notice. A plea was made that the entire record purported to be the testimony of Babu Ram should be kept aside on account of that deficiency. Such a course will not be consistent with the principles of criminal justice.\n4. We, therefore, thought it more expedient to remit the case to the trial Court for filling up the said deficiency, for which Babu Ram has to be recalled and re-examined afresh.\n5.  The second aspect is, two documents purported to be affidavits signed by Shrimati Bimal Kaur Khalsa and Shri Kamal Jit Singh are seen marked as 'A' and 'B'. Apparantly they were not proved by the defence.\n6. Mr. Jaspal Singh, learned Senior Counsel made an endeavour to show that they may be relied on by this Court as evidence. Without adverting to the said contention, we adopt a course that the defence may be given an opportunity to prove those documents, for whatever worth they may be.\n7.  For the aforesaid reasons, we set aside the conviction and sentence passed on the appellant and remit the case to the trial Court for disposal of the trial afresh. We make it clear that we are not ordering a de-novo-trial. For the prosecution Babu Ram alone need be recalled for examination afresh. Other evidence already recorded will remain.\n8. Thereafter the Court is to put questions to the accused under Section 313 of the Code of Criminal Procedure with reference to the evidence of Babu Ram so recorded. The trial should proceed to the next stage of calling upon the accused to enter on his defence. If the accused wants, he can avail himself of the said opportunity to prove the aforesaid two documents purported to be the affidavit and any other evidence which he may wish to adduce.\n9.  The appellant will remain in jail (judicial custody) during the trial. But this is subject to a rider that if he makes any application for bail during the remaining part of trial, it is for the trial Court to consider that application untrammelled by any observation made by this Court.\n10. It is needless to point out that the trial Court shall dispose of the case as expeditiously as possible.\nThis appeal is disposed of accordingly.\nAppeal disposed of.\n"}
+{"id": "zHzmA4KR1V", "title": "", "text": "C. Chenga Reddy and Others v State of Andhra Pradesh\nSupreme Court of India\n\n12 July 1996\nAppeal (Cr.) 52-105 of 1993\nThe Judgment was delivered by: Dr. A. S. Anand, J.\n1.  This batch of appeals by special leave arise out of the Judgment and Order of High Court of Andhra Pradesh dated 27.11.1991. The appellants in these appeals arc Executive Engineers, Deputy Executive Engineers, Section Officers and contractors of Nellore North Division, Nellore South Division and Gandipalem Project Division. They alongwith a Superintending Engineer (since dead) and various con-tractors were tried for offences under Sections 120-B, 420/34, 377A/34 IPC and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act and on being found guilty were sentenced to different terms of imprisonment for the said offences. The circumstances under which the cases arose are.\n2.  A Call Attention Motion was moved in the Andhra Pradesh Legislative Assembly in 1981 alleging large scale fraud, irregularities and illegalities committed in the execution of jungle clearance work by the engineers and contractors in various divisions of Nellore District during 1978-1981. Consequent upon the Call Attention Motion, the Government directed the then Deputy Engineer-in-Chief. Shri L.R. Kapoor PW. to examine and inquire into the allegations. He visited Nellore and after conducting a preliminary inquiry submitted his report on 17.4.1981 pointing out various illegalities and irregularities committed by the Engineers, The Secretary, Irrigation Department of the Government of Andhra Pradesh also directed the then Chief Technical Examiner.\n3.  Mohd, Rahamathullak-han PW, to make an inquiry in to the allgations made on the floor of the assembly during the Call Attention Motion. It further transpires that the Government of Andhra Pradesh issued G.O. Ms. No. 313 Irrigation and Power Department dated 20.7.1981. Ex. P1. appointing Shri N.V.M. Krishna, the then Chief Engineer, for carrying out departmental enquiry into the works allegedly carried out in three Divisions, namely, Nellore North Division, Nellore South Division and Gandipalem Project Division and the role of the concerned engineers. Chief Engineer Shri Krishna PW 1 submitted his report highlighting the irregularities and illegalities as noticed by him.\n4.  The case which had acquired importance on account of the call attention motion in the legislative Assembly was then entrusted by the Government to the And Corruption Bureau (for short ACB) for inquiry. The ACB officials conducted an inquiry and on 1.5.1982 submitted a report. Ex. P.30 to the Director Anti Corruption Bureau with a request to register a case against the appellants. Consequently, crime case No. 2/ACB/NLR/82 for various offences, as already noticed, came to be registered against the appellants. The investigation was taken in hand by an Inspector of Police ACB in May 1984. On the request of the ACB, some members of the engineering Staff of the department were deputed to assist it for purposes of collecting technical data etc. during the investigation. Site inspections were also carried out to find out whether any work of jungle clearance had in fact been done in 1979 in the three divisions and the area in which jungle clearance work could have been done in the year 1979 and the question of making payments in respect of the work allegedly done. After completion of investigation, charge sheets were filed by the ACB against the appellants.\n5.  The Learned Special Judge, after trial of the case, found the appellants guilty of various offences and imposed varying terms of imprisonments, including fine on different counts. The substantive sentences were, however, directed to run concurrently. Against their conviction and sentence the appellants filed appeals in the High Court of Andhra Pradesh. The High Court by its judgment dated 27.111991, confirmed the conviction of the appellants on different counts but reduced the sentence of imprisonment of the engineers to the period \"till the rising of the Court\". The sentence of fine and imprisonment in lieu, thereof, as imposed by the trial court, was, however, maintained. The appellants have since paid the fine and have undergone the sentence till the rising of the Court. By special leave they have filed these appeals.\n6.  For facility of reference, we may mention that against the judgment of the Special Court in CC No, 1-8/87, 35 appeals were filed in the High Court by 43 appellants therein. In this Court, the criminal appeals arising out of that case are Criminal Appeal Nos. 72 74/93 etc. All these cases relate to Gandipalem Project Division. Conviction and sentence imposed in CC. 1/86 and the connected cases before the Special Court, led to the filing of 44 appeals in the High Court by 71 appellants therein.\n7.  The Criminal appeals filed by them in this Court arc Criminal Appeal 'Nos. 128-130/93 etc. All these relate to Nellore North Division. In respect of Nellore South Division, 68 appellants preferred criminal appeals in the High Court against their conviction and sentence as recorded by the Special judge and those cases from the hatch of Criminal Appeal Nos. 99-101/93 etc. in this Court. The Contractors had filed separate appeals in the High Court and Criminal Appeal No. 153/93 and 170-71/93 etc. in this court arise out of the appeals filed by the contractors.\n8.  Learned counsel for the parties submitted before us that since the material facts, nature of evidence and the questions of law are similar in all set of appeals, for the sake of convenience, four representative appeals one from each of the three Divisions, besides an appeal by the contractors may he taken up for consideration by us. Consequently, on their suggestion Criminal Appeal Nos , 72-74/93. Criminal Appeal Nos. 128-130/93. Criminal Appeals Nos. 99-101/93 and Criminal Appeal. No. 1.53/93 are taken up for consideration, as representative appeals. There are one or two other Appeals (Criminal Appeal 170-171/93), involving slightly different factors, and we shall deal with those also during the course of the judgment. All the appeals are, therefore, being disposed of by this common judgment.\n9. As a normal rule, this Court does not in exercise of its jurisdiction u/art.l36 of the Constitution of India, while hearing appeals by special leave, reappreciate the evidence, where two courts have concurrently appreciated the evidence and arrived at findings of guilt of the accused persons. However in the light of the submissions made at the bar, with a view to satisfy our judicial conscience, we have examined some of the evidence led in the cases and in particular that evidence 'which appears to have principally influenced both the trial court and the High Court to convict the appellants. We may point out here that in all these cases, there is no direct evidence available on the record connecting any of the appellants with the commission of the crime alleged against them. The entire case hinges on circumstantial evidence and unfortunately neither the trial court nor the High Court have catalogued the circumstances relied upon by the prosecution against the appellants, except for broad generalisations on the basis of the charges framed against them.\n10.  From the prosecution case, as emerging out of the evidence of PW 1 to PW 21 and documents Ex. P1 to Ex. P 34 , it transpires that Irrigation Circle, Nellore comprises of four Divisions, namely,\n(i) Nellore North Division,\n(ii) Nellore South Division\n(iii) Gandipalem Project Division and\n(iv) Special Investigation Division.\n11.  During 1978-81, Shri Duggi Reddy was posted as the Superintending Engineer of Irrigation Circle, Nellore. He was having control over all the four Divisions .Different Executive Engineers, Deputy Executive Engineers, Assistant Executive Engineers, Sec-lion Officers and other staff were posted in the four divisions to look after the affairs of their respective divisions. In these appeals we are concerned with the allotment of jungle clearance work in the first three divisions of Nellore Irrigation Circle only.\n12.  The work of the clearance of the jungle is normally required to be undertaken departmentally through Luscars, since it is treated as maintenance work, but it is the case of the prosecution that in these cases work for clearance of jungles was allegedly allotted to contractors on nomination basis in 1979-80 but without any such work having actually been done it was \"represented\" that jungles had been cleared and payments made to the contractors, which amount was in fact misappropriated by the departmental officials and the contractors.\n13.  The total expense involved was Rs. 1,15,663 for 12 +1 works in the Nellore North Division ; Rs. 1,95,108 for 17 works in the Nellore South Division and Rs. 26,068 for 8 works in the Gandipalem Project Division. According to the prosecution ease, the Executive Engineers were not authorised to allot work on nomination basis to the contractors without inviting tenders but with a view to bring each of the 'contracts' within their pecuniary jurisdiction, they 'broke' the contracts into smaller amounts and without any work of jungle clearance having been actually undertaken payments for the work shown to have been made which were actually misappropriated by the accused thereby causing loss to the State Exchequer and wrongful gain to themselves.\n14.  The prosecution, at the trial also tried to establish that \"less work\" was done though payments were made for \"excessive work\" and the difference in the payments was misappropriated. There is no dispute that though the jungle clearance work was supposed to have been done in 1979-80, the matter only came to light, through the call attention motion in the Legislative Assembly in 1981 and even then it was not till 1984 that any physical inspection of various sites was undertaken, except some random checks made by PW Shri Krishna in 1982. The substratum of the prosecu-tion case has emerged out of the inspections carried out in 1984.\n15.  With this general background, we shall now take up for consideration each of the representative appeals, as already observed. Our findings shall apply to all the appeals arising out of the concerned division.\nCRIMINAL APPEAL NOS. 72-74 OF 1993. (Gandipalem Project Division):\n16.  The substratum of the charge in these appeals, which relate to Gandipalem Project Division, is that with dishonest intention of misappropriating Government funds, the appellants floated work for so called clearance of Prickly Pier Jungle on the reach 15/0 to 15/4 mile on Kanpur Canal but without actual execution of that work, made payment of Rs, 2869 to the contractor, Dunji Ramaiah. The said amount was misappropriated and wrongful loss was caused to the Government of Andhra Pradesh. Five Officials, besides a contractor, were arrayed in the case as accused. While Al and A2, were at the relevant time serving as Executive Engineers, A3 and A4 were serving as Deputy Executive Engineers (formerly Assistant Engineers) and A5 was working as the Section Officer. Shri D.B. Duggi Reddy, Superintending Engineer, who was also arrayed as an accused, died and the case against him abated.\n17.  The contractor Dunji Ramaiya died during the pendency of the case in the trial court and the case against him also abated. As already noticed after the call attention motion in the State Assembly, an inquiry had been ordered into the allegations and Shri L.R. Kapoor, Deputy Engineer-in-Chief (Irrigation P.W. was appointed as the Inquiry Officer. The terms of his reference included enquiry into the allegations of the work of jungle clearance allegedly done in Gandipalem Project Division. In his report, while dealing with jungle clearance work of the Kanpur Canal he stated:\n\"While the necessity or otherwise for jungle clearance cannot be established at this distant date, more so without inspections of the sites of works it appears that there was no justification for giving the above works on nomination. Even in the report accompanying the estimates, the urgency for the execution of works has also not been explained. Jungle clearance for the following works was done by the Executive Engineer, Gandipalem Project Division:\nJungle clearance along the allignment of Thikavatapadu branch channel from 3.8 km to 8.8 km Divisional Register No. 72 of 1980-81 -Rs. 9800.\nJungle clearance along the allignment of Ambapuram Branch Channel from km. 2.7 to 5.6 km Divisional Register No. 347/KC of 1979-80 Rs, 8100.\nThe above two estimates are for conducting site surveys of the branch channels of the Kanpur Canal Scheme, Jungle clearance was done before doing surveys and levelling to enable the preparation of plans and estimates for taking up the execution of the said works. The estimate indicate the urgency for execution of the works and hence there appears to be some justification for taking up these works on nomination. The necessity or otherwise of the jungle clearance cannot be established at this distant date more so in the absence of site inspection.\"\nWhile summing up he observed:\n\"The Executive Engineers, Nellore South Division, Nellore North Division and Gandipalem Divisions are answerable for having sanctioned estimates without inspection of the works in utter disregard to the instructions issued by the superintending Engineer vide Annexure No. 23 and 24\".\n18.  Subsequently, Sh. N.V.M.. Krishna Chief Engineer (Investigation) PW conducted an inquiry and in respect of Gandipalem Project Division, in his report, he pointed out certain irregularities in the matter of allotting the jungle clearance work to 'chosen contractors' on nomination basis. He submitted his report to the Government. It appears that the matter was simultaneously entrusted to the ACB also who after making a preliminary inquiry submitted their report dated 1.5.82 to the Director Anti Corruption Bureau and sought his permission to register case against the accused and others on the allegation of making 'excessive payments'.\n19. According to the preliminary report of ACB excessive payments had been made for jungle clearance work and that irregularities had been committed in allotting the work on nomination basis. At the trial, however, the prosecution sought to establish that no work of jungle clearance had been carried out at all and that the entire amount alleged to have been spent for jungle clearance was in fact dishonestly misappropriated by the appellants, in collusion with the .contractor.\nThe appellants were put on trial on the following charges:\n\" That you the abovenamed A-l to A-5 and one D.B. Duggi Reddy formerly Superintending Engineer of Nellore, during the year 1979-80 conspired to float the work known as Prickly Pier jungle clearance on the banks of Kanpur Canal from mile 15/0 to 15/4 situated at a distance of 2 miles West of South Mopur, Nellore District in violation of established rules under P.W.D. Code with intent to cheat the Govt. of A.P. and that the said act was done in pursuance of the agreement between you all who thereby committed an offence punishable u/s. 120 B of the Indian Penal Code and within my cognizance;\nSecondly, that you the above0named A-l to A-5 herein being the public servants employed as formerly Executive Engineers, .Deputy Executive Engineers and Section Officer of Gandhiupalem project division respectively during the period between 1979-80 at the workspot i.e. on the hanks of Kanpur canal from mile 15/0 to 15/4 as mentioned in charge No. 1 above by corrupt and illegal means in abuse of your official position as such public servants obtained for yourselves pecuniary advantage to the extent of Rs. 2,869 and thereby committed an offence punishable u/s. 5(2) read with 5(l)(d) of the Prevention of Corruption Act, 1947 and within my cognizance :\nThirdly, that you the abovenamed accused Nos. 1 to 5 at about the same time, place and date as mentioned in charge No. 1 above cheated the Govt. of A.P. with regard to the work of prickly pier jungle clearance at the banks of Kanpur canal to a tune of Rs. 2,869 and that you thereby committed an offence punishable u/s. 420 r/w 34 of I.PC. and within my cognizance ;\nAnd fourthly, that you the abovenamed A-l to A-5 alongwith deceased D.B. Duggi Reddy at about the same date, time and place as slated in charge No. 1 above being the public servants of P.W.D. Department of Govt. of A.P. wilfully and with intent to defraud the govt. of A.P. created false records with regard to the work mentioned in charge No, 1 above which belonged to the Govt. and you all thereby committed an offence punishable u/s. 477-A r/w. 34 of the I.P.C. and within my cognizance.\"\n20.  After considering both oral and documentary evidence, the trial court, convicted the appellants for various offences with which they had been charged. The appeals filed by the appellants, except for reduction of the sentence was also dismissed by the High Court. In its order dismissing the appeals, the High Court opined:\n\"  during the year 1979-80. A-l to A-5 alongwith one late D.B. Duggi Reddy conspired to flout the work known as 'prickly pier jungle clearance' on the banks of Kanpur canal from mile 15/0 to 15/4 situate at a distance of 2 mile west of South Mopur, Nellore district in violation of the established rules under F.W.D. Code with intention to cheat the Government of Andhra Pradesh;\nThat A-1 to A-5 being public servants obtained for themselves pecuniary advantage to the extent of Rs. 2,869 by corrupt and illegal means by abuse of the official position ;\nThat A-l to A-5 cheated the Government to the tune of Rs. 2,869 without doing the jungle clearance work in flagrant disregard of the Codal rules ; and\nThat A-l to A-5 wilfully and with an intention to defraud the Government created false records with regard to the prickly pier jungle clearance work on Kanpur canal from mile 15/0 to 15/4.\"\n21.  We have heard learned counsel for the parties and examined some of the evidence relied upon by the courts below, with a view to find out whether prosecution has established that \"no work\" of clearance of Prickly Pier jungle was done at all and the amount was misappropriated by preparing false documents.\n22.  From the evidence of PW 1 Shri NVM Krishna Chief Engineer (Investigation) who had conducted the second inquiry we find that he admitted that he did not inspect any work under Kanpur Canal and that his observations as reflected in the report Ex, P2 were not applicable to any of the works on the Kanpur Canal. PW 4 Sheikh Mehboob Sharif, admitted in his crossexamination that during their inspection of the site in 1984 they had noticed signs of the removal of prickly pier jungle on the left bank of Kanpur canal.\n23.  The prosecution has led no evidence to show that after 1979 any work had been done for removal of prickly pier jungle on the banks of Kanpur canal and therefore from the evidence of PW 4, it follows that 'some' work of clearance of prickly pier jungle at the banks of Kanpur canal had been undertaken prior to the inspection of the site by the inspecting team. It was rather impossible to have found out in 1984 whether any work or the extent of it, had been done in fact for clearance Of the prickly pier jungle in 1979-80 i.e. 4/5 years ago and PW 7 Shri Raja Rao. Commissioner of Project, rightly admitted that in case of jungle clearance after the completion of work, it is not possible to know either the quantum of work or the extent of jungle clearance by site inspection carried out after some time.\n24.  So far as the prosecution case that false and fictitious records relating to the preparation of estimates, allotment of work on nomination basis, drawing up of the agreements and making payments is concerned, we find that there are ample admissions available in the prosecution evidence itself by various witnesses to the effect that all the estimates and agreements including the data sheets for the estimates had been checked earlier and that no mistakes or irregularities had been found therein. Reference in this connection may be made to the statement of PW 8 Syed Ismail, who clearly deposed that he had checked the estimates and agreements etc. and forwarded the same and had there been any mistake in the same, he would have reported the same to the sub Divisional Officer for rectification but no such action was taken because no mistakes was observed. According to Shri BVG Krishna Murthy, PW 11 who had scrutinised the bill relating to jungle clearance work from miles 15/0 to 15/4 and had put. his initials in the measurement book also he had not noticed any irregularity in the hill and that the corrections found in the estimates and other documents Accompanying the estimates stood explained.\n25. It appears that while subordinate officers had proposed clearance of larger areas, the concerned Executive Engineer had corrected the estimates by reducing the area of jungle clearance and hence the corrections. That the Executive Engineers had the powers to correct the estimates prepared by the Section Officers has been categorically admitted by PW 12 K. Ram Mohan Rao in his Statement at the trial. It, therefore, appears to us that the trial court drew on its imagination to hold that the corrections made in the estimates and other documents established that the entries had been 'manipulated' to show that jungle clearance work had been undertaken when it had not been so effected and that the corrections etc. had been made by the Executive Engineers without actually visiting the site and without making any actual verification at the spot. There is no material available on the record to support the above observations. None of the prosecution witnesses deposed that the appellants did not inspect the site before preparation or sanction-ing of the estimates for the clearance work.\n26.  The trial court, as well as the High Court, it. appears did not also correctly appreciate the true scope and ambit of Ex. P 4(a), the statement accompanying the estimates to clear the prickly pier jungle on the banks from miles 15/0 to 15/5 of Kanpur Canal, The statement accompanying the estimate records that the estimates provide for clearing of the prickly pier jungle on the banks of the canal, both right and left, \"which is obstructing the jeep track\" Whether or not the clearance of jungle on the right bank was, necessary for removing obstruction of the jeep track was immaterial and what was relevant was whether the jungle clearance work had been undertaken or not. Making payment for clearance of jungle on the right bank, which was not necessary may give rise to an inference that the departmental officials had been negligent and did not act in the best interest of the department but from that action of the officials, it is not possible to draw the conclusion that the official committed the offence alleged against them.\n27.  The prosecution evidence reveals that the clearance of prickly pier jungle on the left and the right bank was also undertaken with a view to properly maintain the canal banks and to prevent their breaches during the rainy season besides facilitating the removal of obstruction of the jeep track. The High Court conjecturised while observing that since clearance of the right bank was not necessary for clearing the view of the jeep track \"its clearance was not done\". This is against the weight of evidence on the record.\n28.  There is not an iota of evidence led by the prosecution to prove that no work at all was done for clearance of prickly pier jungle on the reach 15/0 to 15/4 mile on Kanpur Canal in 1979-80. As a matter of fact, the prosecution has led evidence to show that some work had been done but it is alleged that payments had been made for excessive work. As already noticed during the investigation, the inspecting team had noticed existence of signs of removal of prickly pier jungle on the banks of the canal. There :being no evidence to show that after 1979 some work had been undertaken for removal of prickly pier jungle on any of the banks of the canal, a reasonable inference to be drawn would be that some work had in fact been done and therefore the charge against the appellant that no work had been done is belied by the prosecution evidence itself.\n29. In view of the admission of PW 7, Shri Raja Rao. Commissioner of Projects, that in case :of jungle clearance, after the completion of work, it is not possible to know the exact quantum of work on inspection of the site years later, the notes made by the inspecting learn in 1984 lose all their relevance and significance.\n30.  The inferences drawn by the courts below that the estimates had been prepared by A-5 without actually visiting the site ; that A-3 had forwarded the estimate without actual verification at the spot and that A-1 had made corrections without any physical verification at the spot are based on no evidence. The courts below have relied upon surmises rather than any evidence to draw such inferences, because none of the prosecution witnesses deposed that the appellants did not inspect the site before preparation and sanctioning of the estimates and preparing bills in respect thereof.\n31.  Section Officer A-5 had proposed jungle clearance on the right bank as well as on the left bank because he had found that jungle was obstructing the jeep track. The courts below relied upon the entries in the log book Ex, P-19 to hold that the verification purporting to have been done at the site was false. Neither the driver of the vehicle, nor anyone else from the department was examined at. the trial to prove the entries in the log book.\n32.  The correctness of the log book has remained rather doubtful. Even otherwise the absence of entry in the log book, which admittedly was not being maintained by the accused, cannot give rise to an irresistible conclusion that the engineers of the department did not visit the site for actual verification. The vagueness regarding showing nature of the work or its details or mentioning that in some places the jungle to be cleared was \"light jungle\" and not \"prickly pier jungle\" in the measurement book also cannot lead to a conclusion, much less an irresistible one, that the wrong mentioning had been made in the agreement regarding the nature of the work because A-3 had not visited the site while verifying the actual clearance of jungle on 7.7.79. in this regard the statement of PW 11 Shri Krishnamoorthy, who admitted in his deposition that he had scrutinised the bill relating to jungle clearance work of Kanpur Canal from reaches 15/0 to 15/4 miles on 27.8.79 assume significance particularly because PW 11 had also put his initials in the measurement book, Ex. P6 at page 32 relating to the relevant bill.\n33. There is, therefore, no acceptable material on the record from which a conclusive inference may be drawn to the effect that the measurements found recorded in the measurement book Ex. P6 had not been actually taken at the site of the work but were manipulated by the concerned officials sitting in the office, though there may be a strong Suspicion that it was so done. Such a strong suspicion, however, cannot take the place the proof to fasten criminal liability on the appellants.\n34.  A careful perusal of the report Ex. P4(a) shows that the proposal that had been prepared was for jungle clearance on both the banks of the canal and the mere fact that subsequently the inspecting team found that no clearance was actually required on the right bank does not militate against the probability that even though not required, yet jungle clearance was also done on both the banks i.e., the right and left bank, as proposed because of error of judgment or carelessness of the departmental officials. If, the work was done, the question whether it was required to be done or not. could not be used as an incriminatory circumstance against the appellants to draw an irresistable inference of their guilt after excluding the hypothesis of their innocence. We are unable to subscribe to the observation:\n\"that there was no necessity of clearance of jungle over the said bank as the jungle could not damage any part of the canal and therefore the proposal for clearance of the jungle had been made with a dishonest intention of boosting up of the area and to draw more funds from the Government.\"\n35.  The observations are rather conjectural and are against the weight of evidence on. the record. Again, in vain have we searched through the evidence for support for the observations of the courts below that the depth of the Kanpur Canal was only 15 ft, and the length of jeep track only 203.16 sq. mts. There is no evidence on the record to that effect and on the contrary, the evidence of PW 12 Shri K. Rammohan Rao is to the effect that the depth of Kanpur Canal at the reach between 15/0 to 15/4 miles ranges from 6.33 ft. to 9.74 ft.\n36.  The inspecting agency did not take any measurements, but adopted a method of calculating the area by multiplying the assumed width of the jeep track with the length of the canal to hold the length of the jeep track to be only 203.16 sq. mts, According to the case of the appellants, they had prepared the estimates and sanctioned the work of jungle clearance for the entire reach taking into account both the banks, inclusive of the area obstructing the jeep track. In our opinion, the trial court quite unjustifiably found that the appellant had failed to deduct the area occupied by the rough stone inlet. No evidence was led to show that the rough inlet, was in existence prior to 1979 on the bank of Kanpur canal.\n37.  The mere, fact that the investigating agency in 1984, alter a period of five years, found that a rough stone inlet was in existence was inconsequential particularly since PW 12 Shri K. Rammohan Rao admitted during his cross-examination that he could not say as to when the rough stone inlet found on the left bank had in fact been constructed. There was, thus, no acceptable material on the record to establish the existence of the rough stone inlet prior to or in 1979, when jungle clearance work was done and no adverse inference could have been drawn against the appellants on account of the existence of rough stone inlet on the left hank of the canal in 1984. ft was the fact situation existing in 1979-80 which was relevant and not the situation as existing in 1984.\n38.  One other circumstance which has been relied upon by the prosecution against the appellants is that jungle clearance work is only maintenance work, but, it had been allegedly allotted on nomination basis to the selected contractor, without recording any reasons for considering the work to be of an urgent nature. This circumstance, however, in our opinion, by Itself cannot be construed to be an incriminating circumstance consistent only with the hypothesis of the guilt of the appellants. The evidence on the record shows that jungle clearance work was taken up on urgent :basis as maintenance of the canal, to avoid breaches during the rainy season on account of the directions issued by the Superintending Engineer and the Chief Engineer in that behalf besides for clearing the jeep track.\n39.  The appellants, according to their learned counsel, made allotment of work to the contractor on nomination basis by virtue of the powers conferred upon the Executive Engineer in that behalf under G.O. Ms. 1007 dated 5.11.1976. It was argued that vide G.O. 69 dated 1.2.1978, it had been decided to allot 15% of the work to the weaker sections of the society and the allotment of the work to Shri Dunji Ramaiah, contractor, who admittedly belonged to the weaker section of the society, on nomination basis, was fully justified.\n40.  The evidence of PW 5, shows that entrustment of work on nomination basis was permissible under Note I, A.P. P.W.D. Code also. As per G.O. Ms. No. 1007, TR & B dated 5.11.76, the limit of monetary value fixed for entrustment of work on nomination basis to an Executive Engineer is Rs. 20,000.\n41. The Superintending Engineer, Nellore in his Memo. 599 dated 14.4.80 had advised the Executive Engineers not to allot works costing more than Rs, 2500 on nomination basis without his prior approval. It was stated that if the cost of work exceeded Rs. 2500 it was required to be ratified by the Superintending Engineer. A-l had himself issued a circular, Ex, P 17 to all the Assistant Engineers working under him and to the draftsmen directing them not to propose nomination for work costing more than Rs. 2500. A-l in his statement recorded u/s. 313 Cr.P.C. stated he had issued circular Ex, P-17 but took the unacceptable plea that the circular had not been circulated and communicated to his subordinates and therefore it was not followed.\n42.  The finding of the courts below that A-1 to A-4 violated the codal provisions as well as circulars and instructions issued from time to time are amply supported by the circumstances and other material on the record. However, the non-furnishing of reasons for entrusting the work on nomination basis up to the value of Rs. 20,000 cannot be used as a circumstance of an incriminating nature against the appellants to establish any 'dishonest' intention on their part in view of the directions issued by the superior officers to take up the work urgently because of the ensuing monsoon season. Even the splitting up of work into parts, so as to allot it on nomination basis to bring it within the authorised powers of the executive engineers, which was against the Codal provisions and the circulars issued on the subject from time to time cannot be said to have been done with the necessary \"dishonest intention\".\n43. In our opinion, whereas the appellants are established to have violated codal provisions besides departmental circulars and instructions regarding nomination of contractors and allotment of work to them, yet, those circumstances cannot be said to be consistent only with the hypothesis of the guilt of the appellants or connect them with the crime alleged against them, in fairness to learned counsel for the appellant we must observe that he did not challenge the findings regarding administrative lapses and :breach of codal provisions but emphasised that for those lapses they could not be held guilty of the criminal offences alleged against them.\n44.  The conclusions arrived at by the courts below that the official appellants did not follow the codal provisions and that they have committed gross financial irregularities and administrative lapses in the matter of clearance of the prickly pier jungle under Kudimaramath Rules and other relevant provisions cannot be faulted with but nonetheless, the same cannot be construed as \"incriminating circumstances\" to fasten criminal liability on the appellants.\n45.  It appears to us that the trial court and the High Court were greatly influenced by the technical report Ex. P-11 prepared by FW 12 Shri K. Ram Mohan Rao to hold the appellants guilty. In this report, PW 12 inter alia pointed out various irregularities committed by the appellants while preparing the estimate, nomination of the contractor for the. execution of the work and drawing up of the agreement with the contractor etc. He also opined that the corrections had been made in the estimate Ex. P 4 with a view to conceal facts and project a false fact-situation.\n46. This report is sheet anchor of the prosecution case but in our opinion it could not have been relied upon as it was dearly inadmissible in evidence and the opinion of the High Court to the contrary is not acceptable. PW 12 Shri K. Ram Mohan Rao was serving in the Irrigation Department when he was entrusted with the task of assisting the investigating officer of ACB during the investigation in this case. Perusal of Ex. P 32 shows that he had been issued specific orders to report to the ACB and assist the investigation agency.\n47.  He prepared his report Ex. P-12, during the course of the investigation and submitted it to PW 19, the investigating officer on 30th June, 1984 after the FIR in this case, Ex. P-24, was registered by PW 19 on 17.5.1982. PW 12 was examined by the investigating officer after he had Submitted the report and his report, forms a part of his statement recorded by ACB u/s. 161 Cr.P.C Under these circumstances the observations contained in report Ex. P 11, which technically and factually form a part of the statement of PW 12, recorded during the investigation of the case by PW 19 is, hit by S. 162 Cr.P.C.\n48.  No statement made by any person to a police officer during the course of investigation can be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting a witness as provided u/s. 145 of the Evidence Act. Admittedly, Ex. P 11 has not been used for any of the purposes envisaged by S. 145 of the Evidence Act but as a substantive piece of evidence.\n49.  The opinion of the courts below that the statement contained in Ex. P 11 was not hit by S. 162 Cr.P.C. on the ground that PW 12 was an expert within the meaning of S. 45 of the Evidence Act and his report Ex. P 11 submitted to the investigating officer was as such not hit by S. 162 Cr.P.C. is clearly erroneous as PW 12 does not qualify as an expert within the meaning of s. 45 of the Evidence Act. Even in his own deposition, he has no where stated about his technical 'qualifications', \"expertise\" or \"experience\" in this particular field to render \"expert opinion\".\n50. There is no material on the record to show that PW 12 possessed any particular skill which entitled him to \"draw conclusions\" relevant to the matter entrusted to him by the investigating officer. We are, therefore, of the opinion that PW 12 is not an 'expert' within the meaning of S. 45 Evidence Act and Ext. P 11 was hit by the bar of S. 162 Cr.P.C. and was inadmissible in evidence and could not have been relied upon in the criminal trial to fasten criminal liability on the appellants. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.\n51.  On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet. non of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellant and wholly incompatible with their innocence.\n52.  In Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), [1980] 3 SCC 110 1979 Indlaw SC 574, under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and con-tractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the concerned officials and contractors, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper.\n53.  That because of the actions of the appellants in breach of codal provisions, instructions and procedural safeguards, the Stale may have suffered financially, particularly by allot-ment of work on nomination basis without inviting tenders, but those acts of omission and commission by themselves do not establish the commission of criminal offences alleged against them. We may reiterate that once the report, Ext, P 11, is ruled out of consideration as inadmissible, then it is not safe to rely on the mere impressions of the witnesses to hold the appellants guilty of the offences alleged against them.\n54.  The prosecution has failed to establish that in 1979-80, no work of jungle clearance in the Gandhipalem Project Division was undertaken and that false and fabricated documents were prepared with a view to misappropriate government funds. The prosecution has not even been able to establish that less work of jungle clearance was undertaken but payment was shown to have been made for excessive work and some amount out of the payments made for the work were thus misappropriated by the appellants in connivance with the con-tractors. The conviction and sentence imposed against the appellants (which had been reduced by the High Court to a token sentence) under the circumstances cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine paid by the appellants shall be refunded to them.\nCriminal Appeal Nos. 99-101/93 (Nellore South Division):\n55.  The three appellants in these appeals were at the relevant time serving as Executive Engineer, Deputy Executive Engineer and Section Officer respectively in the Nellore South Division, The allegations against them and D.B. Duggi Reddy, Superintending Engineer (since dead) relate to the clearance work undertaken in the year 1979 in respect of Juliflora Jungle at North Mopur, Large Tank 1800 M to 2000 M in Kovur Taluk, Nellore District, The contract with regard to the clearance of the jungle work was given by the accused Executive Engineer, to the accused contractor on nomination basis for which payment was made on alleged completion of the clearance work though in fact no payment should have been made as 'no work' was done and the entire amount was misappropriated by the appellants and the contractor. The contractor has filed a separate appeal. The accused were put to face their trial on the following charges:\n\" That you, the above named A1 to A4 herein and one D.B. Duggi Reddy (deceased Superintending Engineer) during the year 1979-80 conspired to float the work known as Clearing and uprooting the jungle at North Mopur, Large tank from 1800 M to 2000 M in Kovur Taluk, Nellore District in violation of established rules under PWD Code, with intent to cheat the Govt of A.P. and that the said act was done in pursuance of the agreement between you all and thereby committed an offence punishable u/s, 120-B of the Indian Penal Code and within my cognizance.\nSecondly, that you the above named Al to A3 herein being public servants employed as formerly Executive Engineer. Dy. Executive Engineer and Assistant Executive Engineer of Alluru Section respectively during the period between 1979-80 at the work spot i.e. North Mopur large lank from 1800 M to 2000 M mentioned in charge No, 1 above by corrupt and illegal means in abuse of your official position as such public servants obtained for yourselves or for A4 pecuniary advantage to the extent of Rs. 13,164 and thereby committed the offence punishable u/s. 5(2) r/w. 5(l)(d) of the Prevention of Corruption Act, 1947 and within my cognizance,\nThirdly that you the above named Accused Nos. 1 to 4 herein at about the same time, place and date as mentioned in charge No. 1 above cheated the Govt. of A.P. with regard to the work of clearing and uprooting the jungle at North Mopur large tank from 1800 M to 2000 M to a tune of Rs. 13,164 and that you thereby committed an offence punishable u/s. 420 r/w. 34 of the IPC and within my cognizance.\nAnd, fourthly, that you the abovenamed accused Nos. 1 to 4 herein along with deceased D.B. Duggi Reddy at about the same date, time and place as stated in charge No. 1 above being the public servants and contractor respectively of P.W. Department of the Govt. of A.P. wilfully and with intent to defraud the Govt. of A.P. created false records with regard to the work mentioned in charge No. 1 above which belonged to the Government and you all thereby committed an offence punishable u/s. 477-A r/w. 34 of IPC and within my cognizance.\"\n56.  After trial, the learned Special Judge recorded the finding that no work with respect to the clearance and uprooting of the stumps of Juliflora jungle was undertaken at North-Mopur large tank and that the entire contract had been given surreptitiously and payments misappropriated and convicted the appellants and the contractor for offences under Sections 120-B JPC, 420/34 IPC, 477 A/34 IPC as well as for offences under S. 5(2) read with 5(l)(d) of the Prevention of Corruption Act. The accused were sentenced as follows :\n\"A.I to A.4 to undergo RI for a period of one year each for the offence u/s. 12GB IPC; RI for a period of two years each and to pay a fine of Rs, 1000 each i/d to undergo RI for 4 months each for the offence u/s. 420 IPC r/w. 34 1PC; RI for a period of two years each for the offence u/s. 477-A IPC r/w. 34 IPC and further sentenced Al to A4 to undergo RI for a period of 2 years each and to pay a fine of Rs. 1000 each i/d to undergo RI for 4 months each for the offence u/s. 5(2) r/w. 5(l)(d) of Prevention of Corruption Act, The sentences shall run concurrently.\nI further direct that the sentence imposed on Al in this case is ordered to run concurrently with the sentence of imprisonment imposed on him in CC. 9/86 to 21/87 and 23/87 to 25/87. The sentence of imprisonment imposed on A2 in this ease is order to run concurrently with the sentence of imprisonment imposed on him in CC. 9/87 to 14/87 and 19/87 to 21/87. The sentence of imprisonment imposed on A3 in this case is ordered to run concurrently with the sentence of imprisonment imposed on him in CC. 1/86.\"\n57.  The High Court in appeal by the appellants against their conviction arid sentence held:\n\"On a reappraisal of the entire evidence on record, both oral and documentary, and on a consideration of the conclusions reached by the trial court, this court feels that the prosecution has made out the case under Sections 120-B, 420 read with 34 and 477-A read with 34 IPC against Al to A4 and under S. 5(2) read with 5(1) (d) of the Prevention of Corruption Act against Al to A3, and the convictions thereunder are confirmed........Hence, AI and A3 are sentenced for the offences under Section 120-B, 420 read with 34 and 477-A read with 34 IPC and S. 5(2) read with 5(l)(d) of the Prevention of Corruption Act till the rising of the Court and each of them is further sentenced to pay additional fine of Rs. 1000 (rupees one thousand) under each count in addition to the one imposed by the Court below u/s. 420 read with 34 IPC and S. 5(2) read with 5(l)(d) of the Prevention of Corruption Act. in default to suffer R.I. for three months under each count.\nTime granted for payment of fine is one month from today. As regard the sentence to be inflicted on the contractor, A4 who has been charged and tried for the offences along with Al to A3, who are Government employees the same yardstick cannot be used. With the active connivance and A4 alone, Al to A3 have committed the offences and A4 assisted them by subscribing him-self to the agreement and other documents. So, A4 must be dealt with severely. Hence, A4 is sentenced for the offences under Section 120-B, 420 read with 34 and 477-A read with 34 IPC to suffer rigorous imprisonment for six months under each count and the sentence of fine imposed by the learned Special Judge u/s. 420 read with 34 IPC is confirmed. All the sentences of imprisonment shall run concurrently.\"\nThe High Court then arrived at the following conclusions:\n\"During the year 1979-80, Al to A4 along with one late D.B. Duggi Reddy conspired to float the work known as clearance and Uprooting of jungle on North Mopur large tank from 1800 M to 2000 M 1/1 mile to 1/2 mile of Kovur taluk in Nellore district, in violation of the established rules under PWD Code, with intention to cheat the Government of Andhra Pradesh;\nAl to A3 being public servants, obtained for themselves and for A4 pecuniary advantage to the extent of Rs. 13,164 by corrupt and illegal means by abuse of their official position;\nAl to A4 have cheated the Government to the extent of Rs, 13,164 without doing the work of clearance and uprooting of jungle on North Mopur large tank, Kovur taluk, in flagrant disregard of the Codal rules; and\nAl to A4 wilfully and with intention to defraud the Govern-ment, created false records with regard to the work of clearance and uprooting of jungle on North Mopur large tank.\"\n58.  Prosecution in support of its case examined 24 witnesses while the appellants examined two in their defence. The prosecution relied upon a number of documents Ex. P1 to Ex. P31.\n59. Like the case of the appellants connected with Gandipalem Project Division, the case against the appellants herein is also based only on circumstantial evidence. Apart from the oral evidence, the prosecution relied upon five basic documents viz., estimate (Ex. P3); the contract (Ex.P4); the bill (Ex. P7); payment order (Ex. P8) and the technical report given by PW 8 (Ex, P10) to connect the appellants with the crime. According to the prosecution, no work at all had been done for jungle clearance at North Mopur and Exs. P3, P4, P7 and P8 were fabricated and manipulated with the dishonest intention of appropriating funds amounting to Rs. 13,164.\n60.  The circumstances (as can be culled out from the judgment of the courts below) relied upon by the prosecution and accepted by the courts below to convict the appellants are :\n(i) that the clearing and uprooting of jungle at North Mopur could not be given on nomination basis and that the tenders which should have invited for allotment of that work were not floated with a view to misappropriate Government funds;\n(it) that no reasons were given for allotting the work on nomination basis in breach of codal provisions;\n(iii) that the work was allegedly started by the contractor before issuance of work order;\n(iv) that incorrect measurements were recorded in the measurement book to cancel the extent of actual work done;\n(v) that A2 and A3 made endorsements on the estimate documents :without conducting actual verification at the spot;\n(vi) that no proper estimate for earth work or for filling of the pits was prepared;\n(vii) that the anticipated credit for stumps as shown was wrong.\n61.  On the basis of the aforesaid circumstances, the prosecution at-tempted to establish that no work of jungle clearance was done and that Ex. P3, P4, P7 and P8 were manipulated and fabricated with dishonest intention of misappropriating funds of the Government.\n62. Reliance was placed on the statement of PWs 1.1, 12 and 13 in support of the circumstances that no jungle clearance work was done and that the modus operandi adopted by appellants to give the work on nomination basis ignoring the codal provisions and instructions on the subject was only to cover the fraud committed by the appellants in connivance with the contractor. PW 11 deposed that jungle clearance work is not of an urgent nature implying thereby that it could not have been alloted without floating tenders on nomination basis. To the same effect is the evidence of PW 12 who went on to add that normally Jungle clearance work is taken up under the category of maintenance work which is undertaken departmentally through laskars. PW B also deposed that out of the funds allotted for maintenance work, jungle clearance work-is required to be undertaken.\n63.  The prosecution, however has led no evidence to show that the jungle clearance work was undertaken departmentally in 1979 or that no jungle clearance was re-quired to be undertaken in 1979.\n64. From the evidence on the record it transpires that premeasurement of the work was done on 8.1.1,79; estimate was prepared by A3 on 22.11.79; a proposal to allot work on nomination lo A4 was made. The proposal was forwarded by A2 to Al on 25.11.79. A1 approved the proposal on 15.12.79 to allot the work on nomination basis to A4. PW 6 in his statement admitted that he had examined Ex. P3 and Ex. P4 in 1979-80 and that ex-fade he had not found anything wrong in the procedure followed for allotment of jungle clearance work on nomination basis and therefore he did not point out any irregularity at that, time. Even PW 5 who had scrutinised the estimate contained in Ex. P3 in 1979 deposed that he had not found anything wrong therein.\n65.  The evidence of FW 5 and PW 6, thus, does not support the prosecution case that the documents were fabricated and entire amount misappropriated. Thought PW 11, 12 and 13 deposed at the trial that jungle clearance work is not work of an urgent nature and is only maintenance work but we find that none out of them deposed that the work being maintenance work, it was actually carried out by laskars of the department.\n66.  The assertion of PW 8 in his technical report, Ex. P'10, that there were no signs of jungle clearance when he visited the site in 1984 cannot lead to the conclusion, must less an irresistible conclusion, that in 1979-80 jungle had not been cleared at the site. There is ample evidence on the record to show that jungle clearance work had been done in 1979-80. The statement of PW 17 Assistant Engineer, shows that jungle clearance work was being done in 1979-80. If that be so, it was obligatory on the part of the prosecution to lead evidence to show as to who carried out the work. No evidence has been led to show that the work of jungle clearing was done by departmental laskars and the very fact that work had been done shows that the prosecution allegation that no work was done has remained unsubstantiated.\n67. So far as allotment of work on nomination basis is concerned, the prosecution does not dispute that urgent works could be allotted on nomination basis. The Chief Engineer admittedly had issued instructions to have the jungles cleared In view of expected monsoon and therefore the urgency of the matter, is quite obvious. There is also no reliable evidence available on the record to show that work done was less than the work paid for as is alleged by the prosecution.\n68.  The report Ex, P10 submitted by PW 8 which is the sheet anchor of the prosecution case, for the reasons which we have already given while dealing with Criminal Appeal of the Gandipalem Project Division not admissible .in evidence. All the reasons given therein apply to Ex. P10 with equal force and we need not repeat the same. Even otherwise report Ex. P10, prepared after visiting the site in 1984 to demonstrate the position as was supposed to be existing at the site in 1979-80 is hardly of any value.\n69. According to the prosecution case, the extent of work shown to have been done by the contractor for which payment was allegedly made to him was not possible to be done in the short period in which it was shown to have been done and this fact exposed the fabricated nature of the documents. This plea of the prosecution is again based on the inadmissible-technical report Ex, P10. In our considered view PW 8 adopted a defective method to work out the details of the work done and on that basis no reasonable conclusion is possible to be drawn to the effect that no work of jungle clearance was in fact done in 1979-80.\n70.  Ex. P1 and P2, panchnamas, relied upon by the prosecution and accepted by the courts below for ascertaining the time taken for clearing the jungle on the basis of work done by a labourer in a day do not help the prosecution. Apart from the fact that it is doubtful whether Ex. P1 and P2, the panchnamas, prepared during the investigation of the case can be used as substantive piece of evidence, since none of the labourers who are alleged to have done the clearing work were examined at the .trial, we find it even otherwise an unsatisfactory manner of determining the time taken for work of jungle clearance. How much work one labourer can turn out would depend upon a number of factors like his skill, energy, experience etc. ? Generalisation as has been done by the prosecution and accepted by the courts below is neither fair nor proper.\n71.  The prosecution also sought to establish that the accused had no power to allot work on nomination basis and that they adopted this mode only as an eye wash to cheat the Government and misappropriate the funds; The High Court and the trial court failed to properly appreciate the evidence on the record in this behalf also while drawing an inference of criminality. The courts below while accepting this plea of the prosecution failed to appreciate that vide GOMS No. 1007 dated 5,11.76 the Executive Engineer had been empowered to entrust work on nomination basis upto the value of Rs. 20000 and that GOMS No 1007 was in force at the relevant time. Mr. L.R. Kapoor, Commissioner Command Area Development Government of A.P. PW 10, stated:\n\"GOMS No. 1007, dt. 5.11.76 relating to the powers of the Executive Engineers in entrusting the works on nomination is still in force. I have referred to this GO as Ann. 29 in Ex. P.16. This GO is not yet repealed and it is still in force. Under this GO the Executive Engineer can entrust the work on nomination basis costing Rs. 20000.\"\n72.  That the appellants ignored certain other instructions on. the subject cannot lead to an irresistible inference that they did so with dishonest intention only.\n73.  That the appellants adopted a wrong mode and procedure in making two separate items in the estimate for clearing the jungle above the ground level and for uprooting the stumps has not been accepted even by the Board of Chief Engineers vide its proceedings dated 21.7.84, May be, as alleged by the prosecution clearing of the jungle and up-rooting of stumps may be one operation and making two separate payments, that is one for clearance of jungle above the ground level and the other for uprooting and removing the stumps may be objectionable and against the codal provisions but in the absence of any evidence to show that two separate payments were in fact not made to the contractor it is not possible to say that the charge of conspiracy has been established. The statement of PW 20 Superintending Engineer who admitted that separate payments for up-rooting the stumps of Juliflora are also permissible under Rule III(2)(f) of Standard Schedule of Rates lends support to the defence plea rather than to the prosecution version. PW 12 and PW 16 have given a lie to the prosecution case as projected at the trial and none of those witnesses was declared hostile.\n74.  It appears to us, Chat influenced by the inadmissible report Ex. P10, the courts below concluded that the appellants had committed the offence alleged against them. None of the witnesses except PW 8, who as already noticed, was not competent to depose in that behalf before he visited the site only in 1984 and not prior thereto have stated that no work of jungle clearance was done at the site and the allegation with regard to less work having been done is based upon calculations made five years later by PW 8, which does not afford conclusive evidence against the appellants.\n75. It is a .matter of common sense and even the prosecution witnesses have accepted that it was impossible to know in 1984 whether jungle clearance .work had been carried out and if so to what extent in the year 1979 on the basis of an inspection carried out five years later in the years 1984. The maximum that can be said against the appellants is that they committed some indiscretion in the matter of allotment of jungle clearance work on nomination basis and also violated codal provisions in the matter of preparation of estimates, drawing up of the agreements and making payments. These acts of omission and commission do give rise to a strong suspicion that the appellants so acted with a view to misappropriate Government funds but suspicion, however, strong cannot take the place of proof. The prosecution has in our opinion failed to establish the case against the appellants beyond :a reasonable doubt. The conviction and sentence imposed upon the appellants under the circumstances, cannot be sustained and we accordingly accept the appeal and set aside their conviction and sentence. Fine shall be refunded to the appellants.\nCRIMINAL APPEAL NOS. 128-130 OF 1993 (NELLORE NORTH DIVISION):\n76.  These appeals arise out of Crime Case No. 1 of 1986 and relate to the clearance of Juliflora jungle on Krakatur small tank .on the reach 0/0 to 1450 meters.\n77.  The prosecution case against the appellants A2 (Executive Engineer), A3 (Deputy Executive Engineer) and A4 (Assistant Executive Engineer), who were tried along with Al Superintending Engineer (since dead) and A5 the contractor who has filed a separate appeal, is that with dishonest intention of misappropriating Government funds, the accused floated work called clearance of Juliflora jungle and up-rooting slumps having width of 50 cms. to 100 cms. on the reach 0/0 to 1450 metres on Krakatur small tank and without execution of that work misappropriated an amount of Rs 5169 allegedly paid to the contractor A5 by cheque by entering into a criminal conspiracy with him. The matter like the cases of Gandipalem Project and Nellore South Division came to be entrusted for investigation, after the Call Attention Motion was moved in the State Assembly in 1.981, alleging large scale bungling and embezzIement of government funds in various Division of Nellore District for clearance of jungles etc. !o the ACB. We have already referred to the history of the case in the beginning of the judgment and need not repeat the same.\n78.  PW 7 Sh. L.R.. Kapoor, Commissioner Command Area. Develop-ment, Govt. of Andhra Pradesh who was appointed to enquire into the allegations made on the floor of the House after holding an inquiry made the report in which he expressed his opinion thai jungle clearance work ought to have been given by calling tenders instead of resorting to allotment on nomination basis and that the procedure adopted by the appellants was against the codal provisions. Subsequently, the Chief Engineer Irrigation Department (Investigation) Sh, N.V.M, Krishan PW 9 who also made an inquiry submitted his report pointing out various irregularities committed in the preparation and sanctioning of the estimates; nomination of the agencies; conclusion of the agreements in violation of A.P, PWD Code, AP Financial Code and AP Public Works Accounts Code besides departments, instructions and circulars. Subsequently, the case was entrusted to ACB and the investigating officer of the ACB took up the investigation in 1984. At the request of the ACB, assistance of engineering staff was provided and the departmental official assisting ACB submitted his report during the investigation of the case and the accused were sent up for trial. Following charges were framed by the learned Special Judge on 17.1.1987:\n\"That you above named A-2 to A-5 and one D.B. Duggi Reddy (deceased A-l) during the year 1979-80 conspired to float the work known as juliflora jungle clearance at Krakatur Small Tank situated at a distance of 1 KM West of Krakatur in violation of the village rules under P.W..D. code with intent to cheat Government of Andhra Pradesh and that the said act was done in pursuance of the agreement between you all and you all thereby committed an offence punishable under Section 120-B of the Indian Penal Code and within my cognizance: Secondly that you above named accused A-2 to A-4 being servants employed as former Executive Engineer, Deputy Executive Engineer and Section Officer of Nellore North Division respectively during the period between 1979-80 at the work spot i.e., Krakatur small Tank mentioned in charge No, 1 above by corrupt an illegal means in abuse of your official position as such public servants obtained for yourselves or for A-5 and yourself pecuniary advantage to the extent of Rs. 5,169 and thereby com-milted the offence punishable under S. 5(2) r/w. S. 5(l)(d) of the Prevention of Corruption Act 1947 and within my cognizance;\nThirdly that you the above named accused A-2 to A-5 at about the same time place and date cheated the Government of A.P. with regard to the work of Juliflora jungle clearance at Krakatur small Tank to a tune of Rs. 5,169 and that you thereby committed an offence punishable u/s. 420 (PC r/w. 34 of the Indian Penal Code and within my cognizance;\nFourthly that you the above named accused A-2 to A-5 along with deceased Al by name D.B. Duggi Reddy at about the same date, time and place as stated in charge No. 1 above being the public servants and contractor of P.W.D. Department of Government of A.P, willfully and with intent to defraud the Government created false records with regard to the work mentioned in charge No, 1 above which belonged to the Government and you thereby committed an offence punishable under section 477-A IPC ,r/w. 34 of the Indian Penal Code and within my cognizance. And I hereby direct that you all be tried by me on the above said charges.\"\n79.  Prosecution in support of its case examined 28 witnesses besides relying upon a number of documents. The accused on the other hand examined two witnesses in defence. The trial court at the conclusion of the trial held that no work with respect to clearance of Juliflora jungle up-rooting of the stumps was undertaken at the site and the amount was misappropriated by the accused and convicted and sentenced the appellants to various terms of imprisonment and fine.\n80.  The appeals of the appellants, except in the matter of sentence, failed in the High Court.\n81.  Like the cases of Gandipalem Division and the Nellore South Division, in this case also no evidence has been led by die prosecution to show that no work of jungle clearance was at all undertaken. PW 8 and PW 9 who deposed that jungle clearance work had been done in 1979-80, were declared hostile, nonetheless we find that the prosecution has led no other evidence to show that in fact no work had been done at the site in question. Since, the prosecution witnesses admitted in their evidence that some work had been done, the charge of conspiracy must necessarily fail. Recourse has been made to surmises and conjectures by the courts below to hold that no work was found to have been undertaken at the site when it was inspected in 1984. PW 7 Sh. L.R, Kapoor and PW 19 Shri N.V.M. Krishna who had inquired into the matter before the case was entrusted to the ACB have categorically admitted at the trial that they had not visited the site in question at the time of conducting the inquiry.\n82. According to Sh. L.R. Kapoor, PW 7 not only he did not visit the site in question but he did not even examine a single witness at the time of conducting inquiry relating to the work at the site. The prosecution has alleged and tried to establish that there had been flagrant violations of the codal provisions in regard to preparation and sanctioning of estimates, nomination of the agency and allotment of work on nomination basis, preparation of the bills and passing of the same pursuant to an agreement wrongly drawn up between the parties. According to the courts below, the commencement of the work by the contractor before drawing up the agreement between the parties exposed the criminal conspiracy between the accused.\n83.  It appears to us that the courts below like in the case arising out of Gandipalem Project Division and Nellore South Division allowed suspicion to lake the place of proof to convict the appellants. No evidence has been led by the prosecution to show the reaction of the department to the allegations made on the Floor of the House in 1981 itself. Till 19S4, after the case was registered no inspection of the site was undertaken by the ACB, No examination of the site except for some random check by Mr. Krishna in 1982 was also done and, thus, we find that for a period of almost five years nothing was done to verity the correctness or otherwise of the allegations relating to jungle clearance work. Could the sites have depicted the state of jungle and the presence of Juliflora or its extent as it existed in the year 1979 during the inspection made in 1984 ? The answer to us appears clearly to be in the negative.\n84.  Even the Chief Engineer and the Superintending Engineer admitted during their crossexamination that it was not possible to know in 1984 if Juliflora jungle actually existed at the site in question in 1979-80 or not. We fail to understand as to why after the case had been entrusted to the ACB in 1982 itself they took no steps to visit the site and ascertain about the situation of the site till J984, The prosecution witnesses have admitted that there were jungles of Juliflora on the bank in 1979.\n85. There also does not appear to be any justification for the prosecution to now allege that the area from which jungle had been cleared in 1979 was less than what was actually entered in the measurement book on the basis of the site inspection carried out in 1984. The omission on the part of the department and the ACB to immediately inspect the site is a serious lacuna in the prosecution case, Prosecution has tried to make much capital out of the fact that the contractor allegedly started work of jungle clearance even before the formal agreement was drawn up. From the evidence of PW 10, PW13 and PW 20 it emerges that when work is entrusted on nomination basis to a contractor he may commence the work, on oral instructions, even before the formal agreement is drawn up.\n86.  The agreement Ex. P5 itself shows the entrustment of the work to have been done to the contractor before the conclusion of the agreement and therefore no adverse inference can be drawn against the contractor or the appellants for commencing the work before drawing up of the formal agreement. The Deputy Executive Engineer PW 13 admitted in his cross-examination that entrustment of work before conclusion of the agreement is not irregular and has been resorted to in other cases also, PW 20 who was at the relevant time Chief Engineer (Irrigation) stated in his deposition that in cases of urgency, the competent authority could direct commencement of the work before completion of the formalities of executing the agreement. Even though PW 14\n87.  Mr. C. Janardhana Rao, Chief Engineer (minor Irrigation) was declared hostile by the prosecution, yet, we find that his categorical admission in the cross-examination to the effect that in his capacity as Chief Engineer he had addressed a letter, as early as on 26.4.1981, to the Secretary Irrigation and Power Department stating therein that jungle clearance work in Nellore District, which would include the Nellore North Division also, had been done properly and the work had been allotted within the powers of the Executive Engineer, has not been contradicted by any other evidence.\n88.  Besides, PW 17 admitted that he did not find any mistake when he audited the bill pertaining to the work in question while PW 12, the head draftsman of the Irrigation North Division categorically deposed that while scrutinising the estimate Ex. P4, Cor showing the removal .of stumps of Juliflora as a separate item he hud not raised any objection in view of the provisions of Rule 2(f) of the 1979 Rules. It appears to us that the exercise undertaken in 1984 alter a lapse of five years was a futile exercise because once a jungle has been cleared and stumps, up-rooted, nothing would remain as evidence on the soil to show the extent to which the jungle was cleared 5-6 years :earlier. It would not even be possible to say whether there was any necessity for jungle clearance at that earlier point of time. Much capital was sought to be made by learned counsel for the State of including the area of revetment as a part of the area from where jungle was shown to have been cleared to urge that since there could be no growth of jungle on the revetment, the measurements were falsely recorded and the criminality had got exposed.\n89. We cannot agree. In this connection we find that the state-ment of PW 13 is somewhat relevant. He admitted that if the branches of Juliflora spread over the revetment area than that has also to be cleared and the area over the revetment will also have to be calculated for deter-mining the total area of jungle clearance. He went on. to say that in a disturbed revetment there is even otherwise the possibility of the growth of Juliflora. Since, PW 7 Mr, L,R. Kapoor who had visited the site during 4,4,1981 to 6.4.81 for conducting preliminary inquiry stated in his report that it was not possible to find out during the inquiry held in 1981 whether there in fact existed any necessity for jungle clearance at the site or not, we fail to see how in 1984 the departmental officials assisting the ACB could categorically report about the non-existence of the necessity for jungle clearance in 1979. It is a matter of common knowledge which is not disputed even by the prosecution that Juliflora does not grow in an orderly manner but is a wild growth. Therefore, the extent of the jungle which was required to be cleared in 1979 on the basis of \"paper calculation\" or inspection carried out in 1984 was not possible to be determined.\n90.  Indeed, jungle clearance work is a part of maintenance work. But there is nothing on the record to show that it was so undertaken departmentally in 1979-80. It was under the instructions of the Superintending Engineer contained in circular memo No. 2Q21-G2 dated 29.12.1978 that the jungle clearance work was treated as urgent work, to prevent breaches during the rainy season and avoid damages to the tank bunds and therefore no fault can be found with A2 for not recording reasons for treating the work as of urgent nature and allotting it on nomination basis.\n91. The reasons we have given while dealing with the appeals from Gandipalem Project and Nellore South Division, to hold that. the prosecution has failed lo establish its case against the appellants beyond a reasonable doubt also apply to these appeals with equal force. Whether the measurements were recorded in the measurement book after actually visiting the site or not would only be violation of the statutory circulars and instructions. It may even be violative of the codal provisions but in the absence of any evidence, direct or circumstantial, to establish that without any work having been undertaken at the site, payments were allegedly made, no offence can be said to have been established. That the 'departmental officials did not go to the site is a possible inference which may be drawn from the fact that divisional vehicle did not go up to the site but again the same cannot be construed as sufficient to establish criminal conspiracy between the parties.\n92.  The argument of learned counsel for the State that two payments were not permissible for clearing jungle and stumps separately only show the violation of codal provisions and commission of irregularities but that does not by itself establish any criminality in so far as the appellants are concerned.\n93. In our opinion none of the circumstances relied upon by the prosecution connect the appellants with the crime alleged against them. The circumstances have not: been proved beyond a reasonable doubt and the circumstances taken collectively cannot be said to be compatible only with the hypothesis of the guilt of the appellants and totally incompatible with their innocence. Under the circumstances we are of the opinion that the prosecution has not established the case against the appellants beyond a reasonable doubt. Their appeals therefore succeed and are allowed and their conviction and sentence are set aside. Fine shall be refunded to the appellants.\n94. CRIMINAL APPEAL NO. 153 OF 1993 (NELLORE SOUTH DIVISION CONTRACTOR'S APPEAL):\n95.  This appeal has been filed by the contractor A4, and arises out of :Crl. Case No. 9/87 (High Court Appeal No. 184/89). It relates to clearance of Juliflora jungle from 0 to 1 mile including removal of 14800 stumps in Nellore South Division. The jungle clearance work was allotted lo the appellant by the Executive Engineer on nomination basis. On completion of the work, the appellant submitted his bill and an amount of Rs. 15643 was paid to him.\n96. According to the prosecution case, A1 to A3 entered into a criminal conspiracy with A4 and without actually doing any work of jungle clearance obtained payment of Rs. 15643 and that amount was shared by all the accused and with a view to cover up the misappropriation, records were fabricated. It is alleged that the jungle clearance work could not have been allotted to the appellant on nomination basis without floating tenders and even the nomination of the appellant as the contractor was made in violation of the codal provisions since Al did not even assign any reason for giving the work on nomination basis and had not obtained any sanction from the higher authorities to allot work on nomination basis.\n97.  Learned counsel for the appellant Mr. Nambiar submitted that the estimate was sanctioned by Al on the basis of an estimate prepared by A3 and counter singed by A2. The estimated value of the work was Rs. 18500 but that amount was, however, slashed and in the agreement concluded with the appellant on 25.1.80, Ex. P5, the amount was shown as Rs. 15643 and these facts were indicative of the bonafides of the officials of the department in getting the jungle cleared through the agency of the appellant. Argued, the learned counsel that in any event if the departmental officials committed any codal violations or ignored circulars and instructions in the matter of allotment of jungle clearance work, the appellant could not be held responsible more so when the charge of conspiracy is not only vague but also not proved on the record. Learned counsel further contended that vide GOMS No. 1007 dt. 5,11,76, the Executive Engineers had been authorised to allot work, on nomination basis, without calling for tenders where the amount involved was less than Rs. 20000 and, therefore, the allotment of the work in question to him on nomination basis could not be faulted with.\n98. It was further submitted that the case of the prosecution to the effect that 710 work at all was done and by preparing fictitious documents, the entire payment was misappropriated by Al to A3 in connivance with the appellant has been belied by the prosecution evidence itself. In this connection learned counsel referred to the evidence of PW 17 Assistant Engineer, who admitted in his deposition that he had seen work was being actually done at the site in 1979-80. Learned counsel also drew our attention to the report of inspection submitted by the Chief Engineer on 29.7.79 according to which jungle clearance work had actually been done at the site and urged that this evidence completely demolished the prosecution case.\n99.  The circumstances relied upon by the prosecution and accepted by the courts below against the appellant are:\n(i) that work of clearance of Juliflora jungle and uprooting of stumps was falsely alloted and without any work being done a cheque for Rs. 15643 was given to the contractor which was encashed by him;\n(ii) that there has been flagrant violations of provisions of PWD Codes etc. in the matter of preparation of estimate; accord of sanction; drawing up of the agreement and allotment of work on nomination basis to the appellant;\n(iii) that in the measurement book the area where work had been done was recorded by the officials in excess to help the appellant, without having actually visited the site;\n(iv) that the allotment of work by nomination was irregular and in violation of codal rules. Major work had been split up so as to bring up the allotment of work within the pecuniary jurisdiction of the Executive Engineers;\n(v) the terms of the agreement Ex. P5 concluded between Al and A4 are ambiguous;\n(vi) preparation of bill and making of separate payment for removal of stumps and clearance of jungle was in breach of codal provisions.\n100.  Strictly speaking the above cannot be called 'circumstances' against the appellant as the same are more in the nature of \"allegations\" of the prosecution against the accused. Even otherwise, so far as circumstances 2 to 6 (supra) are concerned, they concern the officials of the department, and may be relevant in the case of the appellant, if the charge of conspiracy can be said to have been established. The charge of conspiracy against the accused was that without any work being done by him, payment was made to him and various documents fabricated to justify the payment, which was misappropriated. Circumstances 1 and 3 derive their colour and content from the aforesaid circumstances.\n101. Was any jungle clearance work done in 1979 at the site in question?\n102.  If the answer to the question is in the affirmative, the charge of conspiracy must fail. While dealing with the case of departmental officials, we have held that the charge of conspiracy has not been established. Those reasons apply to the case of the appellant also. Besides, PW 17 is the Assistant Engineer of the department. Kodavalur Tank Channel was within his jurisdiction when he was working as Section Officer at Kodavalur, from May 1980 to July 1984, He deposed that being a native of Kodavalur, he had seen that Kodavalur Tank Supply Channel even before he started working as Section Officer in Kodavalur section. He admitted during his cross examination:\n\"During 1979-80 I was working at Darsi. While going to Darsi by bus from Kovur, I observed jungle clearance work being done on Kodavalur Tank Supply Channel, I saw the jungle clearance work being done at a road bridge which is across the Kodavalur Tank Supply Channel and that road bridge is within the drainage from 0/0 to 1/0 mile. This tank supply channel runs in embankment on that chainage i.e. 0/0 to 1/0 mile,\"\nthe above statement of PW 17, when considered in the light of the inspection report of the Chief Engineer dated 29.7.79, shows jungle clearance work was being done in 1979-80, PW 21 a resident of Rajapulan who has his tailoring shop situate on the left bank of Kodavalur tank for the last about 12-13 years deposed at the trial that about 8-9 years ago he had seen some officials getting jungle cleared on the banks of that channel by engaging coolies.\n103.  The evidence of this witness, thus, also shows that jungle clearance work was being done at the site in question in 1979-80 and to that extent PW 21 corroborates the testimony of Assistant Engineer P 17. It is nobody's case that jungle clearance work was done in 1979-80 through departmental laskars and, therefore, the legitimate inference to be drawn from the evidence of PW 21 is that jungle clearance work was being done at the site in 1979-80 through the appellant. PW 18 is a bus conductor, He has a hut on the Northern bank of the channel since 1977.\n104. According to him villagers used to cut and take away Karratumma plants growing on the channel banks. He denied any knowledge as to whether contractors of the PWD department had cleared Karratumma plants growing on the banks of Kodavalur tank supply channel during 1979-80. As against this material, is the evidence of PW 8 who visited the site in 1984 and stated in his report that no work of jungle clearance had been done in 1979 as there was growth of juliflora at the site when he visited it. Finding the growth of Julifiora in 1984 could not lead to an irresistible conclusion that the jungle had not been cleared in 1.1979-80. In this connection, the evidence of PW 11 has significance. This witness admitted during his cross-examination that juliflora grows rather fast and is a wild growth.\n105.  It could not have stopped growing between 1979 and 1984, Since, the prosecution witnesses PW 17 and 21 have admitted that in 1979-80, work of clearance of juliflora jungle was being done at the site and it is no body's case that it was being done departmentally, the conclusion is irresistible that the same, had been done through the agency of the appellant and the charge of conspiracy must fail. There have been some irregularities committed in the matter of allotment of work to the appellant or breach of codal provisions, circulars and departmental instructions, for preparation of estimates etc. and those irregularities give rise to a strong suspicion in regard to the bonafides of the officials of the department and their link with the appellant, but that suspicion cannot be a substitute of proof.\n106.  The courts below appear to have drawn inferences by placing the burden of proving innocence on the appellant which is an impermissible course. In our opinion none of the circumstances relied upon by the prosecution against the appellant can be said to have been proved satisfactorily and all those circumstances, which are not of any clinching nature, even if held to be proved do not complete the chain of evidence so complete as to lead to an irresistible conclusion consistent only with the hypothesis of the guilt of the appellant and wholly inconsistent with his innocence. The prosecution has not established the case against the appellant beyond a reasonable doubt. This appeal, there-fore, succeeds and is allowed. The conviction and sentence of the appellant is hereby set aside. Fine, if paid by the appellant shall be refunded to him. The appellant is on bail. His bail bonds shall stand discharged,\n107. CRIMINAL APPEAL NOS. 170-171 OF 1993 (NELLORE NORTH DIVISION CONTRACTOR'S APPEAL):\n108.  These appeals arises out of C.C. No. 4 of 1987 and have been filed by the contractor (A5) who was alloted work on nomination basis for clearance of jungle in Nellore North Division on the reach of 0.0 to 1450 metres on Krakatur small tank.\n109.  The prosecution case against the contractor is that he is a non-existent person. According to the prosecution there was no such contractor who had been alloted work on nomination basis and all the documents purporting to have been signed by the appellant as a contractor had been fabricated by the engineers because the contractor was an unknown and fictitious person. It is alleged that the name of the contractor as appearing in the order of nomination, allotment letter and the agreement is fictitious and not correct. Both the courts appear to have readily accepted the prosecution case and convicted and sentenced the appellant.\n110. We fail to see any justification for such a conviction. If the appellant had nothing to do with the contract, how could he be convicted for allegedly not undertaking the work with which he, according to the prosecution case itself had no concern. In the charge sheet and the charge framed against the appellant, the name of the appellant has been given as the contractor who was alleged to be a co-conspirator with the Engineers and section officers to misappropriate government funds by receiving payment for doing no jungle clearance work. That there was clearance of jungle at the site in question, has been amply established from the prosecution evidence which has been discussed while dealing with the appeals relating to Nellore North Division. Since, jungle clearance work has been found by us to have been done in 1979-80 and it is not the prosecution case that it was done departmentally, the inference that it was done through the agency of the appellant appears to us to be fair and reasonable. The charge framed against the appellant was never amended and since the charge contained the name of the appellant as a coconspirator, who is supposed to have been alloted the work but who did not work and yet received payment and shared it with his co-accused, we fail to see how it is open to the prosecution to now contend that the contractor is a fictitious person.\n111.  The argument is self defeating. Prosecution has failed to prove the case against the appellant beyond a reasonable doubt either through direct or circumstantial evidence. The courts below have apparently taken a superficial view of the matter and without considering the material on the record, recorded the conviction of the appellant which cannot be sustained. His appeal succeed and are allowed. His conviction and sentence is set aside. Fine paid by him shall be refunded to him. His bail bonds are discharged.\n112. As a result of our above discussion of various representative appeal and which discussion equally applies to all the appeals filed in this court arising out of the judgment of the High Court dated 27,11.91, we find that the prosecution has not been able to establish, beyond a reasonable doubt, its case against any of the departmental officials, that is, the Engineers and section officers and consequently their appeals succeed and their conviction and sentence are set aside. The fine paid by each one of them is directed to be refunded to them. The prosecution has also not established its case against any of the contractors beyond a reasonable doubt. Their appeals also succeed and their conviction and sentence are hereby set aside. The fine paid by them is directed to be refunded to them. Their bail bonds shall stand discharged.\n113.  This takes us to one other aspect of the case. Mr. L.R. Kapoor who conducted an inquiry from 4.4.81 to 6.4.81 and submitted his report on :284.81 to the Government found that there had been defiance of the authority of the Superintending Engineer in the matter of execution of work and spending of grants besides violation of codal provisions and breach of departmental instructions and circulars. He recommended departmental action against the accused. However, before the accused could be proceeded departmentally, the case was entrusted to ACB and the accused were tried by the learned special judge and were convicted and sentenced. Their appeals, except for reduction of sentence, failed in the High Court. Both the courts found that grave irregularities were committed by the officers concerned in the matter of allotment of work and the method followed by them was in violation of the codal provisions departmental instructions and circulars.\n114.  The courts below have also found that the officials had committed serious administrative irregularities and lapses. Reference has been made both by the trial court and the High Court to the codal provisions i.e. A.P. PWD code, A.P. Financial Code etc. and the circulars and instructions issued from time to time which were respected in their breach by the official accused. We have not found it possible to take a view different than the one taken by the courts below in this regard though in our opinion the breach of code provisions or violation :of the circulars and instructions and commission of administrative irregularities cannot be said to have been done by the officials concerned with any corrupt or dishonest intention. Learned counsel appearing for all the appellants also during the course or their arguments were unable to point out any error in those findings and according to them in the established facts and circumstances of the case, the irregularities, administrative lapses and violation of the codal provisions, could only have resulted in a departmental action against the officials but criminal prosecution was not justified.\n115. Their argument has force and appeals to us. Since, we have given the benefit of doubt to the accused persons (department officials) and acquitted them, they may seek reinstatement in service. However, as we have agreed with the findings recorded by both the courts below with regard to the violation of the codal provisions and administrative lapses by the departmental officials, it appears to us that a departmental enquiry may be justified but in this fact situation, it would be an unnecessary exercise.\n116.  Learned counsel for the appellants have been heard by us at length and they were unable to assail the findings of the courts below regarding codal violations and administrative lapse which may have caused some loss to the exchequer also. What then should be the course of action which should be followed in the facts and circumstances of the case?\n117. While the officials deserve to be punished, should we remit the matter to the department for awarding appropriate punishment or should we impose the punishment ourselves and close the chapter, A court of equity must so act, within the permissible limits so as to prevent injustice. \"Equity is not past the age of child bearing\" and an effort to do justice between the parties is a compulsion of judicial conscience. Courts can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to further the cause of justice, within the available range and forging new tools for the said purpose, if necessary to chisel hard edges of the law. In our opinion in the established facts and circumstances, it would be appropriate with a view to do complete justice between the parties, in exercise of our jurisdiction u/art. 142 of the Constitution of India, to direct that no departmental inquiry shall now be initiated against the departmental officials for their established administrative breaches and violation of the codal provisions, in 1979-80.\n118.  Consequent upon their acquittal, the official respondent shall be reinstated in service with continuity of service for all purposes but for their established administrative lapses and breach : of codal provisions etc., they shall not be entitled to any back wages or any other type of monetary benefit for the period they remained out of service.\n119. The suspension allowance, if any, received by all or anyone of them shall however not be recovered from them. This punishment appears to us to be commensurate with the gravity of their lapses and shall serve the ends of justice. Those of the officials who may have reached the age of superannuation in the meanwhile, will get their pensionary benefits calculated on the basis of their continuous service but they shall be entitled to draw pension with effect from the date of this order only.\nOrder accordingly.\n"}
+{"id": "dFtCdZe11M", "title": "", "text": "Padala Veera Reddy v State of Andhra Pradesh and Others\nSupreme Court of India\n\n26 October 1989\nCr.A. No. 420 of 1989\nThe Judgment was delivered by: RATNAVEL PANDIAN, J.\n1.  This criminal appeal is directed against the judgment of the High Court to Andhra Pradesh, rendered in Criminal Appeal No. 544 of 1987 partly allowing the appeal by setting aside the convictions of respondents 2 to 4 (accused Nos. 1 to 3) u/s. 302 read with S. 34 of I.P.C. and Section 498-A, I.P.C. and the sentence of imprisonment for life and the sentence of one year rigorous imprisonment respectively but retaining the conviction of the respondents 2 to 4 u/s. 201 read with S. 34 of I.P.C. and the sentence of three years rigorous imprisonment as against respondents 2 and 3 (accused 1 and 2) but reducing the sentence of imprisonment inflicted on respondent No. 4 (A-3) to the period already undergone and in lieu of the unserved portion of the sentence, imposing a fine of Rs.1000/- in default to suffer rigorous imprisonment for three moths.\n2.  The relevant facts of the case giving rise to this appeal are necessary to be recapitulated for the disposal of this appeal.\n3.  Before the trial Court, there were four accused namely respondents 2 to 4 and one Mallidi Pada Kapu alias Venkata Reddy (accused 4) who stood convicted under Section 201, I.P.C. and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for a further period of 3 months and who is not a respondent in this appeal. For the sake of convenience, we shall refer respondents 2 to 4 in this judgment as accused Nos. 1 to 3 as arrayed before the trial Court.\n4.  The second and third accused are the father and mother of the first accused. The first accused married the deceased, Vijaya, daughter of P.W. 8 (the appellant herein) on 10-5-79 at Tirumala hills. P.W. 9 is the brother of the deceased. All the accused are residents of Komaripalem. The appellant is the resident of Rayavaram. At the time of the marriage, the appellant gave sufficient cash and gold to the deceased. As the deceased was aged about 12 years at the time of her marriage she stayed with her parents till she attained her puberty and thereafter was sent to her marital home. The case of the prosecution is that the deceased used to complain to her father and that her husband and in-laws were pressing hard to get some landed property towards her dowry. When the appellant made enquiries about her daughter's complaints, the accused abused and tried to beat him.\n5. In 1985 during the second crop season, the accused 1, 2 and 4 along with the deceased forcibly harvested the crop standing in the land of the appellant. It is stated that the deceased even went to the extent of filing a suit against her father, the appellant (P.W. 8) and brother (P.W. 9) claiming that the land in dispute was in her possession. Her brother P.W. 9 in turn filed a suit against the deceased and P.W. 8. The appellant filed a criminal complaint against the deceased and the accused persons. Thus, there were civil and criminal proceedings between the parties.\n6.  On the intervening night of 6/7th September, 1985 the accused 1 to 3 are said to have attended the marriage celebrated in the house of P.W. 1 and remained in the marriage house till morning of 7th September and when they came back to their house they, to their shock and surprise, found number of people gathered in front of their house and the body of the deceased lying in an easy chair. The fourth accused who is not a respondent in this appeal went to the police station and gave the report Ex. 14 to the Head Constable. Some nail marks and swelling over the neck, lips, chin and nose were noticed on the dead body. A tin covered with a cap and pasted with a label inscribed 'Democran' (i.e. pesticide) was found by the side of the dead body. The fourth accused stated in Ex. P-14 that the deceased had committed suicide. P.W. 10 registered the report. Thereafter, P.Ws. 10 and 11 reached the scene and took up investigation.\n7.  In the meanwhile, the appellant and P.W. 9 on receipt of the jarring information about the death of the deceased came to the scene village. During the investigation, the first accused handed over three letters Exs. P-6 to P-8 said to have been written by the deceased to her father. These letters were seized under Ex. P-5. P.W. 10 held the inquest and during the course of which he examined P.Ws. 8 and 9 and others. As suspicion was entertained over the death of the deceased, the dead body was sent for post-mortem examination. P.Ws. 5 and 6, the Medical Officers conducted autopsy and found some external injuries. The medical officers sent the viscera and some of the part of the dead body namely liver, kidney for chemical examination. After the receipt of the chemical examiner's report both P.Ws. 5 and 6 gave their opinion that the death was due to poisoning and smothering i.e. asphyxia. Further investigation was taken by P.W. 13 and thereafter by P.W. 14. All the accused were arrested. After completing the investigation, charge-sheet was laid. On the side of prosecution P.Ws. 1 to 14 were examined.\n8.  All the accused denied their complicity with the offence in question and stated that the relationship between the deceased and the accused was on cordial terms, that on the ill-fated night they were all in the marriage house of P.W. 1 and that this case is foisted against them by the appellant on account of the long-standing enmity. The trial Court accepting the evidence let in by the prosecution convicted A-1 to A-3 under the respective charges and sentenced them as aforementioned. On being aggrieved, the accused 1 to 3 filed criminal appeal No. 544 of 1987 and the fourth accused who stood convicted only under Section 201, I.P.C. preferred criminal appeal No. 576 of 1987. Both the appeals were disposed of by the High Court by the impugned common judgment.\n9.  The State has not preferred any appeal against the order of acquittal of A-1 to A-3 of the charges punishable u/s. 302 read with Ss. 34 and 498-A of the Indian Penal Code; but this present appeal is by P.W. 8, the father of the deceased.\n10.  Mr. Sitaramiah, the learned senior counsel appearing on behalf of the appellant took us very meticulously through the judgments of the trial Court as well of the Appellate Court and strenuously contended that the reasons given by the appellate Court for recording an order of acquittal of the offence of murder are perverse and difficult to comprehend and the Appellate Court has over-looked the important and vital facts which tend to show that the show that the circumstances established are consistent only with the hypothesis of guilt of the accused.\nAccording to him, the chain of evidence is complete leaving no reasonable ground for drawing a conclusion consistent with the innocence of the accused. It is further submitted that the unrealistic and false plea put forth by the accused stating that none of them was present in the house on the ill-acted night is itself an additional circumstance lending support to the other impelling circumstances unfailingly pointing out the guilt of the accused. The first respondent, State of Andhra Pradesh sails with the appellant supporting the arguments advanced by Mr. Sitaramiah.\n11. Mr. P. Krishna Rao, learned counsel appearing on behalf of the respondents 2 to 4 (Accused 1 to 3) countered the above argument, submitting that the judgment of the Appellate Court is based on sound reasoning and that the totality of the evidence adduced by the prosecution, if at all proves anything it may create only a suspicion against the appellants and that no conviction, as rightly pointed out by the Appellate Court, can be safely recorded on such suspicion or conjecture.\n12.  Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecutions rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:\n(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;\n(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;\n(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and\n(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.\n(Gambhir v. State of Maharashtra, 1982 Indlaw SC 27 : 1982 Indlaw SC 27), Rama Nand v. State of Himachal Pradesh, 1981 Indlaw SC 129 : 1981 Indlaw SC 129), Prem Thakur v. State of Punjab, 1982 Indlaw SC 144 : 1982 Indlaw SC 144), Earabhadrappa v. State of Karnataka, 1983 Indlaw SC 161 : 1983 Indlaw SC 161), Gian Singh v. State of Punjab, 1986 Indlaw SC 487 : 1986 Indlaw SC 487), Balvinder Singh v. State of Punjab, 1986 Indlaw SC 35 : 1986 Indlaw SC 35).\n13.  Bearing the above principle of law enunciated by this Court we shall scrutinise scrupulously and examine carefully the circumstances appearing in this case with serious and onerous responsibility imposed on this Court.\n14.  There are certain salient and material features in the present case which are not controverted; they being that A-1 to A-3 and the deceased lived under a common roof, that the deceased had instituted a civil suit against her father, P.W. 8 and brother P.W. 9 claiming exclusive possession of the disputed land, that the deceased was found dead on the morning of 7-9-85 and that there were certain visible injuries such as abrasions, nail marks and contusions of the part of the nose, upper lip, chin and neck etc. as noted by the Medical Officers (P.Ws. 5 and 6) in the post-martem report Ex. P-9. The appellate Court on the strength of the opinion given by the Medical Officers (P.Ws. 5 and 6) had agreed with the view of the trial Court that the death of the deceased was homicidal one and not suicidal and held \"therefore suicidal is ruled out\". We also very carefully went thought the evidence of the Medical Officers and found that the prosecution has convincingly established that the death of the deceased was due to forcible administration of poison and smothering. Hence we are in full agreement with the concurrent findings of the Courts below that it is a clear case of murder.\n15.  The next important question is whether the circumstances attending case do satisfactorily and unerringly establish the guilt of the accused 1 and 3 or any of them so as to incriminate them with the heinous crime of murder and the offence of cruelty within the mischief of Section 498-A, I.P.C. The learned counsel appearing on behalf of the appellant seeks to draw an inference of guilt of the accused on the following circumstances:\n(1) The demand of the deceased requesting her father to settle the landed property in her name and her subsequent filing of the civil suit in the year 1985 i.e. within a period of 6 years since her marriage indicate that the accused should have pressurised the deceased to take a hostile attitude towards her father so that they could grab the property.\n(2) The very fact that the deceased who was in her prime of youth did not accompany her husband and in laws to attend the marriage celebrated and in the house of P.W. 1, situated just opposite to the accused's house shows that there was no cordial relationship between the deceased and the accused and the deceased was not leading a happy marital life.\n(3) The facts that the victim was alive when all the accused are said to have left their house to attend the marriage and she was done away with only during the intervening night of 6th/7th September, 1985 are not in dispute.\n(4) The fact that the deceased was found dead lying on an easy chair indicates that the dead body should have been brought and laid on the easy chair by someone else.\n(5) The presence of a tin container covered with a cap and pasted with a label inscribed 'Democran' (i.e. pesticide) near the easy chair which on chemical examination was not found to contain any poisonous substances shows that someone had kept the tin near the dead body so as to create a false impression in the minds of others that the victim had consumed the poison and committed suicide.\n(6) The presence of the injuries namely semicircular abrasions resembling that of human nail marks over the upper parts of her lip, nose and chin, to contusions over the front of neck, the congestion of the protruding eye balls and the presence of bluish, black discolouration from the right angle of the mouth extending to right side of neck unequivocally lead to a decisive conclusion that the deceased had been over-powered by the assailants and the poison was administered to her by forcibly opening her mouth and closing the nose and pressing the neck so as to make the victim to gulp the poison and in that process more than one person should have participated. This view is fortified by the final opinion given by the doctors stating that death might have been caused due to the combined effect of asphyxia due to smothering and poisoning democran.\n(7) The conduct of the first accused in handing over three letters Ex. P6 to P8, alleged to have been written by the deceased herself, to the Investigating Officer on 7-9-85 at the scene house itself is yet another circumstance showing that the accused has by a concerted pre-plan manipulated a defence theory of suicide so as to escape from the culpability of the crime. The defence of the accused that they were at the marriage house from 8.00 p.m. on 6-9-85 till the morning of 7-9-85 is patently false and unrealistic since the house of P.W. 1 where the marriages was conducted is almost opposite to the house of the accused. This plea of the accused is too big a pill to be swallowed.\n(8) The introduction of the patently false averments in Ex. P-14 by accused 4 that deceased had committed suicide should have been made only at the instance of A-1 to A-3 and this conduct of the accused clearly indicates that the accused had pre-planned and calculated a false theory of defence presumably due to an earlier deliberation and consultation with the local M.L.A.\n16.  According to the learned defence counsel, the totality of the above circumstances unerringly, unfailingly and unshakably prove that the accused 1 to 3 alone were the perpetrators of this heinous crime of murder and none else.\n17.  While considering the above circumstances, the appellate Court has expressed its view that the explanation given by the accused that they were at the marriage house of P.W. 1 throughout the night is nothing but a false explanation and the culprits whoever they might have been should have administered the poison to the victim and there by caused her death and that there is very strong suspision against the accused persons but the prosecution cannot be said to have established the guilt of the accused decisively since the suspicion cannot take the place of legal proof. The relevant portion of the final conclusion of the appellate Court reads thus:\n\"There is no evidence whatsoever either from the neighbours or from others to show that the accused at any time ill-treated the deceased or treated her cruelly. In these circumstances, it is not possible to hold that the prosecution has established the guilt on the part of A-1 to A-3. Thus, there is no conclusive evidence that the accused committed the offence of murder. It is unfortunate case where cold-blooded murder has been committed and it is difficult to believe that no inmate of the house had any hand in the offence of murder. But that will be only a suspicion which cannot take the place of proof.\"\n18.  We, in evaluating the circumstantial evidence available on record on different aspects of the case, shall be the foremost watchfully examine whether the accused 1 to 3 had developed bad-blood against the deceased to the extent of silencing her for ever, that too in a very inhuman and horrendous manner. The appellant wants us to infer that the deceased should have been subjected to all kinds of pressures and harassments and compelled to institute the suit against her father and brother claiming exclusive right over the landed property in order to grab the said property, that this conduct of the accused should have been resented by the deceased and that on that score the accused should have decided to put an end to her life. In our view, this submission has no merit because there is no acceptable evidence showing that there was any quarrel in the family and that the deceased was ill-treated either by her husband or in-laws. The appellate Court while dealing with this aspect of the case has observed that there is no evidence that the accused ill-treated the deceased, which observation we have extracted above. Hence, we hold that there is no sufficient material to warrant a conclusion that the accused had any motive to snatch away the life thread of deceased. There is no denying the fact that the deceased did not accompany her husband and in-laws to attend the marriage celebrated in the house of PW-1 and remained in the scene house and that she has been done away with on the intervening night of 6th/7th September, 1985. From this circumstance, the Court will not be justified in drawing any conclusion that the deceased was not leading a happy marital life.\n19. As observed by the appellate Court, the explanation offered by accused 1 to 3 that they remained in the house of PW-1 throughout the night is too big a pill to be swallowed. But at the same time, in our view this unacceptable explanation would not lead to any irresistible inference that the accused alone should have committed this murder and have come forward with this false explanation. We have no hesitation in coming to the concession that it is a case of murder but to a suicide as we have pointed out supra. The placing of the tin container with the inscription 'Democran' by the side of the dead body is nothing but a planted one so as to give a misleading impression that the deceased had consumed poison and committed suicide. But there is no evidence as to who had placed the tin container by the side of the dead body.\nEven if we hold that the perpetrators of the crime whoever might have been had placed the tin, that in the absence of any satisfactory evidence against the accused would not lead to any inference that these accused or any of them should have done it. It is the admitted case that the first accused handed over three letters Exs. P-6 to P-8 alleged to haves been written by the deceased to the Investigating Officer. The sum and substance of these letters are to the effect that the deceased had some grouse against her parents and that the accused were not responsible for her death. The explanation given by accused No. 1 in this written statement is that by about the time of the arrival of the police, one Sathi Presada Reddy handed over these letters to him saying that he (Reddy) found them near the place when the dead body was laid and that he (A-1) in turn handed over them to the police. PWs. 8 and 9 have deposed that these letters are not under the hand-writing of the deceased. But the prosecution has not taken any effort to sent the letters to any handwriting expert for compression with the admitted writings of the deceased with the writing found in Exs. P-6 to P-8. Under these circumstances, no adverse inference can be drawn against accused No. 1 on his conduct in handing over these letters.\n20.  No doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establishes that all the accused or any of them are the real culprits. The circumstances indicated by the learned counsel undoubtedly create a suspicion against the accused. But would these circumstances be sufficient to hold that the respondents 2 to 4 (accused 1 to 3) had committed this heinous crime. In our view, they are not.\n21.  There are series of decisions holding that no one can be convicted on the basis of mere suspicion, however, strong it may be. Though we feel it is not necessary to recapitulate all those decisions we will refer to a few on this point.\n22.  This Court in Palvinder Kaur v. State of Punjab, 1952 Indlaw SC 50 : 1952 Indlaw SC 50) has pointed out that in cases depending on circumstantial evidence Courts should safeguard themselves against the danger of basing their conclusion on suspicions howsoever strong.\n23.  In Chandrakant Ganpat Sovitkar v. State of Maharashtra, 1974 Indlaw SC 481 : 1974 Indlaw SC 481) it has been observed:\n\"It is well settled that one one can be convicted on the basis of mere suspicion, though strong it may be. It also cannot be disputed that when we take into account the conduct of an accused, his conduct must be looked at in its entirety.\"\n24.  In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Indlaw SC 432 : 1984 Indlaw SC 432), this Court has reiterated the above dictum and pointed out that the suspicion, however, great it may be, cannot take the place of legal proof and that \"fouler the crime higher the proof.\"\n25.  We are of the firm view that the circumstances appearing in this case when examined in the light of the above principle enunciated by this Court do not lead to any decisive conclusion that either all these accused or any of them had committed the murder of the deceased, Vijaya punishable u/s. 302 read with S. 34 of I.P.C. or the offence of cruelty within the mischief of Section 498-A, I.P.C.\n26. Hence, viewed from any angle, the judgment of the appellate Court does not call for interference. The appeal is dismissed accordingly.\nAppeal dismissed.\n"}
+{"id": "HteOtLAQvc", "title": "", "text": "State of Haryana v Jagbir Singh and Another\nSupreme Court of India\n\n26 September 2003\nAppeal (Cr.) 1721 of 1996 with Cr.A. Nos. 1237-1238/2003 (Arising out of S.L.P. (Cr.) Nos. 1076-1077/1996)\nThe Judgment was delivered by : Arijit Pasayat, J.\nLeave granted in SLP (Crl.) Nos. 1076-1077/1996.\n1.  Questioning legality of judgment rendered by a Division Bench of the Punjab and Haryana High Court, Criminal Appeal No. 1721 of 1996 has been filed by the State of Haryana. The other two appeals are by the informant. An innocent child of about 4 years was the victim of unnatural death. According to the prosecution, respondents caused his homicidal death after kidnapping him. The motive for the killing was stated to be intended demand of ransom for his release. The Sessions Judge, Bhiwani found the respondent-accused Jagbir Singh to be guilty of offences punishable u/s. 302 IPC. He was also convicted for offence punishable under Sections 364, 201 and 384 of the Indian Penal Code, 1860 (in short the 'IPC'). For the offence punishable u/s. 302 IPC he was awarded death sentence and for other offences period of sentence already undergone in custody. Accused Umed Singh was convicted for offences punishable u/s. 201 IPC and was directed to suffer RI for 3 years and fine. Both the accused persons preferred appeal before the High Court. The High Court by the impugned judgment found them not guilty.\n2.  According to the prosecution, death of the victim was on 6.9.1991 and passing through a chain of incidents and happenings, finally the First Information Report was lodged on 9.9.1991. In between, a ransom letter meant for somebody else was found in torn condition and that led to suspicion against the accused-respondents. Accused-Jagbir is related to Daya Nand (PW7), a teacher. It appears that on account of several circumstances, the villagers thought that accused-Jagbir was responsible for disappearance of the child. He was given time to produce the child. A ransom note was found to be in the hand writing of accused-Jagbir and he is stated to have pointed out the place where the dead body was buried in his house and also on the basis of his information certain articles were recovered. It was also the version of PW7 that at a point of time, accused-Jagbir was taken to the police with the material indicating his complicity in the alleged incident. But the police did not arrest him and left him off. It was pointed out there was grave doubt about the manner in which the investigation was being conducted, and alleged inaction of police. On completion of investigation charge sheet was placed and accused faced trial. The case before the Trial Court was based on circumstantial evidence. The circumstances which according to the prosecution established guilt of the accused are as follows:\n(1) The ransom notes were in the handwriting of the accused- Jagbir Singh;\n(2) There was extra-judicial confession before PW-10 and;\n(3) Recovery of dead body on the basis of information given by the accused while in custody in terms of S. 27 of the Evidence Act, 1872 (for short 'the Evidence Act).\n3.  The Trial Court found the above circumstances sufficient for establishing guilt of the accused persons for the offences alleged. In appeal, the High Court upset the findings and held the accused persons not guilty.\n4.  In support of the appeals, learned counsel for the State and the informant submitted that the High Court's approach was erroneous. It failed to notice that the police was adopting a partisan role and the evidence of witnesses brought on record was in a particular line. The investigation was done otherwise and the police did not place adequate material before the Court. It was pointed out that the ransom note has been erroneously discarded by the High Court. It should have noticed that the accused-Jagbir accepted the handwriting to be his and, therefore, the handwriting expert's report was available to be used against the accused; particularly when the handwriting was given voluntarily for comparison. Further the extra judicial confession before PW-10 has been discarded without any reasonable basis. Finally, when the dead body was recovered from the house of the accused on the basis of the information given while in custody, the High Court should have relied upon the same.\n5.  There was no appearance for the respondents-accused when the matter was taken up for hearing, though the respondents had appeared through their counsel, and the cause list indicated name of the counsel.\n6.  It is unfortunate that an innocent child has lost his life but the crucial question is whether the accused persons were responsible for his death and the prosecution was able to prove its claims beyond reasonable doubt. As stated earlier the case rests on circumstantial evidence.\n7.  It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063 1977 Indlaw SC 433); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316 1955 Indlaw SC 108); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446 1983 Indlaw SC 161); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224 1985 Indlaw SC 71); Balwinder Singh v. State of Punjab (AIR 1987 SC 350 1986 Indlaw SC 35); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890 1989 Indlaw SC 443). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621 1954 Indlaw SC 188), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.\n8.  We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193 1996 Indlaw SC 3059, wherein it has been observed thus:\n\"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....\".\n9.  In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79 1989 Indlaw SC 31), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:\n\"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;\n(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;\n(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and\n(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.\nIn State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104 1992 Indlaw SC 107), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.\nSir Alfred Wills in his admirable book \"Wills' Circumstantial Evidence\" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:\n(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;\n(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;\n(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;\n(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt,\n(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted\".\n10.  There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.\n11.  In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 1952 Indlaw SC 89), wherein it was observed thus:\n\"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.\"\n12.  A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622 1984 Indlaw SC 432). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:\n(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;\n(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;\n(3) the circumstances should be of a conclusive nature and tendency;\n(4) they should exclude every possible hypothesis except the one to be proved; and\n(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.\n13.  These aspects were recently highlighted in State of Rajasthan v. Rajaram (2003 AIR SCW 40972003 Indlaw SC 630)\n14.  We shall examine the circumstances highlighted. So far as ransom notes are concerned, prosecution sought to rely upon the report given by the handwriting expert. It appears that the accused was taken before Addl. Chief Judicial Magistrate, Bhiwani. According to him, on 10.9.1991 the accused was brought before him in custody for giving his specimen signature u/s. 73 of the Evidence Act. It was noticed by this Court in State of Uttar Pradesh v. Ram Babu Misra AIR 1980 SC 791 1980 Indlaw SC 326) that the Chief Judicial Magistrate has no power to direct the accused to give his specimen signature for comparison during investigation. S. 73 of the Evidence Act reads as follows:\n\"Section 73- Comparison of signature, writing or seal with others admitted or proved: In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.\nThe Court may direct any person present in court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.\nThis section also applies, with any necessary modifications, to finger-impressions\".\n15.  The second paragraph of S. 73 enables the Court to direct any person present in the Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with writings alleged to have been written by such person. The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of S. 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court.\n16.  In order to enable exercise of power under Section 73, the pendency of a proceeding before the Court is the sine qua non. Therefore, the comparison of the signature on the alleged ransom note in no way helps the prosecution.\n17.  Great emphasis was laid by learned counsel for the State on the evidence of PW-4, the Addl. CJM that accused had admitted that the signature was his. This statement is of no assistance. The witness has admitted that the statement was made before him by the accused in the presence of police officials. The second circumstance is the alleged extra judicial confession before PW-10. The High Court has analysed the evidence in great detail. It is on record that the accused-Jagbir was being taken to various places and at different points of time he was being pressurized to make statement. Though the accused was claimed to have made the statement in the presence of large number of persons, a combined reading of the evidence shows that nobody else speaks about the so-called extra judicial confession, not even those who have been examined as PWs. Though PW10 said that there were many persons who had heard it, no other person has stated about it. The statement of PWs 7 and 10 goes to show that accused was being interrogated by PWs and other villagers as well as his father and other relatives. Interrogation continued for about 3 days when allegedly Jagbir confessed his guilt. Though the First Information Report was lodged by PW7 after knowing about the extra judicial confession, there is no mention about this vital fact. In a given circumstance, omission to mention about the particular aspect may not render prosecution version suspicious. But when circumstances in the present case are taken in the entirety alleged extra judicial confession is not believable. In order to make an extra judicial confession a reliable evidence it has to be shown that the same was voluntary. The factual scenario as presented by the prosecution goes to show that the alleged extra judicial confession cannot be termed to be voluntary even if it was said to have been made, as claimed. The High Court was right in discarding the alleged extra judicial confession.\n18.  What remains now to be seen is whether the recovery of the dead body from the premises of accused establishes prosecution version. According to the prosecution when the Panchayat gave time to the accused to produce the boy alive or dead, he accepted that the dead body was buried in his compound. The accused dug the land and on seeing leg of the dead body they stopped digging and went to the police. The High Court has found that prosecution claimed that the two accused were arrested by the Sub Inspector Mahender Singh Bhatti (PW 12) on 9.9.1995 on the culvert of Jai Canal about 8.00 p.m. in the presence of one Chatter Singh and Om Parkash. However, Om Parkash (PW 10) has denied about the arrest of the accused by PW12 near canal. From the statement of PW12, it appears that the accused persons after their arrest made disclosure of the statement about ransom, concealment of the dead body and that the dead body recovered in the presence of aforesaid Chatter Singh and Om Parkash (PW10). It is belied by the statement of Om Parkash (PW10). According to this witness, when the accused made a voluntary statement in the presence of many others he pointed out where the body was buried. They went to the police station where they met PW12 and told him about finding the dead body. PW10 told him that dead body was to be handed over to Sr. S.P. or the Dy. S.P. Evidence of PW10 further shows that PW.12 accompanied by another ASI and other police officials went to the village. There many people had assembled and as the villagers started shouting and agitating that led to altercation; both the accused were arrested by the Dy.S.P. Thereafter it is stated that the accused- Jagbir made a disclosure statement, where he (PW10) and Chatter Singh were stated to be eyewitnesses. One thing is clear that there are unexplained contradictions about the place where the accused were arrested and manner of recovery. Since the dead body was recovered on the basis of information already known, S. 27 of the Evidence Act has no application. As observed by this Court in Aher Raja Khima v. State of Saurashtra (AIR 1956 SC 217 1955 Indlaw SC 41), if a recovery of the incriminating articles alleged to have been made by the accused while in custody is inadmissible in evidence if the police already known where they were hidden. That takes the case out the purview of S. 27 of the Evidence Act.\n19.  However, if a witness can be believed that in his presence the accused person gave recovery of something (of course while not in police custody) it may be a suspicious circumstance, de hors S. 27 of the Evidence Act. But, as noted above, the High Court has analysed the evidence in the present case in great detail to find the evidence to be contradictory and unacceptable in relation to extra judicial confession and alleged recovery. That being so, the High Court's conclusion cannot be faulted.\n20.  Looked from any angle the judgment of the High Court does not suffer from any infirmity which warrants interference.\n21.  It is true that an innocent child has lost his life and there may be some truth about deficiency in the evidence collection mode. But the court can act on the evidence brought before it. Even though the investigation may not be entirely blemishless, at the same time when the material brought on record is insufficient, the course adopted by the High Court cannot be faulted. It does not appear that before the Trial Court or the High Court any grievance was made regarding remiss in investigation or not making investigation in the right direction.\nThe appeals are without merit and deserve dismissal, which we direct.\nAppeals dismissed\n"}
+{"id": "scAXCg4KbF", "title": "", "text": "Eradu and Others v State of Hyderabad\nSupreme Court of India\n\n1 November 1955\nCr.As. Nos. 69 to 72 of 1954.\nThe Judgment was delivered by: Natwarlal Harilal Bhagwati, J.\n1.  These are Appeals with special leave against the judgment of the High Court of Hyderabad confirming the convictions and the sentences of transportation for life imposed upon the appellants, accused 1 to 4, by the Court of the Additional Sessions Judge, Medak, in respect of an offence under S. 243, A.P.C. corresponding to S. 302, Indian Penal Code.\n2.  The accused 1 to 4, along with one Baldev Muthiah, were charged that they, on or about the 15th day of Isfandar 1359 F. (15th January 1950) at 10 o'clock in the night, abducted one Muneem Lachiah, Telanga, resident of Dognelli, who was at his house, and carried him outside the village where they did him to death, due to enmity, by hitting him with stick and spear and that they took away a silver kardoda and arm kada from his body and that they thereby committed offences punishable under Ss. 243 and 330, A.P.C.\n3.  The learned Sessions Judge convicted the accused 1 to 4 of the offence under S. 243, A.P.C. and sentenced them to transportation for life. The accused 2 was further convicted under S. 337, A.P.C. and sentenced to a term of two years rigorous imprisonment. The sentences of transportation for life were submitted to the High Court for confirmation in accordance with the relevant provision of law in Hyderabad.\n4. The High Court of Hyderabad, in appeal, agreed with the conclusion reached by the learned Sessions Judge and confirmed the conviction of the accused 1 to 4 under S. 243, A.P.C. and the sentences of transportation for life awarded to them by the Court below.\n5. One of the learned Judges of the High Court simply confirmed the sentence under S. 243, A.P.C. but another learned Judge held that the accused were guilty of the offences under Ss. 243 and 330, Hyderabad Criminal Procedure Code (possibly meaning there by A.P.C.) and sentenced each of the accused to undergo life imprisonment on the above charges ill-realising that, in the whole of the judgment with which he agreed, there was not a word to justify the conviction under S. 330 A.P.C.\n6. In substance, the judgment of the High Court came to this that the accused were convicted of the offence under S. 243, A.P.C. and sentenced to undergo life imprisonment in respect of the same.\n7.  There was no. direct evidence of the accused having committed the offence. The whole case rested on circumstantial evidence and that evidence consisted of the testimony of three witnesses, the wife of the deceased P. W. 5, the young son of the deceased P. W. 6 and a neighbour P. W. 7, who deposed that, on the evening of the day in question, all the four accused had gone to the house of the deceased and accosted him, asking him to accompany them to the well of one Deshmukh.\n8. There was evidence if ill-will between the deceased and the accused in that the accused were alleged to have abducted the deceased a month before the alleged murder and set him at liberty on payment of ransom of Rs. 350/- and also that the accused had, only three days before, deprived the deceased of a goat belonging to him from the possession of Kumari Sayiga P. W. 2 and slaughtered it and ate it away and there was consequently a quarrel arising out of the search of the house of accused 1 and 2 made at the instance of the deceased.\n9. Lastly, there were recoveries of the silver kardoda at the instance of accused 2, a white turban and a stick from the house of accused 1 and another stick from the house of accused 3. The silver kardoda was alleged to have been removed from the person of the deceased and buried in a secluded spot which was pointed out by accused 2 and the white turban was alleged to have been stained with human blood.\n10. These were the pieces of circumstantial evidence which, according to the learned Sessions Judge, pointed inevitably to the conclusion that accused 1 to 4 were responsible for his death. The learned Judges of the High Court also were of the opinion that there were eye-witnesses but a strong motive for the murder and the fact of all the accused having abducted the deceased on the night before the dead-body of the deceased was found were proved and these circumstances led to the conclusion that the accused were the perpetrators of the crime.\n11.  There is no. doubt that the deceased was done to death in a brutal manner and after he was so done to death his dead-body was brought to the doddi or the backyard of his house and was hung there by means of a piece of rope tied round his neck. The theory of suicide was rightly discarded by the Courts below and it was evident on the inquest report as also on the doctor's evidence that the injuries inflicted on the person of the deceased were homicidal injuries. The only question, therefore, which remained to be considered by the Courts below was whether accused 1 to 4 were responsible for those injuries and the consequent death of the deceased.\n12.  There is also no. doubt that accused 1 to 4 had in fact approached the deceased on the evening of that day and accosted him asking him to accompany them to the well of Deshmukh. This fact was proved by the evidence of the witnesses P. W. 5, P. W. 6 and P. W. 7 all of whom were believed by both the Courts below.\n13.  It could not, however, by itself be enough to connect accused 1 to 4 with the crime. There was no. evidence at all of any further movements of accused 1 to 4 or one or more of them nor was there anything to connect them with the crime except the recoveries made at their instance as evidenced by the various panchnamas which were proved before the learned Sessions Judge. These panchnamas were criticised by the learned counsel for the appellants as containing evidence which was clearly inadmissible inasmuch as they contained statements alleged to have been made by accused 1, 2 and 3 in regard to their participation in the crime. Discarding these pieces of inadmissible evidence, therefore, there were indications of accused 1, 2 and 3 having pointed out the several articles which were recovered at their instance as stated in the respective panchnamas and they proved that silver kardoda was recovered at the instance of accused 2, a white turban and the stick were recovered at the instance of accused 1 and another stick was recovered at the instance of accused 3.\n14.  The while turban, even though it was alleged to have been stained with human blood was, however not sent for analysis to the chemical analyser and the allegation in regard to its having been stained with human blood stood unconfirmed by any such analysis. The sticks also which were recovered at the instance of accused 1 and 3 were not alleged to bear any stains of human blood and there was nothing to distinguish these sticks from any other sticks which might ordinarily be found at the place of such people. The silver kardoda was an article in common use by the people in that locality and there was nothing to identify it with the silver kardoda alleged to have been worn by the deceased except the bare word of his wife P.W. 5. These recoveries, therefore, could not connect accused 1 to 4 with the crime. The recovery of the silver kardoda could, at best, prove that accused 2 was in the know of the same after it had been removed from the person of the deceased by whosoever was responsible for doing the deceased to death. No charge of murder could certainly be entertained against him by reason of such recovery. The stick and the white turban recovered at the instance of accused 1 could also not connect accused 1 with the crime, the stick being an ordinary stick which was not proved to be the weapon of offence and the white turban not having been sent for chemical analysis of the blood stains alleged to have been found upon the same. The stick recovered at the instance of accused 3 was similarly innocuous and none of these recoveries could be enough to fasten upon accused 1 to 3 responsibility for the crime.\n15.  The motive which was alleged against accused 1 to 4 also was equally unhelpful to the prosecution. The previous incident of accused 1 to 4 having abducted the deceased and having set him at liberty on receiving a ransom of Rs. 350 could not show that accused 1 to 4 had any grudge against the deceased. If at all they had received the ransom of Rs. 350, they could not be said to bear and ill-will against the deceased by reason of having received that payment. The later incident of the goat having been slaughtered and eaten away by accused 1 to 4 might have led to some sort of bitterness between the deceased and them but the animosity would be on the side of the deceased and not of the persons who had eaten the goat. The version, however, given by the wife of the deceased, P. W. 5, in regard to this incident having been responsible for the enticing away of the deceased was not such as to carry conviction with the Court. In the inquest report which was made on 16-1-1950, the wife of the deceased had stated that accused 1 to 4 had called her husband to settle the account of the excise contract. In the evidence which she gave before the Sessions Court, she stated that on her enquiry from accused 1 to 4 why they were taking him away they replied that they had eaten the goat and they wanted to repay him for it. Both these statements could not be reconciled with each other and whatever be the correct version it rested merely on the bare word of the witness herself and was not corroborated by either of the two witnesses. P.W. 6 or P. W. 7. Under the circumstances, the motive could not be said to have been satisfactorily established by the prosecution and that circumstance was certainly of no. avail.\n16.  If, therefore, neither the motive nor the recoveries could be of any help to the prosecution, the only thing which remained was the circumstance of accused 1 to 4 having accosted the deceased on the evening of that day and taken him away to the well of Deshmukh without anything more to connect them with the crime. The only offence which could be laid at their door on that fact being established could be one of abduction which would involve the infliction upon them of a punishment which would certainly not be life imprisonment. As we are informed all the accused have been undergoing sentences of rigorous imprisonment for the last 5 years and more and that would be more than enough to atone for the offence of abduction, if at all they committed the same.\n. The conviction for the offence under S. 243, A.P.C. however, could not be sustained on the evidence as it stands on the record. It is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. Both the Court below considered that the fact of accused 1 to 4 enticing away the deceased on that evening and the further fact of the deceased having been found hanging in the doddi or the backyard of his house were by themselves enough to lead inevitably to the conclusion that it was the accused and the accused only who were responsible for the crime. We cannot agree with this conclusion reached by the Courts below. In our opinion, these circumstances, by themselves, are not enough without anything more to connect the accused with the crime and the accused are entitled to be acquitted of the offences with which they have been charged.\n17.  In view of the fact that they have already undergone rigorous imprisonment for 5 years and more, we do not think it necessary to order any further investigation into any other offence accused 1 to 4 might be alleged to have committed in connection with the occurrence. In the case of accused 2 also, we do not think it necessary to express any opinion as regards his conviction under S. 337, A.P.C. because he has already undergone rigorous imprisonment for two years which was imposed upon him by the learned Sessions Judge in respect of the same.\n18.  We accordingly allow the appeals, quash the convictions and the sentences imposed upon the appellants under S. 243, A.P.C. and order that the appellants be discharged and set at liberty forthwith.\nAppeal allowed.\n"}
+{"id": "mn1uj3a1ii", "title": "", "text": "Rammi Alias Rameshwar v State Of Madhya Pradesh\nSupreme Court of India\n\n21 September 1999\nCr.A. No. 61 of 1999\nThe Judgment was delivered by: K.T.Thomas, J.\n1.  A manslaughter in an automobile in locomotion is the subject matter of this case. The slaughtered man was a Home Guard personnel, by name Sardar Singh Thakur. When he boarded the bus destined to Naseerabad on the evening of 20.7.1985, he had no foreboding that it was his last journey alive. Before the bus could reach its terminus he was finished by armed assailants inside the vehicle while it was in motion. Appellants (Rammi alias Rameshwar and Bhura alias Sajjan Kumar) were two of the three persons arraigned before the Sessions Court. Though the Sessions Judge acquitted all of them a Division Bench of the High Court of Madhya Pradesh convicted the two appellants u/s. 302 read with S. 34 of the IPC and sentenced them to imprisonment for life. The third accused (Suresh alias Chhigga) died before the appeal was decided by the High Court. These appeals were filed by the two convicted persons as of right u/s. 379 of the Code of Criminal Procedure (for short the Code) and u/s. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.\n2.  The story of the prosecution, as revealed through evidence, can be summarised like this: One Channa Babu (brother of appellant Rammi and late Chhigga) was murdered for which the police charge-sheeted Sardar Singh Thakur (the deceased in this case) and his brother Shyam Singh (PW-3 in this case) and a few others. From then on these accused were thirsting for revenge for the murder of Channa Babu. They were prowling for an opportune opportunity to strike back. In such a background accused came to know that Sardar Singh Thakur was travelling in a bus. Accused wanted to avail themselves of that opportunity and boarded the bus on the way. After the vehicle moved for some distance the assailants mounted the attack on the deceased with chopper and knives.\n3.  The assailants inflicted as many as 12 incised injuries on Sardar Singh Thakur. Those who tried to intervene were told by the assailants to mind their own business as the attack was intended for a revenge. After accomplishing the object all the assailants alighted from the vehicle and escaped from the scene. The passengers of the bus became frightened and most of them jumped out of the vehicle and ran helter-skelter.\n4.  The stage carriage was then driven towards the police station by its driver (PW-12 Jabbar Khan). Ext. P-12 - First Information Statement was lodged at the police station by the conductor of the vehicle (PW-8 Ramashray). The accused were arrested and after interrogation the weapons used for the murder were recovered by PW-13 Investigating Officer from hidden places on the basis of informations elicited from the accused.\n5.  There is no doubt that deceased Sardar Singh Thakur was murdered inside the said bus at about 5 P.M. while the bus was in motion. In fact that part of the case is not controverted by the appellants. The dispute now centers round the identity of the assailants. PW-8 Ramashray and PW-12 Jabbar Khan supported the case of the prosecution regarding the identity of the assailants, besides one of the passengers of the bus (PW-9 Ram Dulare). But the trial court was not impressed by their evidence. Nor did the trial court place any reliance on the evidence relating to the recovery of weapons which the prosecution adduced as per S. 27 of the Evidence Act. But the Division Bench of the High Court made complete reversal of the findings of the trial judge and made a scathing observation in the penultimate paragraph of the judgment under appeal, as under: Before parting with this appeal, we cannot resist from observing that the perverse reasoning and conclusions given by the trial judge in appreciating the evidence in the instant case cannot be supported. Such unrealistic approach in appreciating evidence in a criminal case shakes the confidence of the society in the legal system itself and our interference, therefore, is urgently called for.\n6.  Shri Uday Umesh Lalit, learned counsel for the appellants contended that the reasoning of the trial judge regarding different items of incriminating evidence did not warrant interference in an appeal against acquittal as the views expressed by the trial judge were not unreasonable. Learned counsel dealt with the evidence almost threadbare in his endeavour to show that the sessions judge was not altogether wrong in acquitting the appellants.\n7.  PW-9 Ram Dulare (a passenger in the bus) in his evidence said that he saw the appellants attacking the deceased with chopper and knives. The trial court pointed out that he did not inform the members of the family of the deceased nor did he bring this matter to the notice of the police. The Sessions Judge regarded the above as a conduct incompatible with the normal behaviour of a person witnessing such a crime.\n8.  Such a remark on the conduct of a person who witnessed the murderous attack is least justified in the realm of appreciation of evidence. This Court has said time and again that the post event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would, therefore, be different. We have not noticed anything which can be regarded as an abnormal conduct of PW-9 Ram Dulare.\n9.  Nonetheless, there are two broad circumstances which would bridle the court from placing full reliance on the evidence of PW-9. First is, though his name appeared in the First Information Statement its author PW-8 (the conductor of the bus) said in his evidence that Ram Dulare was not a person known to him. Second is, PW-9 has said in cross-examination that he did not mention anything about the incident to anybody else at all until he was questioned by the police.\n10.  Though the aforesaid two incongruities came on record during cross-examination no attempt whatsoever was made by the Additional Public Prosecutor to secure any explanation regarding such aspects.\n11.  Regarding the recovery of weapons, the prosecution could utilize statements attributed to the accused on the basis of which recovery of certain weapons was effected. S. 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood-stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which accused had furnished to the police officer and which led to the recovery of the weapons.\n12.  True, such information is admissible in evidence under S. 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.\n13.  PW-13 Investigating Officer has said in his evidence that the accused were arrested on the succeeding day of the occurrence from a different place and they were interrogated by him. But PW-12 (the driver of the bus) has said in his evidence that after he reached the police station on the same evening he saw the three accused inside the police station. We do not know whether it was an error which PW-12 committed during cross-examination. No doubt the Public Prosecutor who conducted the prosecution did not choose to put any question to PW-12 also in re- examination.\n14.  As it is, there is material discrepancy regarding the time when police took the accused in custody. If PW-13 is correct the accused would have been arrested only on the succeeding day of occurrence. But if PW-12 is correct the accused should have been interrogated on the very day of occurrence in which case the accused would have had no occasion to conceal the weapons.\n15.  With the above scrutiny we are unable to place any reliance on the evidence of PW-13 regarding recovery of the weapons at the instance of the accused. In this context we are tempted to observe that the Additional Public Prosecutor who conducted prosecution has not discharged his responsibility as he avoided putting any question to those witnesses when an opportunity for re-examination was provided to him.\n16.  The very purpose of re-examination is to explain matters which have been brought down in cross-examination. S. 138 of the Evidence Act outlines the amplitude of re-examination. It reads thus: Direction of re-examination.- The re- examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.\n17.  There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.\n18.  Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the Court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.\n19.  A Public Prosecutor who is attentive during cross- examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination.\n20.  But in this case the Additional Public Prosecutor in the trial court seemed oblivious of such a right. It is rather amazing that he did not avail himself of that right in respect of a single witness. The defence counsel would have had a free day as he was left totally undisturbed by the Public Prosecutor. Be that as it may, side-stepping above items of evidence is hardly sufficient to end the woes of the appellant because the prosecution examined two of the most important witnesses to the occurrence, PW-8 Ramashray - the conductor, and PW-12 Jabbar Khan - the driver.\n21.  PW-8 had given three former statements regarding the occurrence (Ext.P-12 the First Information Statement, and then what the Investigating Officer recorded u/s. 161 of the Code, and another statement which the magistrate recorded u/s. 164 of the Code). The defence counsel used all those three statements to ferret out one or two omissions therefrom for confronting PW-8. The trial court on the strength of such answers castigated PW-8. This was what the Sessions Judge said about their evidence: Ramshray (PW-8) stood contradicted on material and vital points from the first information report Ex.P.11, case diary statement ex.D-1. Those contradictions relate to the material and vital points. These details go to show that Ramshray (PW-8) is not a truthful or reliable witness. He was made to modulate his version but to suit the prosecution case and it is not safe to place implicit reliance on his testimony. The evidence of this witness appears artificial, unnatural and improbable and suffers from intrinsic infirmities. In the circumstances, his testimony cannot be accepted on its face value.\n22.  Shri Uday Umesah Lalit, learned counsel for the appellant tried to support the said reasoning of the trial court. We feel that the approach made by the trial court in groping for discrepancies in the testimony of such important witnesses had resulted in the unmerited acquittal.\n23.  When eye-witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.\n24.  It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt S. 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below:\n(155) Impeaching credit of witness.- The credit of a witness maybe impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.\n25.  A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. S. 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross-examiner is enjoined to comply with the formality prescribed therein. S. 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded u/s. 161 of the Code) for the only limited purpose, i.e. to contradict the witness.\n26.  To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and anr. vs. State of U.P., AIR 1959 SC 1012 1959 Indlaw SC 236).\n27.  In this case the evidence of the conductor and the driver of the bus evinces credibility. As pointed out earlier they are the most natural witnesses for the murder which took place inside the bus. The minor variations which the defence counsel discovered from their former statements did not amount to discredit the core of their evidence. The strained reasoning of the Sessions Judge for side-stepping their evidence is too fragile for judicial countenance. The Division Bench of the High Court has rightly reversed the finding regarding the credibility of their evidence.\n28.  For the aforesaid reasons we agree with the High Court that appellants are liable to be convicted u/s. 302 of the IPC. We, therefore, dismiss this appeal.\nAppeal dismissed.\n"}
+{"id": "Arp5B1Id9Z", "title": "", "text": "Chinnaswamy v State Of Andhra Pradesh\nSupreme Court of India\n\n25 July 1962\nCriminal Apeal No. 6 of\n1960\nThe Judgment was delivered by : Kailas Nath Wanchoo, J.\n1.  This is an appeal by special leave against the judgment of the Andhra Pradesh High Court. The appellant was convicted under s. 411 of the Indian Penal Code by the Assistant Sessions Judge of Kurnool. Along with him, another person Hussain Saheb was also tried and was convicted under so. 457 and 380 of the Indian Penal Code. The case for the prosecution briefly was that the house of Rahayya in Dudyia was burgied on the night of April 20, 1957. Ramayya and his wife were sleeping outside and on waking in the morning they found that the house had been burgled and valuable property stolen. The matter was reported to the police and during the course of investigation the police recovered 17 ornaments on the information given by the appellant. The other accused had also given information on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge on a consideration of the evidence came to the conclusion that the other accused had actually committed house breaking and had removed ornaments from the house of Ramayya and had handed over 17 ornaments out of that property to the appellant. He also came to the conclusion that the seventeen ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under s. 411 of the Indian Penal Code. The appellant and the other accused went in appeal to the Sessions Judge. The Sessions Judge held that the appellant had not been proved to be in possession of the seventeen ornaments which were recovered at his instance from a garden. The statement of the appellant in this respect was that \"he would show the place where he had hidden them (the ornaments)\". Thereafter he went to the garden and dug out two bundles containing the seventeen ornaments from there. The Sessions Judge held that the recovery of ornaments from the garden at the instance of the appellant was proved; but he further held that that part of the statement of the appellant where he said that he had hidden the ornaments was not admissible in evidence. Therefore, he took the view that as the ornaments were recovered from a place which was accessible to all and sundry and there was no other evidence to show that the appellant had hidden them, it could not be held that the ornaments were in the appellant's possession. He therefore gave the benefit of doubt to the appellant and ordered his acquittal. He also acquitted the other accused at whose instance one of the stolen ornaments was recovered. This accused had stated that he given the ornaments to Bada Sab (P. W. 5) and took the police party to Bada Sab and asked him to return the ornaments, which Bada Sab did. The Sessions Judge, however, on a consideration of the evidence against the other accused thought the case against him was also doubtful and ordered his acquittal, though he ordered the return of ornaments to Ramayya.\n2.  This was followed by a revision by Ramayya against the appellant and the other accused. The High Court has allowed the revision and directed that the matter should go back to the Sessions Judge so that the accused should be re tried on the charges on which they had been brought to trial on the former occasion. It is against this order of the High Court directing retrial that the present appeal by special leave is directed. It may be mentioned, however, that only Chinnaswamy Reddy has appealed while the other accused has not appealed against the order of the High Court.\n3.  The main contention of the appellant before us is that this was a revision by a private party. There were no exceptional circumstances in this case which would justify the High Court in interfering with an order of acquittal at the instance of a private party. Further, it is urged that a. 439 (4) of the Code of Criminal Procedure specifically forbids the High Court from converting a finding of acquittal into one of conviction and that a reading of the judgment of the High Court shows that by the indirect method of retrial the High Court has practically directed the Sessions Court to convict the appellant and thus indirectly converted finding of acquittal into one of conviction, through it has not been done and could not be done directly. The extent of the jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal has been considered by this Court on a number of occasions. In D, Stephens v. Nosibolla [1951] S.C.R. 284 1951 Indlaw SC 4 this Court observed\n\"The revisional jurisdiction conferred on the High Court under s. 439 of the Code of Criminal Procedure is not to be lightly exercised when it in invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under a. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record.\"\n4.  Again, in Logendranath Jha v. Shri Polailal Biswas(1951) S.C.R. 676 1951 Indlaw SC 17, this Court observed\n\"Though sub s. (1) of s. 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by s. 423, yet sub a. (4) specifically excludes the power to \"'convert a finding of acquittal into one of conviction\". This does not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing, sentence on him by ordering are trial.\"\n5.  These two cases clearly lay down the limits of the High Court's jurisdiction to interfere with an order of acquittal in revision; in particular, Logendranath Jha's case (1951) S.C.R. 676 1951 Indlaw SC 17 stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of s. 439 (4) and that the High Court cannot do this even indirectly by ordering re trial. What had happened in that case was that the High Court reversed pure findings of facts based on the trial court's appreciation of evidence but formally complied with sub a. (4) by directing only a retrial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court. In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.\n6.  It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub s. (4) of a. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of a. 439 (4). We have therefore to see whether the order 'of the High Court setting aside the order of acquittal in this case can be upheld on these principles.\n7.  A perusal of the judgment of the High Court shows that the High Court has gone into the evidence in great detail so far as the case against the appellant was concerned. In our opinion, the High Court should not have dealt with evidence in such detail when it was going to order a retrial, for such detailed consideration of evidence, as pointed out in Logendranath's case [1951] S.C.R.676 1951 Indlaw SC 17. amounts to loading the dice against the appellant, when the case goes back for retrial. If the matter stood at this only, we would have no hesitation in setting aside the order of the High Court directing a retrial; but there is one important circumstance in this case to which the High Court has adverted in passing, which, in our opinion, was sufficient to enable the High Court to set aside the acquittal in this case. It would then have been unnecessary to consider the evidence in that detail in which the High Court has gone into it, and thus load the dice against the appellant, when the case goes back for retrial. That circumstance is that the Assistant Sessions Judge had admitted in evidence that part of the statement of the appellant in which he stated that he would show the place where he had hidden the ornaments and relying on it he held that the appellant was in possession of the seventeen ornaments, he had dug out from the garden which he owned along with others. The Sessions Judge however held that that part of the statement of the appellant where he stated that he had hidden the ornaments was inadmissible in evidence. The same applies to the case against the other accused, 'who had stated that he had given one ornament to Bada Sab and would get it recovered from him. Though the Sessions Judge has not in specific trems ruled out that part of the other accused's statement where he said that he had given the ornament to Bada Sab, he did not consistently with what be said with respect to the appellant, attach importance to this statement of the other accused. If therefore this part of the statement of the appellant and the other accused which led to discovery of ornaments is admissible, it must be held that the appeal court wrongly ruled out evidence which was admissible. In these circumstances, the case would clearly be covered by the principles we have set out above in as much as relevant evidence was ruled out as inadmissible and the High Court would be justified in interfering with the order of acquittal so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible. It seems that the High Court was conscious of this aspect of the matter, for it says in one part of the judgment that the only possible inference that could be drawn was that the appellant was in possession of stolen goods before they were put in that secret spot, as admitted by the appellant in his statement, part of which is admissible under s. 27 of the Indian Evidence Act. If the High Court had confined itself only to the admissibility of this part of the statement, it would have been justified in interfering with the order of acquittal. Unfortunately, the High Court went further and appraised the evidence also which it should not have done, as held by this Court in Logendranath's case [1951] S.C.R. 676 1951 Indlaw SC 17. However, if admissible evidence was ruled out and was not taken into consideration, that would in our opinion be a ground for interfering with the order of acquittal in revision.\n8.  Let us then turn to the question whether the statement of the appellant to the effect that ,he had hidden them (the ornaments)\" and \"would point out the place\" where they were, is wholly admissible in evidence under s. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions Judge in this connection relied on Pulukuri Kotayya v. King Emperor [1946] L.R. 74 I.A. 65 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered s. 27 of the Indian Evidence Act, which is in these terms :\n\"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.\"\n9.  This section is an exception to ss. 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a magistrate. Section 27 allows that part of the statement made by the accused to the police \"whether it amounts to a confession or not\" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under s. 87. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under a. 17 and laid stress on the words \"so much of such information as relates distinctly to the fact thereby discovered\" in that connection. It held that the extent of the information admissible must depend on the exact nature of the discovered to which such information is required to relate. It was further pointed out that \"the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact.\" It was further observed. that\n\"Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.\" This was exemplified further by the Judicial Committee by observing\n\"Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence., the fact discovered is very relevant. If however to the statement the words be added with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.\"\n10.  If we may respectfully say so, this case clearly brings out what part of the statement is admissible under a. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. S. 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect 'where he had hidden them\" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under s. 27 of the Indian Evidence Act. The words \"where he had hidden them\" are not on a par with the words \"with which I stabbed the deceased\" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and axe distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words \"where he had hidden them \" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place, s 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellants would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the crime, i. e. in this case, the prosecution will have to show that they are stolen property. We are therefore of opinion that the entire statement of the appellant (2) as well as of the other accused Who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by. the Sessions Judge, this is,% fit case where the High Court would be entitled to set aside the finding of acquittal in revision, though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.\n11.  The next question is what order should be passed in a case like the present. The High Court also considered this aspect of the matter. Two contingencies arise in such a case. In the first place there may be an acquittal by the trial court. In such a case if the High Court is justified, on principles we have enunciated above, to interfere with the order of acquittal in revision, the only course open to it is to set aside the acquittal and send the case back to the trial court !or retrial. But there may be another type of case, namely, where the trial court has convicted the accused while the appeal court has acquitted him. In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside, the question is whether the appeal court should be ordered to re hear the appeal after admitting the statement it had ruled out or whether there should K necessarily be a retrial. So far as this is concerned, we are of opinion that it in open to the High Court to take either of the two courses. It may order a retrial or it may order the appeal court to re hear the appeal. It will depend upon the facts of each case whether the High Court would order the appeal court to re hear the appeal or would order a retrial by the trial court. Where, as in this case, the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court, the proper course in our opinion is to send back the appeal for rehearing to the appeal court. In such a case the order of the trial court would stand subject to the decision of the appeal court on re hearing. In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court. In the circumstances we are of opinion that the proper course is to direct the appeal court to re hear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take. We should like to add that the appeal court when it re hears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was, considered inadmissible previously by it. We therefore allow the appeal subject to the modification indicated above.\n12.  This leaves the case of the other accused. We are of opinion that as we are directing the appeal court to re hear the appeal with respect to the appellant it is only proper that the order relating to the other accused should also be set aside and his appeal should also be re heard in the manner indicated above. We therefore set aside the order of the High Court with respect to the retrial of the other accused and direct that his appeal will also be re heard along with the appeal of the appellant.\nAppeal allowed\n"}
+{"id": "ppaX3QjBvK", "title": "", "text": "State of Uttar Pradesh v Sukhbasi and Others\nSupreme Court of India\n\n10  May  1985\nCr.As. Nos. 267-270 of 1975\nThe Judgment was delivered by: SEN, J.\n1.  These appeals by special leave are preferred by the State Government against the judgment and order of the Allahabad High Court dated May 25, 1973 acquitting the respondents Sukhbasi, Ram Sanehi and Ram Shanker of offences punishable under S.302 read with S.34 and under S.449, 460 and 394 of the Indian Penal Code, 1860, for the commission of which the Civil and Sessions Judge, Farrukhabad by his judgment dated September 21, 1972 had sentenced them to death on the first count and rigorous imprisonment for a period of 7 years under the remaining three counts. The learned Sessions Judge had also convicted the respondent Chhotelal under S. 411 of the Indian Penal Code, 1860 and sentenced him to undergo rigorous imprisonment for 3 years and the respondent Ashok Kumar under S. 120B of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for 2 years. These respondents have also been acquitted by the High Court for the commission of offences with which they were charged.\n2.  We have with the assistance of learned counsel, appearing for the parties, gone through the judgment of the High Court as well as the evidence of the material prosecution witnesses. This was a case where during the night between December 25/26, 1970, there was a brutal and dastardly murder of Lala Bhagwat Dayal, a millionaire and his wife Smt. Ramwati Devi at their house in Chhibramau. They had been tied with rope and strangulated to death after being subjected to torture. Lala Bhagwat Dayal was the richest person of the town and earlier carried on the sarafa business, but had closed the business due to his old age and started lending money on pawn of gold and silver ornaments at his house. The miscreants broke open the iron safe kept in the bedroom of Bhagwat Dayal and removed all gold and silver ornaments worth about Rs. 10 lakhs and cash worth Rs. 22,424/-. The last persons to have seen Bhagwat Dayal alive were their servant Rameshwar, P.W. 7 and old Munim Bharat Singh, P.W. 18. Their version is that they both saw the respondents Sukhbasi and Ram Sanehi, two of the carpenters working on the remodelled house of Bhagwat Dayal and their companion Ram Shanker entering the house as they left on the fateful evening at about 7.30 p.m. The respondents Sukhbasi and Ram Sanehi along with their companion Ram Shanker effected an entry into the house on the pretext that they wanted to pledge their ornaments. On the next morning at about 7 a.m. Rameshwar, P.W. 7 reported for duty but found the sadar door still closed from inside although the deceased Bhagwat Dayal was an early riser and used to open it much earlier. Shortly thereafter, the other carpenter Sheo Murti, P.W. 15 also came for work. On finding no response they were apprehensive that something untoward had happened and Rameshwar immediately left for the house of Gajadhar Prasad, brother of the deceased, nearby and reported this to him and his sons Chandra Prakash, P.W. 28 and Ram Prakash. On hearing this, Ram Prakash returned with Rameshwar, P.W. 7 and again raised shouts but still there was no response. The two of them climbed over the roof of the house of Bakshiji and from that roof they went over to the roof of the deceased's house and finding the door of the staircase open which was rather unusual they descended over the flight of the stairs and came to the ground floor. They entered the living room and found the furnitures and other effects scattered about. They further noticed that in the bedroom though the beds were still spread over the cots the deceased Bhagwat Dayal and his wife Smt. Ramwati Devi were not to be found.\n3.   \nIn the meantime, Gajadhar Prasad and his son Chandra Prakash and other inmates of their house also arrived on the scene. They noticed that the anteroom next to the living room had been locked from outside and felt suspicious that perhaps some persons had intruded into the house the previous night and after murdering the old couple decamped with valuables keeping the dead bodies inside the anteroom. We are told that the gold and silver ornaments and cash worth about Rs. 10 lakhs were taken away, out of which gold and silver ornaments worth Rs. 1.50 lakhs were recovered from the house of the three respondents Sukhbasi, Ram Sanehi and Ram Shanker apart from currency notes of the value of Rs. 12, 424/- from that of the respondent Sukhbasi.\n4.  The First Information Report (Exh. Ka 60) was lodged by Chandra Prakash, P.W. 28 at Chhibramau Police Station at about 7.45 a.m. The report stated that the list of the looted property will be furnished later and contains the following recitals on which there was quite some discussion at the Bar.\n\"We saw that all the articles were lying scattered in the big room and the small room close-by was locked. Thereupon, all of us searched for the uncle and the aunt in the whole of the house; but they were not found.\nIt appears that at some hour during the night, bad characters murdered my uncle and aunt and shut them in the room and have looted away property.\"\n5.  Undoubtedly, this was a case where murder and robbery are proved to have been the integral parts of one and the same transaction. As held by us in Earabhadrappa v. State of Karnataka 1983 Indlaw SC 1611983 Indlaw SC 161, in somewhat similar circumstances where the servant betraying the trust of his employer strangulated the mistress of the house and decamped with her gold and silver ornaments which were later recovered, the presumption arising under Illustration (a) to S. 114 of the Evidence Act, 1872 is that not only the accused if their complicity is proved committed the murder of the deceased Bhagwat Dayal and his wife Ramwati Devi but also committed robbery of the gold and silver ornaments which formed part of the same transaction. It was cruel hand of destiny that they met the violent end by being strangulated to death by persons who committed the robbery in a cruel and dastardly manner and in cases of such murders committed with extreme brutality the only sentence is one of death as it fulfils the test of 'rarest of the rare' laid down in Bachan Singh v. State of Punjab 1980 Indlaw SC 5861980 Indlaw SC 586.\n6.  The heinous manner in which the diabolical act was committed is apt to prejudice one's mind and therefore, we have scrutinized the prosecution evidence with care to determine whether the conviction of the respondents by the learned Sessions Judge for different offences with which they were charged was proper or not or whether the order of acquittal recorded by the High Court has caused a flagrant miscarriage of justice which warrants an interference. Having given the matter our anxious consideration we cannot say that this was a case where the only view possible was the one taken by the learned Sessions Judge, namely, that of guilt of the respondents particularly the accused Sukhbasi, Ram Sanehi and Ram Shanker. There is much to be said for the contrary view expressed by the learned Judges of the High Court who have in their judgment carefully marshalled the evidence and drawn out serious infirmities in the prosecution case.\n7.  The prosecution case against the respondents rests purely on circumstantial evidence. The circumstances relied upon by the prosecution against the principal accused Sukhbasi, Ram Sanehi and Ram Shanker for the charge of commission of murder of the old couple Bhagwat Dayal and his wife Smt. Ramwati Devi and robbery of their gold and silver ornaments, are :\n(1) The fact that they were seen entering into the house of the deceased at about 7.30 p.m. on the fateful evening and were not seen leaving the house later that night by anyone.\n(2) The accused Sukhbasi and Ram Sanehi along with Sheo Murti, P.W. 15 were engaged by the deceased Bhagwat Dayal as carpenters for the woodwork of his newly remodelled house.\n(3) On the next morning i.e. on December 26, the accused Sukhbasi and Ram Sanehi did not come for work although the other carpenter Sheo Murti, P.W. 15 turned up as usual.\n(4) The recovery of gold and silver ornaments and cash from the house of Sukhbasi at village Behta, seven miles away from Chhibramau on December 27 and 28 i.e. soon after the commission of the murders and robbery, by the Station Officer Ganga Prasad Tripathi, P.W. 31 and seized under seizure memos (Exhs. Ka 53, 54 and 55), and recovery of gold and silver ornaments from the house of the accused Ram Sanehi at village Akbarpur, some 8-10 miles away therefrom, by Station Officer P.W. 31 on December 28 and seized under seizure memo (Exh. Ka 57).\n(5) The seizure of gold and silver ornaments from the house of the accused Chhotelal, P.W. 25, brother of the accused Sukhbasi at village Behta by P.W. 31 on January 19, 1971 and seized under seizure memo (Exh. Ka 56).\n(6) The retracted confession (Exh. Ka 61) made by the accused Ram Shanker before Shri Harish Chander, P.W. 29, Magistrate (First Class), Farrukhabad on January 22, 1971 and the fact that he had sold a gold ring to Ram Chander, P.W. 27. The circumstances appearing against the accused Ashok Kumar are that the slip (Exh. Ka 42) purported to have been given by Kirpal Singh Munim was in his handwriting and given to the accused Sukhbasi, Ram Sanehi and Ram Shanker by way of introduction.\n8.  The High Court has with meticulous care analyzed the entire evidence to support its judgment of acquittal. We shall first take up the appeal against the respondent Ashok Kumar who had been found guilty by the learned Sessions Judge of a charge under S. 120B of the Indian Penal Code, 1860. The gravament of the charge against him was that he in agreement with the accused Sukhbasi, Ram Sanehi and Ram Shanker forged the slip (Exh. Ka 42) purporting to be a note of Kirpal Singh Munim. It is the prosecution case that with the help of the same the three accused were successful in getting an entry into the house of the deceased Bhagwat Dayal. The slip was alleged to have been found by P.W. 31 beneath the pillow of the deceased in his bedroom sometime after the nightfall of December 26, 1970 i.e. long after the police arrived at the scene. To substantiate a charge under S. 120B of the Code, there must be a criminal conspiracy at least between two or more persons. There is not an iota of evidence to establish that the three accused prior to the commission of the offences had conspired together with the accused Ashok Kumar and got forged from him the ruqqa (Exh. Ka 42) in the name of Kirpal Singh Munim to secure an entry into the house of the deceased. There is nothing to show that the accused Ashok Kumar had been associating with the other accused. Although the accused Ashok Kumar had admitted that the parcha (Exh. Ka 42) was in his handwriting, but his version is that when he was arrested on January 2, 1971 the document was got written by him by P.W. 31 by use of force. The High Court rightly observed that it is difficult to believe that the Investigating Officer did not even touch the cot of the deceased for about 8 to 10 hours in order to find out if there was any clue. Again, the two accused Sukhbasi and Ram Sanehi did not stand in need of any recommendatory letter when they were working at the house of the deceased for about a month and were therefore very well known to him personally. Further, the deceased in all probability would know the handwriting of Munim Kirpal Singh and he would at once have detected the forgery. In view of all this, learned counsel for the appellant fairly stated that he could not support the appeal against the respondent Ashok Kumar and accordingly the State appeal against his acquittal by the High Court is dismissed.\n9.  That takes us to the appeal against the three respondents Sukhbasi, Ram Sanehi and Ram Shanker. In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with guilt of the accused, but they must be entirely incompatible with the innocence of accused and must exclude every reasonable hypothesis consistent with his innocence. Such a conclusion is not possible in the instant case. It appears that the deceased Bhagwat Dayal earlier carried on a sarafa business but had closed that business due to his age and started lending money on pawn of gold and silver ornaments at his house. He had remodelled his residential house and the woodwork was going on for about a month and the accused Sukhbasi and Ram Sanehi along with Sheo Murti, P.W. 15 were employed by him as carpenters. The topography of the place as evident from the site plan shows that there was only one sadar darwaza i.e. the main door from which one could get an entry into the house. In support of its case that the three accused had effected an entry into the house of the deceased on the fateful evening at about 7.30 p.m., the prosecution has examined 4 witnesses, namely, Rameshwar P.W. 7, servant of the deceased Bhagwat Dayal, Bharat Singh P.W. 18, old Munim of the deceased who had started a sarafa business of his own, Dr. Sukhbasi Lal P.W. 5, Homoeopath who had his shop in line with the sadar darwaza of the house of the deceased and Abdul Qarim P.W. 9, a shopkeeper nearby. The High Court on a careful consideration of these witnesses found considerable doubt as to their credibility as truthful witnesses and has given weighty and cogent reasons for discarding their evidence.\n10.   In the first place, it is difficult to believe that deceased would have relieved his old servant Rameshwar, P.W. 7 when at least one unknown person, namely, the accused Ram Shanker, was present inside the house and there was no evidence to show that he knew him from before.\n11.   Secondly, it seems somewhat odd that the act of the accused Sukhbasi in closing the sadar darwaza from inside should not have aroused the suspicion of Rameshwar, P.W. 7 since the deceased was left alone in the house with his wife. The version of Rameshwar, P.W. 7 is that after finishing the day's work he left a glass of milk and bread in the bedroom of the deceased who asked him to go. At that precise moment Bharat Singh, P.W. 18 brought a jhola (Exh. 18) containing silver ornaments and handed it over to him for being given to the deceased for safe custody. He states that Bharat Singh told him that he had just returned from Agra with silver ornaments weighing 20.95 kg. but did not have the keys of his shop with him and therefore wanted to keep the ornaments with the deceased and would come in the morning to take them away. He further states that he took the jhola and passed it on to the deceased and as he was about to leave, he saw the three accused Sukhbasi, Ram Sanehi and Ram Shanker in the passage leading to the sadar darwaza and that they had come with a note (Exh. Ka 42) from Kirpal Singh Munim asking the deceased to accept the ornaments in pledge.Again, he had admitted before the committing Magistrate that he stayed on at Bhagwat Dayal's house till 8 p.m. but when confronted with this statement (Exh. Ka 2) he could not explain it away. During his cross-examination he denied that he knew the accused Sukhbasi and Ram Sanehi although the prosecution case is that they along with Sheo Murti, P.W. 15 were working as carpenters at the house of the deceased for about a month. The story that the accused carried a ruqqa (Exh. Ka 42) from Munim Kirpal Singh as a letter of introduction to the deceased appears to be rather improbable. There was no need for them to have taken a letter of introduction when two of them were known to the deceased.\n12.   Thirdly, the story that Bharat Singh, P.W. 18 came that night with newly purchased silver ornaments in a jhola (Exh. 18) from Agra and instead of keeping the ornaments at his own shop or his house, should have gone to the house of the deceased at 7.30 p.m. appears to be more than a mere coincidence. The testimony of Bharat Singh, P.W. 18 is that while he was coming out of the house of the deceased after entrusting the jhola containing silver ornaments, he noticed the three accused Sukhbasi, Ram Sanehi and Ram Shanker passing through the gallery and when he questioned Sukhbasi as to where he was going, was told that he had come to pledge his ornaments. His version is that he saw the ruqqa (Exh. Ka 42) but it did not raise his suspicion although he knew the handwriting of Kirpal Singh Munim. It was found beneath the pillow of the deceased in his bedroom. The High Court observes that the document was brought into existence subsequently. It is somewhat strange that the list of stolen ornaments furnished by Chandra Prakash, P.W. 28 to the Station Officer, P.W. 31 at about 12 noon contained all the particulars of the silver ornaments belonging to Bharat Singh, P.W. 18. He admits that he had given the particulars of the stolen gold and silver ornaments from the pawn register. If the prosecution case is true, then the moment Bharat Singh, P.W. 18 left he was followed by the three accused Sukhbasi, Ram Sanehi and Ram Shanker and the deceased could have found no time to have made entries of these ornaments in the register.\n13.   Fourthly, neither the testimony of Dr. Sukhbasi Lal, P.W. 5, nor of Abdul Qarim, P.W. 9 to the effect that they had seen the accused effecting an entry into the house of the deceased through the sadar darwaza at about 7.30 p.m. is worthy of any credence. The site plan shows that the shop of Dr. Sukhbasi Lal, P.W. 5 was in line with the sadar darwaza of the house of the deceased and he could not have seen the accused entering into the house through the door. His version is that on that evening he was sitting on the chabutra and the three accused came and sat at his shop for about 15 minutes saying that they had come to pledge their ornaments with the deceased Bhagwat Dayal. He asserts that he saw the accused entering into the house at 7.30 p.m. and they did not come out till 10.30 p.m. He explains that he kept on sitting on the chabutra till late into the night because his nephew had come and they were discussing some family matters. The High Court has disbelieved this witness observing that it was a chilly night in the month of December and it was improbable that Dr. Sukhbasi Lal, P.W. 5 would have sat on the chabutra of his shop rather than inside the shop and that if he had to discuss some family matters with his nephew, they would not have gone to his house which was nearby after closing the shop. The evidence of Abdul Qarim, P.W. 9 is no better. His shop admittedly is at some distance from the main door of the house of the deceased. In view of these infirmities, learned counsel for the appellant conceded that he could not rely on the prosecution evidence relating to the entry of the three accused Sukhbasi, Ram Sanehi and Ram Shanker.\n14.  We would have unhesitatingly maintained the conviction of the respondents Sukhbasi, Ram Sanehi and Ram Shanker for these offences as also the sentence of death passed on them by the learned Sessions Judge, if the evidence led by the prosecution to establish the recovery and seizure of the stolen property was credible and worthy of acceptance. Unfortunately for the State, the High Court has in its Judgment brought out serious infirmities in the prosecution case which create considerable doubt and suspicion about the complicity of the accused in the commission of the crime and the alleged recovery of the stolen property made at their instance.\n15.  A careful reading of the judgment of the High Court creates many doubts and difficulties. The learned Judges in the course of their judgment bring out the various serious infirmities in the prosecution case. We feel it would be better to set out in extenso the portion of the judgment dealing with the various circumstances appearing from the prosecution evidence which makes the alleged recoveries not free from suspicion.\n\"In the first instance, there is evidence to show that valuable ornaments were found spread out inside and outside the main living room but we have been left guessing as to what happened to these. Rameshwar, Bharat Singh and Chandra Prakash (P.Ws. 7, 18 and 28) have admitted that ornaments were found scattered inside or outside the room. Chandra Prakash has approximated the value thereof at Rs. 12,000/-. The Investigating Officer, Ganga Prasad Tripathi, P.W. 31 has also admitted the existence of these ornaments. He has not said a word as to how he dealt with these. No recovery memo was prepared in respect of these valuables; or at any rate, he does not say so. He does not even say as to how he dealt with these ornaments, that is to say, did he take them into custody or handed them over to someone, and if so, to whom. The witnesses aforesaid are also silent about it. The suggestion made by the learned counsel for the appellants is that these ornaments were subsequently utilized for the purpose of being shown as recovered ornaments. It is quite true that the appellants have been unsuccessful in proving it to be so but the matter is not free from suspicion. It was the duty of the prosecution to have explained what happened to these ornaments and it is unfortunate that we have been made to guess about itSecondly, the First Information Report was made at 7.45 a.m. The police station only two furlongs distance from the scene of the murder. The First Information Report expressed suspicion of two murders. The Investigating Officer arrived, as he says, not as the crime had been registered. He arrived at the scene and went inside and saw ornaments and other household effects lying scattered here and there. He found the anteroom locked from outside and broke open the lock. He went into the anteroom and found bodies covered by daris and clothings and also discovered that the necks of the two persons were fastened by ropes and their hands were tied behind their backs. He then became busy with controlling a large crowd which had invaded the house and had to devote about one and half hours in controlling it. He could have easily deployed subordinate police personnel or that purpose. The learned counsel for the appellants argued that he has introduced delay because the list of stolen properties was still being prepared and if he admits that the investigation had already started, this list may become inadmissible evidence, as a document prepared during the course of the investigation may not be available for reference during the trial.\nIt is undoubtedly true that a rich man of the town had died and a crowd would collect, but that does not mean that it could not be controlled by the lesser hierarchy of police authorities. It was not a violent crowd but a crowd which had collected out of sympathy and curiosity. It would assist and not hinder investigation. The list Exh. Ka 41 is said to have been prepared by one Ram Gopal (Munim of Bharat Singh, P.W. 18) by the help of the pawn register Exh. Ka 40 and on the basis of the knowledge of Bharat Singh and Chandra Prakash as to the ornaments that possibly had been stolen and carried away. The list was ready by about 11.30 or 12 mid-day and then it was handed over to Ganga Prasad Tripathi. It is obviously hit by s. 161 read with s. 162 of the Code of Criminal Procedure Thirdly, the pawn Register is Exh. Ka 40. The evidence indicates that it came into the custody of Chandra Prakash, P.W. 28 sometime about 8 a.m. and on its basis, the list continued to be prepared till about 11.30 or 12 mid-day. No recovery memo was prepared in respect of this register, although it was taken into custody by the Investigating Officer, as stated by Bharat Singh. Fourthly, we are surprised at the conduct of the Investigating Officer in practically doing nothing on December 26 regarding the arrest of the suspects or search of their houses with a view to get hold of them as quickly as possible and to recover the properties, if these were with them. We still proceed on the basis of two hypothesis, one advanced by the learned counsel for the appellants to the effect that suspicion against the appellants Sukhbasi, Ram Sanehi and Ram Shanker came into existence not on December 26 or even in day time on December 27 but sometime in the night between December 27/28th, 1970 or on December 28 and then the activities started; and the second one advanced by the learned Deputy Government Advocate that the names of these three suspects were known latest by mid-day of December 26 and attempts were made to arrest them but this attempt had failed. Chandra Prakash, P.W. 28 was informed about the incident at 7 a.m. on December 26. He made his first information report at a distance of two furlongs at 7.45 a.m. On his own admission, therefore, he had an interval of 45 minutes to think about the matter. Rameshwar suspected the hands of these three appellants quite early. His deposition shows that he did not impart this information to Chandra Prakash till after the First Information Report had already been made and that is the reason why the names of these three suspects have not been mentioned in the First Information Report. The question is whether or not this is probable, in the circumstances of the case. Rameshwar and Chandra Prakash and the latter's family members had reconnoitered the scene. They realized loss of jewellery of huge amount. They suspected murders of two persons. It will be natural, in the circumstances, therefore, for them to start guessing as to who could be the possible culprits. Chandra Prakash would only question Rameshwar, the domestic servant of the deceased, as to when he had left the house in the preceding night and as to what intruders were there; and to imagine that nothing of the sort will be done, would be rather improbable. Rameshwar knew that these three suspects had entered the house. He also knew that they had come for the ostensible purpose of pawning ornaments but he himself had not seen any with them. He knew that as soon as he had come out of the house, the door had been closed from inside. He, however, did not say all these things to Chandra Prakash, and for that matter, Chandra Prakash also did not prove into these things. Be that as it may, we will now proceed to discuss the subsequent conduct. Before arriving on the scene, the Investigating Officer had got into touch on the telephone with Kanpur and had made a request for the despatch of the Dog-SquadNow, that would be explainable on the footing that he had no clues and wanted to utilize the Dog-Squad to hound up the culprits by their sense of smell. He had himself stated that he needed the Squad to furnish clues concerning the culprits. He started recording statements of witnesses who could possibly throw some light. These witnesses are Dr. Sukhbasi Lal, Rameshwar, Sheo Murti, Bharat Singh and Chandra Prakash. They furnished important clues pointing to the incrimination of these three appellants. Baba Mst. Giri also furnished clues about offerings made at the temple. These statements were over by about 1 p.m. Ganga Prasad Tripathi, therefore, had ample material. Dog-Squad arrived at 4 p.m. and he waited till then before taking any tangible steps towards substantial investigation. The Dog-Squad furnished no clues, as admitted by him. What would be his reaction in such circumstances ? Would or would he not take effective steps for the arrest of these three suspects and for the search of their houses. He has stated that he had deputed some Sub-Inspectors of police to arrest the suspects. None of them, however, has been examined either to corroborate him or to let the Court know as to what steps they had taken or attempts they had made. The evidence given by the other witnesses is also inconclusive. The appellant Sukhbasi is a native of Behta, eight miles from the police station. But he had a house and a shop at Chhibramau also. The appellant Ram Sanehi resides in another village, some miles away from the police station, but works at the shop of the appellant Sukhbasi. The appellant Ram Shanker was in the service of Mahadeo Halwai. Chandra Prakash, P.W. 28 himself did not go to locate any of these three persons. His deposition is that he had deputed Sheo Murti, P.W. 15 for that purpose and on return, it was reported to him that he had gone to the shop of Sukhbasi but had found it closed. His evidence is hearsay, like that of Ganga Prasad Tripathi that his Sub-Inspectors had made attempts. Rameshwar has stated that he and Sheo Murti had found Sukhbasi's shop closed and he had passed on that information to Chandra Prakash. He did not go to Behta. He did not go to the house of Ram Sanehi. He did not even go to find if Ram Shanker was at the Halwai's shop. Abdul Karim, P.W. 9 has stated that so far as his knowledge goes, no one had gone to make any search but he had heard that a search was being made. His evidence, therefore, is also useless. Sheo Murti visited only the shop of the appellant Sukhbasi. He did not go to Halwai's shop, or Sukhbasi's house in Behta or Ram Sanehi's house in the rural area. Bharat Singh also visited Sukhbasi's shop alone. Now, this is the picture presentedIf we assume that the Investigating Officer had no clues and had to call the Dog-Squad for that reason and admittedly the Squad also furnished no clues, and if we further assume that the statements of these witnesses were not recorded on December 26 and, therefore, they had also not furnished any clues on that date, the conduct of the Investigating Officer will become consistent with the fact that he had no clues in hand on December 26. On the other hand, let us assume that he had evidence before him by about mid-day on December 26, that these three suspects had a possible hand in the crime, he would move in a frantic and hectic manner to get hold of them. Police personnel would be sent to Behta, where Sukhbasi resides and also the native village of Ram Sanehi and to Mahadeo's shop to arrest, and if none of them was available, to take a search of their houses in the hope of recovering properties. This was not done and that again is consistent with the fact that the Investigating Officer had no clues in his hand and would be consistent with the fact that he knew and still did not take the steps which any prudent Investigating Officer would have taken.\"\nWe agree with these observations made by the High Court\n16.  The testimony of the Investigating Officer, Ganga Prasad Tripathi, P.W. 31 shows that while he was recording the statements of the witnesses they revealed certain information on the basis of which he suspected the involvement of the accused. The Dog-Squad came at about 4 p.m. The dogs went on a track first over the roof to the joint from where the bad characters had gone down by fixing a rope and then passed through the lane by the shop of the accused Sukhbasi to the temple of Baba Mastgir where they offered 8 silver coins (Exh. 98) and from there to the bus-stand Chhibramau where the track ended. Apparently, the accused had boarded the bus and disappeared. He states that he got definite information about the complicity of the accused Sukhbasi, Ram Sanehi and Ram Shanker at about 1 a.m. on the night intervening December 27/28 i.e. in the early hours of the 28th morning. He states that on receiving the information he immediately left with police force in a truck for village Behta to which the accused Sukhbasi belongs. He left the truck on the outskirts of the village and took Chhotelal, P.W. 25, Radha Kishan, Ramlal and Nathuram from the village. The police party surrounded the house of the accused Sukhbasi. On seeing the police party, four of the inmates tried to escape by placing a ladder against the compound wall. Three managed to escape but the fourth i.e. the accused Sukhbasi was apprehended. He was administered a beating and offered to hand over some ornaments which he had buried inside the kotha. He dug out from the ground a bundle of silver ornaments (Exh. 96). He volunteered that there were other ornaments with the accused Ram Sanehi. P.W. 31 states that he did not search the other rooms as he was in a hurry to apprehend Ram Sanehi. He then took the accused Sukhbasi and members of his family in a truck for the house of Ram Sanehi in village Akbarpur but he was not to be found. It was learnt that he had gone to take a bath in the Ganges at Shringi Rampur. P.W. 31 states that he left for Shringi Rampur and arrested the accused Ram Sanehi near Rajepur. He disclosed that he had buried the share of the looted property in his house and offered to hand them over. P.W. 31 then took him to his house at Akbarpur. The accused Ram Sanehi took P.W. 31 to the kotha and from there gold and silver ornaments were recovered kept concealed in an earthen pot, seized under Exh. 57. P.W. 31 then returned to the house of the accused Sukhbasi at village Behta and confronted the accused Ram Sanehi with accused Sukhbasi.\n17.  Upon interrogation the accused Sukhbasi revealed that he had kept currency notes of the value of Rs. 12,424/- and other gold and silver ornaments concealed in a room to the east of the courtyard under a heap of cowdung cakes. Then his house was searched the second time at about 3 p.m. on the 28th. The accused Sukhbasi took P.W. 31 inside that room and took out the bundle containing Rs. 12,424/- and stolen articles marked Exh. 97 seized under seizure memo (Exh. 55). P.W. 31 found 37 pawn slips detached from the ornaments lying in that room and took possession of the same (marked Exhs. Ka 3 to 39 and seized under seizure memo Exh. Ka 54). A week thereafter on January 1, 1971 he arrested the accused Ashok Kumar from Kaimganj. On the next day i.e. on the 3rd, he recorded the statement of Chhotelal, P.W. 25 and the other witnesses at the Police Station. A fortnight thereafter the accused Ram Shanker surrendered himself before the Magistrate on January 19, 1971. On interrogation he revealed that he had sold a gold ring to Ram Chander at Farrukhabad and offered to hand over some of the ornaments of his share which he had kept concealed in his house. On the night between January 19/20, P.W. 31 took him inside the house and the accused Ram Shanker dug out a jhola (Exh. 18) from inside a heap of bhoosa which contained gold and silver ornaments seized under seizure memo (Exh. 56). The accused Ram Shanker expressed his desire to make a confession. The confession made by the accused Ram Shanker (Exh. Ka 61) was recorded by Shri Harish Chander, P.W. 29, Magistrate (First Class), Farrukhabad on January 22, 1971, but he later retracted the confessional statement in the Court of Session. Some four months thereafter on May 25, 1971, Shri Harish Chander held a test identification parade of the stolen articles and almost all of them were identified as either belonging to the deceased Bhagwat Dayal or pledged with him, by Chandra Prakash, P.W. 28, Bharat Singh, P.W. 18 etc.\n18.  If the matter stood at that, there would have been no difficulty in reversing the judgment of acquittal recorded by the High Court. There are however certain mysterious circumstances. During his cross-examination P.W. 31 revealed that on information gathered from the statements of the witnesses he suspected that the accused were involved in the commission of murder and robbery. He therefore despatched a team of Sub-Inspectors to village Behta at 4 p.m. If that be so, then there was no reason for him to wait till 1 a.m. i.e. for nine hours. The arrival of the Dog-Squad proved abortive as it tracked down the escape route up to the bus stand. P.W. 31 explains that he made a search for the accused but they were not to be found in Chhibramau. He should then have proceeded at once to village Behta to which the accused Sukhbasi belongs. But he evidently waited till 1 a.m. and then went with the police party to the village in a truck. This long unexplained delay is shrouded in mystery.  Further, the manner of recovery creates considerable doubt.\nThe house of Sukhbasi was raided twice and two lots of ornaments recovered, the first on the 27th seized under seizure memo (Exh. Ka 53) and the second on 28th seized under seizure memo (Exh. Ka 55). The accused Sukhbasi was not arrested till 28th even after the recovery of the stolen ornaments and of pawn slips (Exhs. Ka 3 to 39). The next recovery of gold and silver ornaments from the house of Ram Sanehi at village Akbarpur on the 28th morning was under seizure memo (Exh. 57). The fourth lot of ornaments was not recovered from the accused Chhotelal, brother of the accused Sukhbasi, till January 19, 1971 and seized under seizure memo (Exh. 56) i.e. after about 22 days. There was no recovery from the accused Ram Shanker but he made the retracted confession (Exh. Ka 61) before Shri Harish Chander, Magistrate, (First Class), Farrukhabad on the 22nd and confessed that he had sold a gold ring to Ram Chander, P.W. 27. P.W. 31 suggests that on seeing the police party the accused Sukhbasi and his companions tried to escape by placing a ladder against the compound wall but the accused Sukhbasi was apprehended and then administered a beating. The witnesses of seizure are common. All these circumstances create a doubt and the High Court has acquitted the accused Sukhbasi, Ram Sanehi and Ram Shanker giving them the benefit of such doubt. There appears to be no just and compelling reasons for us to interfere with the judgment of acquittal\n19.  It is unfortunate that the accused in this case of the heinous and gruesome murders of the deceased Lala Bhagwat Dayal and his wife Smt. Ramwati Devi and the robbery of their property worth several lakhs of rupees should escape. Though we have considerable suspicion that the accused Sukhbasi, Ram Sanehi and Ram Shanker were the persons who may have committed these murders and robbery, the judgment of acquittal recorded by the High Court must stand. There is no legal evidence to sustain their conviction for the offences with which they were charged. The prosecution evidence falls short of the proof required. Mere suspicion, however grave, cannot take the place of proof\n20.  As regards the disposal of the gold and silver ornaments seized and the cash of Rs. 12, 424/-, it is not disputed that they were all stolen and belonged to the deceased Bhagwat Dayal but their recovery from the accused is in doubt. The accused Sukhbasi, Ram Sanehi and Ram Shanker have disclaimed that these ornaments and cash were seized from them or belonged to them. That was also the stand of the learned counsel appearing for the respondents.\nIn the circumstances, we modify the direction made by the High Court that the seized gold and silver ornaments shall remain in custody till the claims for their right and title are settled by a Civil Court of competent jurisdiction. We think it necessary in the interests of justice to direct that the stolen gold and silver ornaments and currency notes worth Rs. 12, 424/- seized by the police are restored to the legal heirs of the deceased Lala Bhagwat Dayal and his wife Smt. Ramwati Devi, subject to the right or claim of any third party which may be established in a competent Civil Court\nSubject to this modification, the appeals fail and are dismissed.\nAppeals dismissed.\n"}
+{"id": "f7ZJ69PqcU", "title": "", "text": "Ashok Kumar Chatterjee v State of Madhya Pradesh\nSupreme Court of India\n\n2  May  1989\nCr.A. No. 417 of 1978 (From the Judgment and Dt. 7 May 1977 of the Madhya Pradesh High Court in Cr.A. No. 307 of 1977)\nThe Judgment was delivered by: RATNAVEL PANDIAN, J.\n1.  This appeal under special leave is directed against the judgment passed by the High Court of Madhya Pradesh at Jabalpur disposing Criminal Reference No. 1 of 1977 submitted by the learned Sessions Judge, Raipur u/s. 366(1) of the Criminal Procedure Code for confirmation of the sentence of death awarded by him in Session Trial No. 5 of 1977 and the criminal Appeal No. 307 of 1977 preferred by the appellant, Ashok Kumar Chatterjee challenging the correctness and legality of the judgment made by the trial court convicting him u/s. 302 and 201 IPC and sentencing him to death and to undergo rigorous imprisonment for 3 years respectively.\nThe facts of the case briefly stated are as follows\n2.   The deceased Ravindra, who was 19 years of age at the time of occurrence in 1976 was the son of Pritosh Kumar Chatterjee who was employed in Bhatapara as Laboratory Assistant in Government Multi-Purpose Higher Secondary School. He hailed from West Bengal. The appellant, aged about 22 years, is a cousin of Pritosh.\n3.  Pritosh was living with his wife (PW 2), his only daughter, aged about 15 years namely Supriya @ Bina and the appellant in Bhatapara in the house of PW 11. The deceased who was a student in Raipur College had come to Bhatapara during the summer vacation.\n4.  Though the motive for the appellant to murder Ravindra, as put forth now by the prosecution, is that there was a quarrel between Ravindra and the appellant on some money matters, the real motive seems to be a story of shameful intrigue as disclosed from the evidence of PW 2, the wife of Pritosh. According to PW 2, her husband Pritosh was a man of very bad and indecent character and he was living in a private hell of his own satisfying his lust with his own daughter, Supriya. In the cross-examination also PW 2 affirms that her husband had illicit relations with Supriya. On account of this abnormal sexual and obnoxious behaviour of Pritosh, there used to be frequent quarrels between PW 2 and her husband. It further transpires from the evidence that the appellant who was none other than the cousin brother of Pritosh, was also making overtures to Supriya and this was resented by the deceased Ravindra who was in the prime of his youth.\n5.  During that summer vacation, PW 2 along with her daughter Supriya had been to her village Gangoria, leaving her husband, the appellant and the deceased at Bhatapara. Some time later, Pritosh also come to the village where PW 2 and her daughter Supriya were staying. After the arrival of Pritosh, PW 2 left the village taking her daughter with her to Bhadria by travelling in a bus. But even before she reached Bhadria, she sent her daughter back to Gangoria from Barasal, probably a place midway between Gangoria and Bhadria. In Gangoria, PW 2's mother and brother were living.\n6.  Pritosh came to Bhadria from Bhatapara. By that time Supriya also came there. PW 2 took a strong objection to the conduct of her husband coming to Bhadria and had a quarrel with him. Then she sent Supriya back to Gangoria on the very next day of the arrival of her husband. Thereafter PW 2 and her husband went to the village Mongram where the appellant also joined with them. It may be stated that the appellant's parents and brothers were residing at Mongram. At Mongram, PW 2 made enquiries with the appellant about her son Ravindra to which the appellant replied that Ravindra had gone to Bombay in search of some employment. Leaving the appellant and Pritosh at Mongram PW 2 went Gangoria. After some days PW 2 with her mother came to Bhatapara and asked her husband and the appellant about her son Ravindra to which both of them replied that Ravindra had gone in search of a job somewhere. PW 2 asked them to make a search for her son and if they failed to do so, she would herself make a search by handing over a photo of her son to the police.\n7.  Be that as it may, it appears from the evidence that the deceased was last seen with the appellant in Bhatapara on June 8, 1976. On June 11, 1976, a headless body of a male without the limbs was found by PW 1 and the villagers in the field at Bhatapara. Some of the limbs of the body were also found at different places on the same day. At about 8.15 a. m. on June 11, 1976, PW 1 lodged a report (Ex. P-1) before PW 20, the then Section House Officer of Bhatapara Police Station. On the basis of Ex. P-1, the first information report, Ex. P-57 was prepared.\n8.  PW 20 took up investigation, proceeded to the scene, held inquest over the headless body and the limbs and prepared the inquest report Ex. P-23. He also prepared a sketch of the scene Ex. P-50 and seized a rope, a pair of shoes and a cycle lying there.\n9.  He sent that trunk and the limbs for post-mortem examination. On the very next day i. e. on June 12, 1976 on information, near the railway station he seized the decapitated head, over which he held an inquest and prepared the report Ex. P-59. He caused the photograph of the head to be taken under Ex. P-12. Then he sent the head for post-mortem.\n10.  PW 10, the Medical Officer who conducted the autopsy on the headless trunk and the decapitated head opined that both were parts of the same body of a male of fair complexion of an estimated age of 17 to 25 years. According to the prosecution, the dead body was of Ravindra who of a fair complexion, aged 19 years at that time. Exs. P-45 and 47 are the post-mortem certificates. PW 10 states the body had not decomposed.\n11.  PW 21, at the instruction of PW 20, inspected the house of the deceased and drew a sketch Ex. P-60. He found blood stains at wooden door at three points which he scraped.\n12.  While the matter stood thus, PW 2 not being satisfied with the reply of her husband and the appellant both at Mongram and thereafter at Bhatapara about the missing of her son Ravindra, went to the police station of Bhatapara and handed over two photographs of her son Ex. P-2 and Ex. P-3 and also gave a report Ex. P-82 dated July 13, 1976.\n13.  On the same day i. e. on July 13, 1976 after PW 2 had submitted the report Ex. P-82 to the police, Pritosh committed suicide by throwing himself before a running train.\n14.  PWs 6 and 7 who were the Lecturers of the High School in which Pritosh was employed and in which the deceased studied and completed has matriculation, came to the police station and informed the suicidal death of Pritosh to PW 30 (Station House Officer). While PWs 6 and 7 were returning from the station, they saw the appellant entering the police station. The appellant told both these two witnesses that he knew of the death of Pritosh and further confessed that he was the person who murdered the deceased Ravindra and added that he had come there to surrender before the police.\n15.  PW 30 arrested the accused, examined him and recorded his confessional statement in the presence of PWs 6 and 7. In pursuance of that statement, several articles and letters were seized. On June, 16, 1977, certain applications written by Pritosh were also recovered. During the inspection of the house, PW 30 found blood stains on the walls of the house which he scraped and recovered Ex. P-20 is the recovery mahazor. Among the letters seized, Exs. P-13 to P-15 (letters written in Bengali) and Ex. P-29 and Ex. P-31 (letters written in Hindi) and the envelopes Exs. P-30 and P-32 were found. Exs. P-61 and P-63 are the specimen Hindi writings of the appellant and Exs. P-18 to P-20 are the specimen Bengali writing of the appellant. These letters along with specimen handwriting were sent to PWs 22 and 23 who were the Additional and Assistant Station Examiners of Questioned Documents (i. e. handwriting experts) for comparison of the writings of these letters with the specimen writings of the appellant. The experts on comparison have opined that all the seized letters were in the handwriting of the appellant.\n16.  Besides the opinion of the experts, PW 2 who claims to have studied up to 3rd standard and to have been conversant with the handwriting of the appellant also has deposed that the writings in Exs. P-13 to P-15, P-29 and P-31 are in the handwriting of the appellant. In Exs. P-13 and P-15 (addressed to his father), and in Ex. P-14 (addressed to Jamai Baboo), the appellant had given the detail of his love towards Supriya (@ Bina) and of his guilt of murdering the deceased. It may be pointed out that these letters were not posted. Exs. P-29 and P-31 (dated nil) found in the postal covers (Exs. P-30 and P-32) were addressed to the Collector and the Station House Officer but they too were not posted. The contents of those letters reveal that the appellant wanted to put an end to his life by committing suicide for the sin of murder he committed. It seems that the appellant could not muster courage to end his life and so surrendered before the police. Before leaving for the police station, the appellant wrote Ex. P-104 a postcard addressed to his father and posted the same. This postcard (Ex. P-104) written in Bengali was posted on July 13, 1976 at Bhatapara and it reached his father in Kalopur village on July 17, 1976. This is an important document about which we shall discuss in the ensuing portion of the judgment.\n17.  During the investigation, a knife and some letters inclusive of Ex. P-104 were seized from the house of the father of the appellant in Kalopur village by PW 18. Exs. P-5 to P-11, P-16 and P-17 are the letters proved to be in the handwriting of Pritosh through PWs 2, 3 and 22. The contents of these letters show that after Pritosh and the appellant returned to Bhatapara from West Bengal the appellant confessed to Pritosh about his involvement in the murder of the deceased, and Pritosh who loved his son Ravindra and the appellant, without disclosing this confession of the appellant, decided to put an end to his life and ultimately did so. Two other letters (Exs. P-6 and P-33) further show that at the initial stage both Pritosh and the appellant decided to commit suicide. However, the sequence of events reveal that Pritosh alone committed suicide after his wife lodged the complaint with the police. We may point out at this juncture that though the letters written by Pritosh cannot be made use of as legal evidence against the appellant, we are mentioning those letters and their contents only for the proper understanding of the sequence of events and the complete narration of the prosecution case.\n18.  Exs. P-184 and P-185 are the reports of the Chemical Examiner and Serologist respectively. As per the report of the Serologist the scrapings of the wall of the house and the pillow recovered from the house were stained with human blood. The blood stains on some of the items of the properties were disintegrated and as such their origin could not be determined. After completing the investigation PW 30 filed the charge-sheet on October 28, 1976.\n19.  The appellant in his statement u/s. 313 CPC has denied his complicity in the offence in question and added that he does not know anything about the letters produced by the prosecution and that he was tortured and pressurised to write certain letters and documents inclusive of a postcard at the police station and under pressure his signatures were obtained thereon.\n20.  The trial court, as pointed supra, convicted the appellant u/ss. 302 and 201 IPC and sentenced him to death and to undergo rigorous imprisonment for a period of 3 years. The High Court for the reasons assigned in its judgment affirmed the convictions recorded by the trial court but modified the sentence of death to imprisonment for life while retaining the rigorous imprisonment for 3 years u/s. 201 IPC.\n21.  The learned counsel appearing on behalf of the appellant assailed the judgment of the High Court, inter alia, contending\n(1) That the prosecution has not satisfactorily established the guilt of the appellant through cogent, reliable and trustworthy evidence from which the guilt of the accused is to be drawn and the evidence available on record does not lead to any irresistible conclusion that the appellant alone, and none else, committed this heinous crime;\n(2) All the letters except Ex. P-104 have not been posted and they were all fabricated only at the police station under pressure brought on the appellant who was pressurised to sign those letters and as such the contents of all those letters should be rejected in toto.\n(3) The date, July 11, 1976 mentioned in Ex. P-104 would indicate that the appellant had been taken into custody by the police either on July 11, 1976 or much earlier and that this letter had been fabricated while he was in the police custody and was posted on July 13, 1976. This postcard (Ex. P-104) raises a could of suspicion on the veracity of the prosecution case.\n22.  Incidentally, a feeble argument was advanced that the prosecution has not established the identity of the trunk, limbs and the severed head as that of Ravindra beyond all reasonable doubt.\n23.  This Court in a series of decisions has laid down the principles of law governing the exercise of powers by this Court to interfere in an appeal against conviction u/art. 136 of the Constitution of India of which we shall make reference to a few.\n24.  In Hem Raj v. State of Ajmer this Court has clearly made the position of law thus:\n25.   Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court does not exercise its overriding powers u/art. 136(1) of the Constitution\n26.  In Ramaphupala Reddy v. State of Andhra Pradesh this Court expressed its view on this proposition of law thus:\n27.   Although the powers of this Court under that article (Art. 136 of the Constitution) are very wide, this Court following the practice adopted by the Judicial Committee has prescribed limits on its own power and in criminal appeals, except under exceptional circumstances it does interfere with the findings of facts reached by the High Court unless it is of the opinion that the High Court had disregarded the forms of legal process or had violated the principles of natural justice or otherwise substantial and grave injustice has resulted. This Court does not ordinarily reappraise the evidence if the High Court has approached the case before it in accordance with the guidelines laid down by this Court unless some basic error on the part of the High Court is brought to the notice of this Court. It is best to bear in mind that except in certain special cases, the High Court is the final court of appeal and this Court is only a court of special jurisdiction.\n28.  Chandrachud, J as he then was in Balak Ram v. State of U. P. speaking for the bench said:\n29.   The powers of the Supreme Court u/art. 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. In Ramaphupala Reddy v. State of A. P., it was observed that it was best to bear in mind that normally the High Court is a final court of appeal and the Supreme Court is only a court of special jurisdiction. This Court would not therefore reappraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted.\n30.  This Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat wherein the High Court had affirmed the pure findings of facts recorded by the Sessions Court, observed:\n31.   Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established:\n(1) that the finding is based on no evidence or\n(2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or\n(3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or\n(4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded\n32.  In a recent decision in Appabhai v. State of Gujarat the following dictum is laid down: \nBefore we consider the contentions urged for the appellants, we may recall that these are appeals by special leave u/art. 136 of the Constitution. If conclusions of the courts below are supported by acceptable evidence, this Court will not exercise its overriding powers to interfere with the decision appealed against. This Court also will not consider the contentions relating to re-appreciation of the evidence which has been believed by the courts below. The fact that the special leave has been granted should not make any difference to this practice. The grant of special leave does not entitle the parties to open out and argue the whole case. The parties are not entitled to contest all findings recorded by the courts below unless it is shown by error apparent on the record that substantial and grave injustice has been done to them.\n33.  We shall now, bearing in mind the scope of interference by this Court in an appeal against concurrent findings, dispose this appeal in this light of the principle of law enunciated by this Court in the abovementioned authoritative judicial pronouncements.\n34.  This appeal arises against the concurrent findings of facts except for the modification of the sentence made by the High Court. There is no direct evidence to prove this case and the conviction is founded solely on circumstantial evidence. This Court in a line of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests\n(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established\n(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused\n(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and\n(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.\n35.  See also Rama Nand v. State of Himachal Pradesh, Prem Thakur v. State of Punjab, Earabhadrappa v. State of Karnataka, Gian Singh v. State of Punjab and Balwinder Singh v. State of Punjab\n36.  Before adverting to the arguments advanced by the learned counsel, we shall first of all dispose of the contention with reference to the identity of the victim\n37.  The unfortunate victim in this case is one Ravindra who was aged about 19 years at the time of the occurrence and who was the only son of Pritosh and PW 2. According to the prosecution, the scene of occurrence was the house of the deceased himself and he was done away with at about 4.45 a. m. on June 10, 1976. Indisputably, it is a very macabre incident in which the deceased had been brutally parts of Bhatapara city. Though the headless body and the various limbs were seen and recovered on June 11, 1976, the decapitated head was seen and recovered only on June 12, 1976. A photograph of the head was taken under Ex. P-12. Though PW 2, the mother of Ravindra on seeing Ex. P-12 identified it to be that of her son, the learned Judges held that since the features of the face in x. P-12 cannot be deciphered, it is impossible for any person to identify the deceased from Ex. P-12. In view of this, they were reluctant to place reliance on the identification by PW 2 on seeing Ex. P-12. However, the High Court relying on other facts of the case concurring with the trial court came to the conclusion that the deceased was Ravindra.\n38.   According to the evidence, Ravindra was of a fair complexion aged about 19 years. The Medical Officer has deposed that the skin of the deceased was of fair complexion. In the post-mortem certificate (Ex. P-45), the approximate age of the male body is given as 18 to 29 years and the skin was of fair colour. The Medical Officer has further stated that the decapitated head was that of the body recovered on the earlier day. The scrapings of the wall of the kitchen portion of the scene house are proved to have been stained with human blood. The pillow recovered from the house also is proved to have been stained with human blood. These circumstances indicate that the occurrence had taken place inside the house of the deceased. In the number of letters inclusive of Ex. P-104 the appellant himself has unequivocally conferred that the deceased was Ravindra. The letters written by Pritosh about which we have made reference in the narrative portion of this judgment also refers to the murder of Ravindra. In view of the above unassailable circumstances, we are fortified in our view that both the courts have rightly found that the dead body was that of Ravindra and we do not see any reason to dislodge that concurrent finding.\n39.  The prosecution rests its case on a number of attending circumstances, which establish the guilt of the appellant. As was pointed out during the earlier part of this judgment though the prosecution has suggested the motive for the accused to commit this murder on a money dealing, the real motive behind the occurrence seems to be a gross indecent behavior of the appellant towards Supriya @ Bina, who is done other than the sister of the deceased. It is in the evidence of PW 2 that even Pritosh, the father of Supriya had sexually assaulted his own daughter on earlier occasions and that this appellant was also making overtures towards Supriya thereby exhibiting his asinine behaviour. Therefore, it is but natural that the deceased should have taken a strong objection to the conduct of the appellant and this had resulted in the murder of Ravindra.\n40.  At the time when the victim was murdered except the appellant and the deceased, there was none in the scene house because PW 2 had left Bhatapara with her daughter and Pritosh and followed them some time later. In the evidence of PW 11 who is the landlord of the scene house it is said that Ravindra was seen in the house in the company of the appellant up to June, 1976. The appellant was not found in the village after this murder till he surrendered before the police i. e. on June 13, 1976. After this incident, the appellant went to Mongram where his parents and brothers reside and met Pritosh and PW 2. When PW 2 asked the appellant at Mongram about her son's whereabouts, the appellant falsely replied that Ravindra had gone to Bombay in search of some employment. The conduct of the appellant in giving this manifestly blatant false reply to PW 2's enquiry, spells out his guilty conscience. The number of letters namely Exs. P-13 to P-15, Exs. P-29 and P-31 written in Bengali and Hindi were seized from the house. These letters are proved to be in the handwriting of the appellant, as seen from the evidence of PW 22 and PW 23 who were the State Examiners of Questioned Documents. PW 2 who claims to have studied up to 3rd standard has also deposed that the writing of those letters are in the handwriting of the appellant. In fact the accused also did not deny his handwriting but would try to explain that those letters were got written under pressure brought by the police on him. In these letters which were not posted, the accused had confessed that he had murdered the deceased. There is one more clinching evidence connecting the appellant with the crime in question is the contents of the postcard (Ex. P-104). This postcard had been posted at Bhatapara on July 13, 1976 i. e. on the very same day of the suicidal death of Pritosh. Much argument was advanced on this postcard. According to the prosecution this postcard which was posted at Bhatapara on July 13, 1976 reached the appellant's father on July 17, 1976 at Kalopur. This postcard is written in Bengali. PW 23 has testified that the writing in the postcard is that of the appellant. This Ex. P-104 is dated July 11, 1976. The learned counsel for the defence advanced his argument contending that since the postcard is dated July 11, 1976, the appellant should have been taken to the police custody even much earlier to July 13, 111976 and this letter was fabricated. We are unable to accept this contention.\n41.   In fact, a similar argument was raised before the High Court which repelled the same. Admittedly Pritosh committed suicide on July 13, 1976. In the postcard there is reference to the death of Pritosh Therefore, it is evident that this postcard should have been written after the death of Pritosh and then posted. Presumably, the appellant would have put the date on the postcard as July 11, 1976 by mistake. In view of the surrounding circumstances and the contents found in the postcard we are in total agreement with the finding of the High Court that the appellant should have put the date by mistake, and hold that this argument of the learned counsel for the appellant is not acceptable. The contents of this letter clearly show that Ravindra was murdered by the appellant on June 10, 1976 and that the appellant coming to know about the suicide of his cousin brother, Pritosh had decided to surrender before the police and suffer the consequences. Though the appellant in general had stated that he was tortured by the police and pressurised to write certain letters and documents and to sign them, he when specifically questioned u/s. 313 CPC answered that he did not know anything about those letters.\n42.  The learned defence counsel in support of his contention that there was police torture would draw the attention of this Court to certain admissions of PW 2 in the cross-examination admitting that the police had harassed all of them and persistently enquired about the reason for Pritosh to commit suicide, and that the appellant on being arrested by the police was highly perplexed and all of them went on admitting what the police said. We have carefully scanned these admissions of PW 2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed out Pritosh committed suicide in very tragic circumstances by throwing himself before a running train only after PW 2 had approached the police by lodging Ex. P-82 and handing over two photographs of her son with the request to make an investigation about the missing of her son. Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husband's abnormal sexual behaviour.  Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the human form.\nHence we hold that this argument of the earned counsel does not merit consideration.\n43.  For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that this cold-blooded murder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of the High Court does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence. Hence was hold that the findings of facts recorded by the courts below do not call for any interference.\nIn the result, the appeal is dismissed\nAppeal dismissed.\n"}
+{"id": "PKY6gob2I4", "title": "", "text": "Dr. Ms. O.Z. Hussain v Union Of India And Ors.\nSupreme Court of India\n\n15 November 1989\nWrit Petition (Civil) No. 10 18 of 1989\nThe Judgment was delivered by: Ranganath Misra, J.\n1.  This is an application u/art. 32 of the Constitution and the President of the National Council of Bio-Medical Scientists is the petitioner. The reliefs asked for are on the allegation that the Group 'A' scientists of the Ministry of Health and Family Welfare who are the members of the Council, are being discriminatingly treated; they have not been given any promotional benefits and, therefore, there is a large-scale stagnation in the service. It has been alleged that the Group 'A' scientists are recruited through the Union Public Service Commission. These scientists possess a Master Degree in the relevant disciplines and 3 years' experience to entitle them to be recruited. It has been indicated in a chart filed along with the Writ Petition that the total posts in this category are 243 including post of Drug Controller of India. The promotional posts available are filled up by direct recruitment and open competition and there is no promotional channel provided. Similar scientists in other Ministries, such as Ministry of Science and Technology, Ministry of Defence, Ministry of Environment and Ministry of Oceanography are recruited in terms of rules made under the proviso to Art. 309 of the Constitution and for their Group 'A' scientific and technical officers, promotional avenues are available. The petition further alleges that on their representations from time to time, meetings have been held but decisions taken in such meetings have not been given effect to and, therefore, all the representations have gone unheeded. Particular reference has been made to the Minutes of a meeting held on 15.5. 1989, where Shri Basudeven, Joint Secretary in the Ministry of Health and Family Welfare presided; several officers from different wings of the Ministry attended and representatives of the petitioner's Council participated. It has been alleged that though several demands were pressed by the representatives of the Council, only a few were considered and yet there was no follow-up action for their implementation.\n2.  Notice was issued to the Union of India in the Ministries of Health, Human Resources, Science and Technology and Bio-Technology and the notice indicated that the matter would be taken up for final disposal. Though no return has been filed to the Rule Nisi, counsel appeared for the respondents and upon appropriate instructions, participated in the hearing of the matter.\n3.  Annexure P-1 indicates the institutions located in different parts of the country where the posts of 'A' Group scientists who are members of the Council work. Their total number is 243 and this is not disputed. The petitioner has placed on record the rules framed in exercise of powers under proviso to Art. 309 of the Constitution in the Ministry of Science and Technology, covering Group 'A' scientists. Rule 13 thereof provides avenues for promotion.\n4. This also is not disputed. Annexure P-3 is a tabuler statement prepared by the petitioner, showing the disparities in the service conditions between the BioMedical scientists and other similar scientists and the discrimination that Group 'A' specialists/scientists under the establishment of Director General of Health Services suffer. The pay-scale for different categories of Group 'A' scientists in the nonmedical posts and of doctors in the medical posts have been separately shown. It has been pointed out therein that while there is a difference in the pay-scale in the establishment of Director General of Health Services, there is no disparity in respect of similar posts in the Indian Council of Medical Research (ICMR) or in the All-India Institute of Medical Sciences, Delhi or the Post--Graduate Institute at Chandigarh. It has been further pointed out in the said chart that various kinds of allowances are admissible to the doctors in the medical wing, such as book allowance, higher degree allowance, risk allowance and conveyance allowance in the establishment of Director General of Health Services while the non-medical category manned by the 'A' Group scientists is denied all these allowances. It has also been alleged that while the medical category doctors get nonpractising allowance the benefit of such allowance is not extended to the non-medical category. Such discrimination, according to the petitioner, is not noticed in the I.C.M.R. or in the two Institute at Delhi and Chandigarh respectively.\nThe 4th Pay Commission in Chapter 29, paragraph 29.8 recommended:\n\"The question of granting incentive to officers and staff who acquire higher qualification has also engaged our attention. Railways have suggested a scheme for giving such incentives in the context of the need for updating the skills of the employees for the more efficient discharge of their duties in these days when modernisation and adoption of advanced technology is being undertaken in different fields of railway working. Suggestions have also been made for grant of post graduate allowance to veterinary surgeons and special allowances to EDP personnel. Some such schemes are in existence in the defence services. We suggest that some incentive should be given to employees who acquire qualifications which are useful for their work and contribute to their efficiency.\"\n5.  On 15th of December, 1986, the Office Memorandum in the Ministry of Personnel, Public Grievances and Pension indicated that this recommendation of the Pay Commission has been accepted by the Government.\n6.  Undoubtedly, in regard to the three other allowances, namely, book allowance, risk allowance and conveyance allowance, there is no scope for discrimination between Group 'A' scientists in non-medical and medical wings. In fact, at the hearing of the writ petition, respondent's counsel found it difficult to support the prevailing position. We are of the opinion that these four kinds of allowances, which are admissible to the medical doctors are also admissible to the Group 'A' scientists under the non-medical category employed in the establishment of Director General of Health Services.\n7. The claim for nonpractising allowance stands on a somewhat different footing and we do not think on the present state of the record of this proceeding, we can come to a definite conclusion that the Group 'A' scientists in the non-medical category would be also entitled to such allowance. We, however, leave the question open and Government at their level in the appropriate Ministry would examine tenability of this claim as and when raised. It has been canvassed by petitioner's counsel at the hearing that there is no justification for the disparity in the scale of pay between the two categories of officers. Government counsel has taken the stand that the qualifications of officers in the two wings are different and the difference in the pay scales has always existed. It is difficult for us on the material available to take any final view of the matter but the respondent should examine tenability of the claim to equal scales of pay.\n8.  This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate.\nThis Writ Petition is allowed and the following directions are issued:\n(1) Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services;\n(2) These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. 1.4.1989;\n(3) Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.\nThere shall be no directions for costs.\nPetition allowed\n"}
+{"id": "iv7RyK6txX", "title": "", "text": "Council of Scientific and Industrial Research and Another v K. G. S. Bhatt and Another\nSupreme Court of India\n\n29 August 1989\nC.A. No. 3967 of 1987\nThe Judgment was delivered by: JAGANNATHA SHETTY, J.\n1. Mr. K. G. S. Bhatt - respondent No. 1 in this appeal was Civil Engineer - A in the Central Food and Technological Research Institute, Mysore, which is one of the national institutes under Council of Scientific and Industrial Research. He was not considered for any kind of promotion for nearly two decades. He approached the Central Administrative Tribunal, Bangalore Bench making that grievance and asking for relief. The Tribunal by judgment dated August 7, 1987 allowed his claim which has been challenged in this appeal by leave.\n2. Council of Scientific and Industrial Research is a society registered under the Societies Registration Act. It is appellant No. 1 in this appeal. The Director of Central Food and Technological Research Institute at Mysore is appellant No. 2. They are hereinafter together called as 'the appellant'. The appellant has framed certain dye-laws for regulating promotion of technical and scientific staff. One such bye-law is bye-law 71(b)(ii) which expressly does not cover the case of civil engineers. The Tribunal, however, extended the benefit of that bye-law to respondent 1 also. It directed the appellant to consider his case for promotion in terms of the said bye-law with all consequential benefits.\n3. Before turning to by-law 71(b)(ii), it is of some importance to see the relevant facts : On April 20, 1961, respondent 1 was appointed as Civil Engineer-A in the appellant's institute. He was given the pay scale of Rs.350-900. This pay scale was equivalent to that of starting pay scale of Junior Scientific Officers. The respondent 1 remained in the same cadre and pay scale till 1981 while Junior Scientific Officer and Junior Technical Officers were given periodical promotion under bye-law 71(b)(ii). In 1981, the appellant framed a separate scheme for promoting civil engineers and other administrative officers. The scheme is called the New Recruitment and Assessment Scheme (NR and AS). Under that scheme respondent 1 was considered and promoted to higher cadre with which we are not concerned in this appeal. We are only concerned with his claim for promotion for the period from 1961 to 1981, that is, from the date of his appointment till the NR and AS was introduced.\n4. Prior to 1978, there were five categories of officers and staff working under the establishments of the appellant. They were as follows:\n\"(i) those engaged in research work;\n(ii) those engaged in scientific work other than research work;\n(iii) auxiliary technical;\n(iv) administrative, ministerial and accounts; and\n(v) supporting staff (class IV)\"\n5. Subsequent to October 1978, those five categories were reclassified as under:\n\"(i) Scientific; (ii) technical; and (iii) administrative.\"\nThis latter classification resulted in the limitation of supporting staff (class IV) and the category of 'auxiliary technical;. It is not disputed that the civil engineers were categorised as 'auxiliary technical; under the first classification, but under the latter classification, they were brought under the 'administrative' category. The exclusion of their cadre from the scientific or technical category and bringing them under the 'administrative' category led to a wave of protests and representations. The question was also raised in the Parliament about the injustice done to the civil and structural engineers. On August 3, 1979, the Governing Body of the appellant approved the proposal to classify the Civil Engineering and Architectural Personnel as 'technical' instead of as 'administrative', but it was only for the purpose of retirement at 60 years. No promotional benefits were however, extended to them till NR and  AS was approved.\n6. We may now turn to bye-law 71(b)(ii) on which the Tribunal rested its conclusion. It reads as follows:\n\"Notwithstanding anything contained in these bye-laws\n(ii) The merit of officers of the rank of a Junior Scientific Officer/Junior Technical Officer and Senior Scientific Officer Gr. II/Senior Technical Officer Gr. II engaged in scientific work may be assessed for promotion to the next higher grade, after every five years of the appointment of the officer concerned against that post. Such assessment will also be made after completing one year's service at the maximum of the scale of pay of his grade.\"\n7. The Tribunal while considering this bye-law has observed that it could be applied to respondent 1 since he was in the rank of a Junior Scientific Officer/Junior Technical Officer. This view has been seriously criticised by counsel for the appellant. He argued that the said bye-law would be applicable only to Junior Scientific and Technical Officers who are engaged in scientific and technical work and it excludes others who are not engaged in scientific work. He also claimed that the bye-law was intended to give accelerated promotion to scientific and technical officers as an incentive for them and it cannot be extended to others who are doing routine administrative work.\n8. It seems to us that the submission of counsel for the appellant is not unjustified. Apparently the bye-law governs only the promotion of junior scientific and technical staff grade II who are engaged in the scientific work. One who is \"engaged in the scientific work\" is alone entitled to the benefit to the bye-law. It is a necessary qualification for being considered for accelerated promotion. A person who is not engaged in the scientific work, therefore, stands excluded from the bye-law. In other words, it has no application to the staff who are doing administrative work. Under the categorisation of jobs, respondent 1 falls under the 'administrative' category and therefore, stands excluded from bye-law 71(b)(ii).\n9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal, we need not to take its logical end which will defeat justice. Respondent 1 is not a layman. He is a highly qualified engineer. Although he joined service with a diploma in engineering, he later passed Bachelor of Engineering (B.E.) and also acquired M. Tech. degree and one more diploma (D.P.M.).\nHe was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation, public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career, One must, therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward.\n\"The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.\"\n10. Respondent 1 has alleged in the counter-affidavit that electrical engineers, mechanical engineers, refrigeration engineers, glass blowers. etc. were promoted treating them as 'technical' personnel. He has stated that electrical engineer deals with electrical services. Mechanical engineer looks after laboratory equipments. Glass blower takes care of glass apparatus. Refrigeration engineer provides cold storage. It is said that they got benefit of promotion under bye-law 71(b)(ii). Not merely that even some of the plumbers, masons, mates, polishers, etc., who were working under respondent 1 were said to have been classified as 'technical' for giving them promotion. These averments have not been denied or disputed in the reply affidavit filed on behalf of the appellant. We have referred to these averments only to highlight the injustice done to respondent 1 and not to impeach the validity of categorisation. Indeed, we cannot meddle with the categorisation since it was done by the Expert Committee.\n11. There is yet another reason for not interfering with the relief given by the Tribunal. We have accepted tribunalisation of justice by divesting jurisdiction of the High Courts with regard to service matters. The Service Tribunals have been constituted under the Administrative Tribunals Act, 1985, as final arbiter of controversies relating to conditions of service of officials. The Administrative Tribunals Act was enacted on the recommendations of this Court made in Harjeet Singh v. Union of India 1980 Indlaw SC 210, and in Kamal Kanti Datta v. Union of India 1980 Indlaw SC 148, There, this Court observed that the Tribunal should decide disputes as to service matters without being tied down to strict rules of evidence. In fact sub-s. (1) of S. 22 of the Administrative Tribunals Act, 1985, provides that a Tribunal should not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principle of natural justice etc. S. 27 provides finality to orders of the Tribunal. S. 28 excludes the jurisdiction of courts except the Supreme Court or any Industrial Tribunal, Labour Court.\n12. But this Court u/art. 136 exercises power only when there is supreme need. The decision on individual disputes of seniority, promotion, reversion, suspension, pay fixation etc., are not ordinarily interfered with even though it is viewed as erroneous. The Tribunal may fall into some legal errors but if substantial justice has been rendered to a person, this Court will not interfere with such a decision. In Rashpal Malhotra v. Satya Rajput 1987 Indlaw SC 28884, this Court expressed the view that even if legal flaws might be electronically detected in the order of the Tribunal or Court, this Court will not interfere unless there is manifest injustice or substantial question of public importance.\n13. It may be borne in mind that the exercise of power u/art. 136 while granting a special leave and while hearing an appeal is one continuous process, and this Court will apply the same principles even at the time of disposal of the appeal.\n(i) Bengal Chemical and  Pharmaceutical Work Ltd., v. Employees 1959 Indlaw SC 132,  and\n(ii) Baldota Bros. v. Libra Mining Works, 1959 Indlaw SC 293.\n14. In the instant case as already noticed the respondent 1 has suffered and stagnated for about twenty years in the same scale from inception due to defective promotional policy. Therefore, we decline to interfere with the relief granted by the Tribunal although we do not agree with the views expressed on the scope of bye-law 71(b)(ii).\n15. In the result, the appeal fails and is dismissed. But in the circumstances of the case, we make no order as to costs.\nAppeal dismissed.\n"}
+{"id": "jdg3vSFkpB", "title": "", "text": "Kalarimadathil Unni v State of Kerala\nSupreme Court of India\n\n22 April 1966\nCriminal Appeals Nos. 102 & 103 of 1965\nThe Judgment was delivered by : M. Hidayatullah, J.\n1.  This judgment will also govern the disposal of Criminal Appeal No. 102 of 1965 (Rajwant Singh v. The State of Kerala). The appellants in these two appeals have been convicted under ss. 302/34, 364, 392, 394 and 447 of the Indian Penal Code. Unni (appellant in this appeal) has been sentenced to death and Rajwant Singh (appellant in the other appeal) has been sentenced to imprisonment for life. No separate sentences under the other sections have been imposed on Unni but Rajwant Singh has been sentenced to four years' rigorous imprisonment under ss. 392 and 394, Indian Penal Code, with a direction that the sentences shall run concurrently with the sentence of imprisonment for life. The High Court of Kerala has dismissed their appeals and confirmed the sentence of death on Unni. They now appeal by special leave of this Court.\n2.  These appellants were tried with three others, of whom two were acquitted. One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life. He has not appealed to this Court. We are not concerned with them. The case relates to the death of one Lt. Commander Menianha of the Naval Base, I.N.S. Vendurthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963. Unni was attached as a rating to this Naval Base and at the time of the offence was on leave,. Taylor, who has not appealed was an ex-sailor and Rajwant Singh was attached to I.N.S. Vikrant. The case of the prosecution was that these persons conspired together to burgle the safe of the Base Supply Office on the eve of the pay-day, when a large sum of money was usually kept there for distribution on the pay-day. They collected various articles such as a Naval Officer's dress, a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes. On the night in question they decoyed the Lt. Commander from his house on the pretext that he was wanted at the Naval Base, and in a lonely place caught hold of him. They covered his mouth with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform. They tied his hands and legs with rope and deposited him in a shallow drain with his own shirt put under his head as a pillow. They then went up to the sentry, who was induced to part with his rifle to one of the accused who had dressed himself as an officer, and attacked him. The sentry would have received the same treatment as his Lt. Commander but he raised a hue and cry and attracted the attention of the watchman. Fearing detection the assailants released the sentry and took to their heels. The sentry after escaping informed the Officer-on-duty at the Base and stated that he had recognised Rajwant Singh as one of his assailants. Next morning the dead body of the Lt. Commander was discovered in the drain where he had been left by the assailants.\n3.  Investigation followed and five persons were placed on trial before the Session Judge, Ernakulam Division, who convicted three and sentenced them as stated above and acquitted the other two. The appeals of these persons before the High Court failed. In these appeals the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder. It is also contended that s. 34 of the Indian Penal Code could not be used against any of the accused. Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two. We shall deal. with these arguments.\n4.  Our attention has been drawn to the inquest and post-mortem reports to establish what was actually done to the Lt. Commander. From these, it is established that the legs of the victim were tied with rope and his arms were tied behind his back. A large adhesive plaster was stuck over his mouth and completely sealed it. A handkerchief was next tied firmly over the adhesive plaster to secure it in position. The nostrils were plugged with cotton soaked in chloroform. Counsel for the appellants submit that all this shows that the assailants did not intend to kill the Lt. Commander but to render him unconscious. It is admitted that the closing of the mouth with the adhesive plaster and the handkerchief was complete and that it must have been impossible for the Lt. Commander to breathe through his mouth. The description, however, shows that the nostrils were also plugged with cotton wool soaked in chloroform. This was clearly stated in the inquest report and also in the post-mortem report and was established not only by the witnesses proving the inquest report but also by the doctor who performed the autopsy. In addition the prosecution has exhibited and proved numerous photographs of the dead body from various angles and these things are clearly seen in the photographs. According to the doctor death was due to asphyxiation.\n5.  In addition to the other evidence establishing the connection of Unni and Rajwant Singh with this crime there is a confession by Rajwant Singh before the Sub-Magistrate, Cochin in which he graphically describes the part played by him and Unni. Rajwant Singh also stated that they only wanted the Lt. Commander and the sentry to remain unconscious while they rifted the safe and took away the money. It is contended that we must accept the confession as a whole and must hold on its basis that the intention was not to kill, and that the offence of murder is therefore not established. As this is the most important point in the case we shall consider it first.\n6.  This point was argued by Mr. J. G. Sethi on behalf of Rajwant Singh and his arguments were adopted by Mr. Harbans Singh on behalf of Unni. Mr. Sethi argued that the offence was one of causing grievous hurt or at the worst of culpable homicide not amounting to murder and punishable under s. 304 (second part) of the Indian Penal Code. It is quite plain that the acts of the appellants resulted in the death of the victim and the offence cannot be placed lower than culpable homicide because the appellants must have known that what they were doing was likely to kW. The short question, therefore, is whether the offence was murder or culpable homicide.\n7.  Mr. Sethi submits that of the three clauses of s. 299. which define the offence of culpable homicide, the first deals with intentional killing and the second with injuries which are intentionally caused and are likely to cause death. He submits that these two clauses form the basis of the offence of murder and culpable homicide punishable under the first part of s. 304 and the third clause, which involves the causing of death with the knowledge that by his act the offender is likely to cause death, is the foundation of offence of culpable homicide not amounting to murder punish- able under the second part of s. 304.He submits that the appellants did not intend causing the death of the Lt. Commander but took action to keep him immobilised and silent while they rifled the safe. To achieve their purpose they tied the victim and closed his mouth and plugged the nostrils with cotton soaked in chloroform. Each of these acts denoted a desire to keep the Lt. Commander out of the way for the time being but not to kill him. Nor can the acts be described as done with the intention of causing such bodily injury as was likely to kill. At the most, says he, it can be said that the death was caused with the knowledge on the part of the appellants that by their acts they were likely to cause death and that brings the matter within s. 304 II, I.P.C.\n8.  The argument requires close examination. Two offences in- volve the killing of a person. They are the offence of culpable homicide and the more henious offence of murder. What distinguishes these two offences is the presence of a special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in s.300, I.P.C.as distinguishing murder from culpable homicide Unless the offence can be said to involve at least one such mental attitude it cannot be murder. We shall consider the acts of the appellants in relation to each of the clauses of s. 300.\n9.  The first clause says that culpable homicide is murder if the act by which death is caused is done with the intention of causing death. An intention to kill a person brings the matter so clearly within the general principle of mens rea as to cause no difficulty. Once the intention to kill is proved, the offence is murder unless one of the exceptions applies in which case the offence is reduced to culpable homicide not amounting to murder. As there is no question of any of the exceptions they need not be mentioned. But it is plain that the appellants did not contemplate killing the Lt. Commander. No part of their preparations shows an intention to kill. Had they so desired, they had ample time and opportunity to effectuate that purpose without going to the trouble of using cotton soaked in chloroform to stuff the nostrils. They had only to hold his nose closed for a few minutes. The confession to which we have referred also shows that the news of the death of the Lt. Commander came to them with as much surprise as shock. In these circumstances, the first clause of s. 300 cannot apply. The second clause deals with acts done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom harm is caused. The mental attitude here is two-fold. There is first the intention to cause bodily harm and next there is the subjective knowledge that death will be the likely consequence of the intended injury. English Common Law made no clear distinction between intention and recklessness but in our law the foresight of the death must be present. The mental attitude is thus made of two elements-(a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death. Here the injury or harm was intended. The appellants intended tying up the victim, closing his mouth by sticking adhesive plaster and plugging his nose with cotton wool soaked in chloroform. They intended that the Lt. Commander should be rendered unconscious for some time but they did not intend to do more harm than this. Can it be said that they had the subjective knowledge of the fatal consequences of the bodily harm they were causing? We think that on the facts the answer cannot be in the affirmative. To say that the act satisfied the test of subjective knowledge would be really tantamount to saying that the appellants intended to commit the murder of the Lt. Commander which, as said already, was not the case.\n10.  The third clause discards the test of subjective knowledge. It deals with acts done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause the result of the intentionally caused injury must be viewed objectively. If the injury that the offender intends causing and does cause is sufficient to cause death in the ordinary way of nature the offence is murder whether the offender intended causing death or not and whether the offender had a subjective knowledge of the consequences or not. As was laid down in Virsa Singh v. The State of Punjab ([1968] S.C.R. 1495) 1958 Indlaw SC 82 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established.\n11.  Applying these tests to the acts of the appellants we have to see first what bodily injury has been established. The bodily injury consisted of tying up the hands and feet of the victim, closing the mouth with adhesive plaster and plugging the nostrils with cotton soaked in chloroform. All these acts were deliberate acts which had been preplanned and they, therefore, satisfy the subjective test involved in the clause. The next question is whether these acts considered objectively were sufficient in the ordinary course of nature to cause death. In our judgment they were. The victim could only possibly breathe through the nostrils but they were also closed with cotton wool and in addition an asphyxiating agent was infused in the cotton. All in all it would have been a miracle if the victim had escaped. Death of the victim took place as a direct result of the acts of his assailants.\n12.  Mr. Sethi suggested that the victim must have struggled to free himself and had rolled into the drain and this must have pushed up the cotton further into the nostrils. This is not correct. The victim was placed in the drain by his assailants because his folded shirt was placed under his head and had obviously fainted by that time. No one seems to have been aware of his presence; otherwise discovery would have taken place earlier. This leads to the only conclusion that there was no change in the circumstances in which the victim was left by the assailants. The bodily injury proved fatal in the ordinary course of nature. The ordinary course of nature was neither interrupted nor interfered with by any intervening act of another and whatever happened was the result of the acts of the assailants, and their acts alone. Mr. Sethi argues that the sufficiency of the injury to cause death in the ordinary course of nature is something which must be proved and cannot be inferred from the fact that death has in fact taken place. This is true of some cases.\n13.  If a blow is given by reason of which death ensues, it may be necessary to prove whether it was necessarily fatal or in the language of the Code sufficient in the ordinary course of nature to cause death. In such a case it may not be open to argue backwards from the death to the blow, to hold that the sufficiency is established because- death did result. As death can take place from other causes the sufficiency is required to be proved by other and separate evidence. There are, however, cases and cases. Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary course and death takes place from the act of the offender and nothing else, it is hardly necessary to prove more than the acts themselves and the causal connection between the acts and the end result.\n14.  Mr. Sethi contends that the concentration of chloroform, the quantity actually used and its effect on the victim ought to have been proved. Alternatively he argues that the quantity of the cotton wool used to plug the nostrils and the manner of plugging should have been established before a finding can be given that the bodily injury was sufficient in the ordinary course of nature to cause death. This would, of course, have been necessary if it could at all be thought that not the acts of the assailants but some other intervening circumstance might have led to the death of the victim. But there was none. There was no interference by anyone else. Death was due to asphyxiation whether caused by the mechanical obstruction of the nostrils or by chloroform as an asphyxiating agent, or both. Whichever way one looks at it, the injury which caused the death was the one inflicted by the assailants. The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts. There was no need to establish more than this in the case. As was pointed out in Anda v. State of Rajasthan (A.I. R. 1965 S.C. 148 at 151) 1965 Indlaw SC 489 \"the emphasis in clause thirdly is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues, and if the causing of the injury is intended, the offence is murder\". In this case the acts of the appellants were covered by the third clause in s. 300. As we are satisfied that this case falls within clause thirdly we need hardly consider whether it falls also within the fourth clause or not. That clause comprehends, generally, the commission of imminently dangerous acts which must in all probability cause death. To tie a man so that he cannot help himself, to close his mouth completely and plug his nostrils with cotton wool soaked in chloroform is an act imminently dangerous to life, and it may well be said to satisfy the requirements of the last clause also, although that clause is ordinarily applicable to cases in which there is no intention to kill any one in particular. We need not, however, discuss the point in this case. We accordingly hold that the offence was murder.\n15.  All the acts were done after deliberation by the appellants. They were of a type which required more than one person to perpetrate. What was done had already been discussed and the execution of the plan was carried out as contemplated. That there was a common intention admits of no doubt and as cl.3 of s. 300 views the consequence of the act objectively all those who shared the common intention of causing the bodily injury which was sufficient to cause death in the ordinary course of nature must beheld responsible for the resulting offence. Even if the consequence was different from what was actually intended, those who abetted (and the appellants were either offenders principally or abetters) would be equally responsible under s. 113 of the Indian Penal Code provided they knew that the act which they were abetting was likely to cause that effect. On the argument of the appellants that s. 304 11 applies, it is obvious that the above provision must be attracted. In our judgment the appellants were rightly adjudged guilty under s. 302/34, Indian Penal Code.\n16.  As regards the sentence of death passed on Unni, we see no Reason to interfere. He was the master mind behind the whole affair and the sentence of death was, therefore, appropriate. We see no force in either appeal. They will be dismissed.\nAppeals dismissed.\n"}
+{"id": "O4ZektUJrh", "title": "", "text": "Augustine Saldanha v State Of Karnataka\nSupreme Court of India\n\n26 August 2003\nAppeal (crl.) 854 of 1996, [With Criminal Appeal No. 1734 of 1996]\nThe Judgment was delivered by : Arijit Pasayat, J.\n1.  These two appeals relate to the common judgment of Karnataka High Court whereby the judgment of acquittal passed by the Trial Court was set aside. Augustine Saldanha- appellant in Criminal appeal no.854/1996 was held guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo imprisonment for life. Rocky Saldanha-appellant in Criminal appeal no.1734/1996 was found guilty for offences punishable under Section 324 IPC and sentenced to undergo imprisonment for one year. They were also sentenced to pay fine of Rs.5,000/- and Rs.1,000/- respectively with default stipulation of six months SI and one month SI respectively.\n2.  Accusations which formed foundation of prosecution version are essentially as follows:\n3. On 17.5.1989 Paul Saldanha (hereinafter referred to as 'the deceased') and Felix Saldanha (PW1) were returning to their houses after viewing a movie. When they reached near the house of the appellants, accused Augustine and Rocky along with Henry Saldanha (acquitted) assaulted the deceased. They were armed with sticks. As a result of the assaults the deceased breathed his last while PW1 suffered grievous injuries. The incident took place between 10.00 to 10.30 p.m. On next day morning around 5.15, PW8 ASI, of Mulki Police Station received information from an unknown person of Kumeri that two bodies were lying at Shadguri of Aikala village. Though he could not ask the name and address of the informant, he made entries in the General Diary and proceeded to the spot along with other police personnel. At the spot he found dead body of the deceased and PW1 in injured condition. They were taken to hospital and complaint (Exhibit P-1) was recorded. PW8 registered the FIR after coming to the police station, and dispatched the same to the Magistrate at Mulki which was received at about 11.15 a.m. Investigation was undertaken on the basis of the report of PW1, and after completion thereof charge-sheet was placed. It needs to be noted that on the basis of information given by the accused while in custody recoveries were made. In the complaint (Exhibit P-1) the informant PW1 had stated that he could see assailants by focussing a torch. He had lost consciousness temporarily, but when he was in sense, could hear that PWs 3 and 4 i.e. two taxi drivers were asked by the accused to shift him and deceased to different places; but they refused to do so. In Court, apart from the evidence of PW1 the evidence of PWs 3 and 4 were also tendered and pressed into service to substantiate the accusations. The Additional Sessions Judge of Dakshina Kannada, Mangalore found the evidence of PW1 to be not believable and directed acquittal, and the circumstances which weighed with him are as follows:\n4. Credibility of the report (Exhibit P-1) was doubted because the injury sustained by PW1 was so serious that he was given treatment in the emergency room and it was highly improbable that he would have been in a position to give statement (Exhibit P-1). While PW8 stated that he had recorded the complaint, handwriting therein was similar to those in which Exhibits P-8 to P-10 (Panchnamas) were written. Prosecution version was also doubted because PW2 stated at one place that PW1 had been taken out of the hospital at the time of spot inspection, he stated subsequently that PW1 was not taken out. The evidence of PW1 was also discarded on the ground that there were exaggerations and improvements and there was no specific mention about identification by torch and moonlight in Exhibit P-1 as was stated in Court. Only in the first information report, it was mentioned that witness was holding a torch. He also found that the recovery of the torch from the spot was doubtful. It was also noted that the torch was broken and PW1 did not say as to how the torch was broken. The Trial Court doubted the version of PW1 because no explanation was given as to how his shirt was torn and this indicated that there was some violence.\n5. The Trial Court noted that PW1 did not specifically say as to why PWs 3 and 4 declined to take the dead body of deceased and PW1 to a different place, though PWs 3 and 4 gave details in Court. Another circumstance to doubt the version of PW1 was that there were several injuries on the body of the deceased, and the PW1, while PW1 stated that one blow each was given to the deceased and to him. With these findings the Trial Court found the accused persons not guilty and they were acquitted. In appeal, the High Court found that each of the reasons given by the Trial Court suffered from vulnerability. The High Court found that evidence of PW1 was credible and cogent. So far as injuries on the deceased and PW1 are concerned, it was noted that doctor had stated that several injuries were possible because of one blow. In case of PW1 one injury related to complaint of pain on the leg. When PW1 had stated specifically about the torch in Exhibit P-1, the mere fact that there was non-mention of moonlight was not good enough to discard the evidence as unreliable. Similarly, even if torch was broken it was not necessary for PW1 to explain how it was broken. Evidence was that he had fallen down after receiving the blow on the head. It was also noticed that PW2-doctor's evidence did not affect the credibility of prosecution evidence that PW1 was taken to the spot, in view of what had been indicated by the doctor in his evidence and as borne out by documents. Merely because PW1 had not indicated in Exhibit P-1 as to why PWs 3 and 4 did not want to take deceased and PW1 in their respective taxies that cannot be considered to be a vital omission. In fact evidence of PWs 3 and 4 clearly establish the role of accused persons and the veracity of prosecution version. With these findings accused Augustine Saldanha was convicted and sentenced by Additional Sessions Judge under Section 302 IPC as aforesaid. Similarly, considering the nature of the injuries sustained by PW1, accused Rocky Saldanha was sentenced to undergo one year imprisonment as noted above for offences punishable under Section 324 IPC.\n6.  In support of the appeal learned counsel has submitted that the Trial Court had correctly appreciated the evidence and the High Court was not justified in reversing the findings. It was quite improbable that PW1 identified the accused persons in the dark night. The injuries found on the body of the deceased and PW1 do not tally with the version as stated by PW1 in his evidence.\n7.  The evidence of PW1 and PW8 suffers from many infirmities. For example, as to how PW1 who was in unconscious condition could be able to give a report without any medical aid, is not explained. Residually, it was argued that one blow was given in the dark night and it would rule out application of Section 302 IPC.\n8.  In response, learned counsel for the State submitted that the High Court has analysed the evidence in detail and found the acquittal not justified. The circumstances which weighed the Trial Court are not germane and the High Court has rightly held that the conclusions were erroneous. The analysis made by the High Court suffers from no infirmity and the conclusions are, therefore, in order. Minor and trifle circumstances were magnified by the Trial Court as rightly observed by the High Court.\n9.  We find that the High Court has analysed the evidence in great detail, and concluded that Trial Court's conclusions were fallacious and based on magnification of trifle and unimportant materials, which in no way affected credibility of prosecution version. We find no deficiency in view taken by High Court.\n10.  The High Court was, therefore, justified in holding that Augustine Saldanha and Rocky Saldanha were responsible for the death and injury to the deceased and PW1 respectively.\n11. The only other point which needs to be considered is whether Section 302 IPC has been rightly made applicable.\n12.  This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.\n13.  The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.\n14.  Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.\n15.  Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words \"sufficient in the ordinary course of nature\" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words \"bodily injury.......sufficient in the ordinary course of nature to cause death\" mean that death will be the \"most probable\" result of the injury, having regard to the ordinary course of nature.\n16.  For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, (AIR 1966 SC 1874 1966 Indlaw SC 91) is an apt illustration of this point.\n17.  In Virsa Singh v. State of Punjab, (AIR 1958 SC 465 1958 Indlaw SC 82), Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, \"thirdly\". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations.\n18. Thirdly, It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.\n19.  The ingredients of clause \"Thirdly\" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows:\n\"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, \"thirdly\". First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.\"\nThe learned Judge explained the third ingredient in the following words:\n\"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.\"\n20.  These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case 1958 Indlaw SC 82 (supra) for the applicability of clause \"Thirdly\" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted.\n21.  Thus, according to the rule laid down in Virsa Singh's case 1958 Indlaw SC 82, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.\n22.  Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.\n23.  The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.\n24.  The position was illuminatingly highlighted by this Court in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976 (4) SCC 382 1976 Indlaw SC 192) and recently in Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274 2002 Indlaw SC 1777).\n25.  Undisputedly the incident took place in a dark night when visibility was poor but identification was possible because the victims of the assailants were known to each other. Therefore, there is nothing wrong in PW1 identifying the accused persons. The fact remains that in the dark night obviously one cannot move without a torch or some other lighted object. In fact, in Exhibit P-1 also there is mention of a torch.\n26.  It needs to be noted that only one blow was given in the dark night. Though it cannot be said as a rule of universal application that whenever one blow is given application of Section 302 IPC will be ruled out and that even a single blow delivered with a heavy or dangerous weapon on a vital part of the body would make the offence a murder. On the peculiar facts found in the present case, we feel that clause 'Thirdly' of Section 300 cannot be applied. The blow was said to have been delivered with a stick and in a pitch dark night of time in the forest surroundings of the area where it occurred. It could not reasonably be stated with any certainty that the accused chose that vital part of the body to inflict the injury and that the blow was aimed without any of such specific intention could have landed on the head due to so many other circumstances, than due to any positive intention also. We, therefore, alter the conviction of appellant Augustine Saldanha from Section 302 IPC to Section 304 Part II. Custodial sentence of eight years would meet ends of justice. His appeal is accordingly allowed to the indicated extent. So far as appellant Rocky Saldanha is concerned, in view of the detailed analysis made by the High Court, we do not find any interference with his conviction or the sentence imposed. His appeal is dismissed. The accused persons, who are on bail, are directed to surrender to custody to serve remainder of their sentences.\nAppeal dismissed\n"}
+{"id": "qpgrxMp1ju", "title": "", "text": "State of Andhra Pradesh v Rayavarapu Punnayya and Another\nSupreme Court of India\n\n15 September 1976\nCriminal Appeal No. 214 of 1971. (Appeal by Special Leave from the judgment and Order dated 27-7. 1970 of the Andhra Pradesh High. Court in Criminal Appeals Nos. 26 and 27/69).\nThe Judgment was delivered by : Ranjit Singh Sarkaria, J.\n1.  This appeal by special leave is directed against a judgment of the High Court of Andhra Pradesh. It arises out of these facts.\n2.  In Rompicherla village, there were factions belonging to three major communities viz., Reddys, Kammas and Bhatrajus. Rayavarapu (Respondent No. 1 herein) was the leader of Kamma faction, while Chopparapu Subbareddi was the leader of the Reddys. In politics, the Reddys were supporting the Congress Party, while Kammas were supporters of Swatantra Party. There was bad blood between the two factions which. were proceeded against under s. 107, Cr. P.C. In the Panchyat elections of 1954, a clash took place between the two parties. A member of the Kamma faction was murdered. Consequently, nine persons belonging to the Reddy faction were prosecuted for that murder. Other incidents also' took place in which these warring factions were involved. So much so, a punitive police force was stationed in this village to keep the peace during the period from March 1966 to September 1967. Sarikonda Kotamraju, the deceased person in the instant case, was the leader of Bhatrajus. In order to devise protective measures against the onslaughts of their opponents, the Bhatrajus held a meeting at the house of the deceased, wherein they resolved to defend themselves against the aggressive actions of the respondents and their party-men. PW 1, a member of Bhatrajus faction has a cattle shed. The passage to this cattle-shed was blocked by the other party. The deceased took PW 1 to Police Station Nekarikal and got a report lodged there. On July 22, 1968, the Sub-Inspector of Police came to the village and inspected the disputed wail in the presence of the parties. The Sub-Inspector went away directing both the parties to come to the Police Station on the following morning so that a compromise might be effected.\n3.  Another case arising out of a report made to the police by one Kallam Kotireddi against Accused 2 and 3 and another in respect of offences under ss. 324, 323 and 325, Penal Code was pending before a Magistrate at Narasaraopet and the next date for hearing fixed in that case was July 23, 1968.\n4.  On the morning of July 23, 1968, at about 6-30 a.m., PWs 1, 2 and the deceased boarded Bus No. AP 22607 at Rompicherla for going to Nekarikal. Some minutes later, Accused 1 to 5 (hereinafter referred to as A1, A2, A3, A4 and A5) also got into the same bus. The accused had obtained tickets for proceeding to Narasaraopet. When the bus stopped at Nekarikal Cross Roads, at about 7-30 a.m., the deceased and his companions alighted for going to the Police Station. The five accused also got down. The deceased and PW 1 went towards a Choultry run by PW 4, While PW 2 went to the roadside to ease himself. A1 and A2 went towards the Coffee Hotel situate near the Choultry. From there, they picked up heavy sticks and went after the deceased into the Choultry. On seeing the accused. P W 1 ran away towards a hut nearby. The deceased stood up.\n5.  He was an old man of 55 years. He was not allowed to run. Despite the entreaties made by the deceased with folded hands, A-1 and A-2 indiscriminately pounded the legs and arms of the deceased. One of the by standers, PW 6, asked the assailants as to why they were mercilessly beating a human being, as if he were a buffalo. The assailants angrily retorted that the witness was nobody to question them and continued the beating till the deceased became unconscious.The accused then threw their sticks at the spot, boarded another vehicle, and went away. The. occurrence was witnessed by PWs 1 to 7. The victim was removed by PW 8 to Narasaraopet Hospital in a temporary. There, at about 8.45 a.m., Doctor Konda Reddy examined him and found 19 injuries, out of which, no less than 9 were (internally) found to be grievous. They were:\nDislocation of distal end of proximal phalanx of left middle finger.\nFracture of right radius in its middle.\nDislocation of lower end of right ulna.\nFracture of lower end of right femur.\nFracture of medial malleolus of right tibia.\nFracture. of lower 1/3 of right fibula.\nDislocation of lower end of left ulna.\nFracture of upper end of left tibia.\nFracture of right patella.\n6.  Finding the condition of the injured serious, the Doctor sent information to the Judicial Magistrate for getting his dying declaration -recorded. On Dr. K. Reddy's advice, the deceased was immediately removed to the Guntur Hospital where he was examined and given medical aid by Dr. Sastri. His dying declaration, Ex. P-5, was also recorded there by a Magistrate (PW 10) at about 8.05 p.m. The deceased, however, succumbed to his injuries at about 4.40 a.m. on July 24, 1968, despite medical aid.\n7.  The autopsy was conducted by Dr. P.S. Sarojini (PW 12) in whose opinion, the injuries found on the deceased were cumulatively sufficient to cause death in the ordinary course of nature. The cause of death, according to the Doctor, was shock and haemorrhage resulting from multiple injuries.\n8.  The trial Judge convicted A-1 and A-2 under s. 302 as well as under s. 302 read with s. 34, Penal Code and sentenced each of them to imprisonment for life.\n9.  On appeal by the convicts, the High Court altered their conviction to one under s. 304, Pt. II, Penal Code and reduced their sentence to 'five years rigorous imprisonment, each.\n10.  Aggrieved by the judgment of the High Court, the State has come in appeal to this Court after obtaining special leave.\n11.  A-1, Rayavarappu Punnayya (Respondent 1) has, as reported by his Counsel, died during the pendency of this appeal. This information is not contradicted by the Counsel appearing for the State. This appeal therefore, in so far as it relates to A, abates.\nThe appeal' against A-2 (Respondent 2), however, survives for decision.\n'The principal question that falls to be considered in this appeal is, whether the offence disclosed by the facts and circumstances established by the prosecution against the respondent, is 'murder' or 'culpable homicide not amounting to murder'.\n12.  In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to. murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degress of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in s. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of s. 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of s. 304.\n13.  The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of ss. 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.\n14.  Cl. (b) of s. 299 corresponds with cls. (2) and (3) of s. 300. The distinguishing feature of the mens rea requisite under cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that' such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of el. (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of cl. (2) is borne out by illustration (b) appended to s. 300.\n15.  Cl. (b) of s. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under cl. (2) of s. 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the he,art, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to. cause death or bodily injury sufficient 'in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.\n16.  In cl. (3) of s. 300, instead of the words 'likely to cause death' occurring in the corresponding el. (b) of s. 299, the words \"sufficient in the ordinary course of nature\" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result 'in miscarriage of justice. The difference between cl. (b) of s. 299 and cl. (3) of s. 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word \"likely\" in cl. (b) of s. 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words \"bodily injury... sufficient in the ordinary course of nature to cause death\" mean that death will be the \"most probable\" result of the injury having regard to the ordinary course of nature.\n17.  For cases to fall within cl. (3), it is not necessary that the offender intended to cause death, So long as death ensues from the intentional. bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and anr. v. State of Kerala, A.I.R. 1966 S.C. 1874 is an apt illustration of this point.\n18.  In Virsa Singh v. The State of Punjab, [1958] S.C.R. 1495 1958 Indlaw SC 82 Vivian Bose j. speaking for this Court, explained the meaning' and scope of Cl. (3), thus (at p. 1500):\n\"The prosecution must prove the following facts before it can bring a case under s. 300, 3rdly'. First, it must establish, quite objectively, that a bodily injury is present;. secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be ,proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.\"\n19.  Thus according to the rule laid down in Virsa Singh's case 1958 Indlaw SC 82 (supra) even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to s. 300 clearly brings out this point.\n20.  Cl. (c) of s. 299 and cl. (4) of s. 300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of s. 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general--as distinguished from a particular person or persons---being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.\n21.  From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not. amounting to murder,' on ,the facts of a case, it will' be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to \"culpable homicide\" as defined in s. 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of s. 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in s. 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of s. 304, depending. respectively, on whether the second or the third Clause of s. 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s. 304, Penal Code.\n22.  The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so inter-twined and the second and the third stages so telescoped into each other, that it may not be convenient, to give a separate treatment to the matters involved in the second and third stages.\n23.  Now let us consider the problem before us in the light of the above enunciation.\n24.  It is not disputed that the death of the deceased was caused by the accused, there being a direct causal connection between the beating administered by A-1 and A-2 to the deceased and his death. The accused confined the beating to. the legs and arms of the deceased, and therefore, it can be said that they perhaps had no \"intention to cause death\" within the contemplation cl. (a) of s. 299 or cl. (1) of s. 300. It is nobody's case that the instant case falls within el. (4) of s. 300. This clause, as already noticed, is designed for that class of cases where the act of the offender is not directed against any particular individual but there is in his act that recklessness and risk of imminent danger, knowingly and unjustifiably incurred, which is directed against the man in general, and places the lives of many in jeopardy. Indeed, in all fairness, Counsel for the appellant has not contended that the case would fall under el. (4) of s. 300. His sole contention is that even if the accused had no intention to cause death, the facts established fully bring the case within the purview of cl. (3) of s. 300 and as such the offence committed is murder and nothing less. In support of this contention reference has been made to Andhra v. State of Rajasthan, A.I.R. 1966 S.C. 148 1965 Indlaw SC 489 and Rajwant Singh v. State of Kerala (supra).\n25.  As against this, Counsel for the respondent submits that since the accused selected only non-vital parts of the body of the deceased, for inflicting the injuries, they could not be attributed the mens rea requisite for bringing the case under cl. (3) of s. 300; at the most, it could be said that they had knowledge that the injuries inflicted by them were likely to cause death and as such the case falls within the third clause of s. 299, and the offence committed was only \"culpable homicide not amounting to murder\", punishable under s. 304, Part 11. Counsel has thus tried to support the reasoning of the High Court.\n26.  The trial Court, 'as 'already noticed, had convicted the respondent of the offence of murder. It applied the rule in Virsa Singh's case 1958 Indlaw SC 82 (supra). and the ratio of Anda v. State 1965 Indlaw SC 489 and held that the case was clearly covered by clause\n27.  Thirdly of s. 300. The High Court has disagreed with the trail Court and held that the offence was not murder but one under s. 304, Pt. II.\nThe High Court reached this conclusion on the following reasoning:\n\"(a) \"There was no premeditation in the attack. It was almost an impulsive act\".\n(b) \"Though there were 21 injuries, they were all on the arms and legs and not on the head or other vital parts the body.\"\n(c) \"There was no compound fracture to result in heavy haemorrhage; there must have been some bleeding\". (which) \"according to PWI might have stopped with in about half an hour to one hour.\"\n(d) \"Death that had occurred 21 hours later, could have been only due to shock and not due to haemorrhage also, as stated by PW 12... who conducted the autopsy. This reference is strengthened by the evidence of PW 26 who says that the patient was under shock and he was treating him for shock by sending fluids through his vein. From the injuries inflicted the accused therefore could not have intended to cause death.\"\n(e) \"A1 and A2 had beaten the deceased with heavy sticks. These beatings had resulted in fracture of the right radius, right femur, right tibia, right fibula, right patalla and left tibia and dislocation of... , therefore considerable force must have been used while inflicting the blows. Accused 1 and 2 should have therefore inflicted these injuries with the knowledge that they are likely, by so beating, to cause the death of the deceased, though they might not have had the knowledge that they were so imminently dangerous that in all probability their acts would result in such injuries as are likely to cause the death. The offence ...is therefore culpable homicide falling under s. 299, I.P.C. punishable under s. 304 Part II and not murder.\"\n28.  With respect we are unable to appreciate and accept this reasoning. With respect, to be inconsistent, erroneous and largely speculative, it appears to us.\n29.  To say that the attack was not premeditated or pre-planned is not only factually incorrect but also at war with High Court's own finding that the injuries were caused to the deceased in furtherance of the common intention of A-1 and A-2 and therefore, s. 34, I.P.C. was applicable. Further, the finding that there was no compound fracture, no heavy haemorrhage and the cause of the death was shock, only, is not in accord with the evidence on the record. The best person to speak about haemorrhage and the cause of the death was Dr. P.S. Sarojini (PW 12) who had conducted the autopsy. She testified that ,the cause of death of the deceased was \"shock and haemorrhage due to multiple injuries\". This categorical opinion of the Doctor was not assailed in cross-examination. In the post-mortem examination report Ex. P-8, the Doctor noted that the heart of the deceased was found full of clotted blood. Again in injury No. 6, which also was an internal fracture, the bone was visible through the wound. Dr. D.A. Sastri, PW 26, had testified that he was treating Kotamraju injured of shock, not only by sending fluids through his vein, but also blood.\n30.  This part of his statement wherein he spoke about the giving of blood transfusion to the deceased, appears to have been overlooked by the High Court. Dr. Kondareddy, PW 11, who was the first Medical Officer to examine -the injuries of the deceased, had noted that there was bleeding and swelling around injury No. 6 which was located on the left leg 3 inches above the ankle. Dr. Sarojini, PW 12, found fracture of the left tibia underneath this injury. There could therefore, be no doubt that this was a compound fracture. P.W. 11 found bleeding from the other abraded injuries, also. He however found the condition of the injured grave and immediately sent an information to the Magistrate for recording his dying declaration. PW 11 also advised immediate removal of the deceased to the bigger Hospital at Guntur. There, also, Dr. Sastri finding that life in the patient was ebbing fast, took immediate two-fold action.\n31.  First, he put the patient on blood transfusion. Second, he sent an intimation for recording his dying declaration. A Magistrate (PW 10) came there and recorded the statement.\n32.  These are all tell-tale circumstances which unerring by show that there was substantial haemorrhage from some of the injuries involving compound fractures. This being the case, there was absolutely no reason to doubt the sworn word of the Doctor, (PW 12) that the cause of the death was shock and haemorrhage.\n33.  Although the learned Judges of the High Court have not specifically referred to the quotation from page 289, of Modi's book on Medical Jurisprudence and Toxicology (1961 Edn.) which was put to Dr. Sarojini in cross-examination, they appear to have derived support from the same for the argument that fractures of such bones \"are not ordinarily dangerous\"; therefore, the accused could not have intended cause death but had only knowledge that they were likely by such beating to cause the death of the deceased.\n34.  It will be worthwhile to extract that quotation from Mody, as a reference to the same was made by Mr. Subba Rao before us, also.\n35.  According to Mody: \"Fractures are not ordinarily dangerous unless they are compound, when death may occur from ,loss of blood, if a big vessel is wounded by the split end of a fractured bone.\"\n36.  It may be noted, in the first place, that this opinion of the learned author is couched in too general and wide language. Fractures of some vital bones, such as those of the skull and the vertebral column are generally known to be dangerous to life. Secondly, even this general statement has been qualified by the learned author, by saying that compound fractures involving haemorrhage, are ordinarily dangerous. We have seen, that some of the fractures underneath the injuries of the deceased, were compound fractures accompanied by substantial haemorrhage. In the face of this finding, Mody's opinion, far from advancing the contention of the defence, discounts it.\n37.  The High Court has held that the accused had no intention to cause death because they deliberately avoided to hit any vital part of the body, and confined the beating to the legs and arms of the deceased. There is much that can be said in support of this particular finding. But that finding assuming it to be correct does not necessarily take the case out of the definition of 'murder'. The crux of the matter is, whether the facts established bring the case within Clause Thirdly of s. 300. This question further narrows down into a consideration of the two-fold issue :.\n(i) Whether the bodily injuries found on the deceased were intentionally inflicted by the accused ?\n(ii) If so, were they sufficient to cause death in the ordinary course of nature ?\n38.  If both these elements are satisfactorily established, the offence will be 'murder', irrespective of the fact whether an intention on the part of the accused to cause death, had or had not been proved.\n39.  In the instant case, the existence of both these elements was clearly established by the prosecution. There was bitter hostility between the warring factions to which the accused and the deceased belonged. Criminal litigation was going on between these factions since long. Both the factions had been proceeded against under s. 107, Cr. P.C.\nThe accused had therefore a motive to beat the deceased.\n40.  The attack was premeditated and pre-planned, although the interval between the conception and execution of the plan was not very long. The accused had purchased tickets for going further to Narasaraopet, but on seeing the deceased, their bete noir, alighting at Nekarikal, they designedly got down there and trailed him. They selected heavy sticks about 3 inches in diameter, each, and with those lethal weapons, despite the entreaties of the deceased, mercilessly pounded his legs and arms causing no less than 19 or 20 injuries, smashing at least seven bones. mostly major bones, and dislocating two more. The beating was administered in a brutal and reckless manner. It was pressed home with an unusually fierce, cruel and sadistic determination. When the human conscience of one of the shocked bystanders spontaneously cried out in protest as to why the accused were beating a human being as if he were a buffalo, the only echo it could draw from the assailants, a minacious retort, who callously continued their malevolent action, and did not stop the beating till the deceased became unconscious. May be, the intention of the accused was to cause death and they stopped the beating under the impression that the deceased was dead. But this lone circumstance cannot take this possible inference to the plane of positive proof. Nevertheless, the formidable weapons used by the accused in the beating, the savage manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, the callous conduct of the accused in persisting in the assault even against the protest of feeling bystanders all, viewed against the background of previous animosity between the parties, irresistibly lead to the conclusion that the injuries caused by the accused to the deceased were intentionally inflicted, and were not accidental. Thus the presence of the first element of Clause Thirdly of s. 300 had been cogently and convincingly established.\n41.  This takes us to the second element of Cl. (3). Dr. Sarojini, PW 12, testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death. In her opinion--which we have found to be entirely trustworthy the cause of the death was shock and haemorrhage due to the multiple injuries. Dr. Sarojini had conducted the post-mortem examination of the deadbody of the deceased. She had dissected the body and examined the injuries to the internal organs. She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the sufficiency or otherwise of the injuries from which the death ensued. Dr. Sarojini's evidence on this point stood on a better footing than that of the Doctors (PWs. 11 and 26) who had externally examined the deceased in his life-time. Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature. There is no reason why Dr. Sarojini's evidence with regard to the second element of Cl. (3) of s. 300 be not accepted. Dr. Sarojini's evidence satisfactorily establishes the presence of the second element of this clause.\n42.  There is therefore, no escape from the conclusion, that the offence committed by the accused was 'murder', notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt.\n43.  In Anda v. State of Rajasthan 1965 Indlaw SC 489 (supra), this Court had to deal with a very similar situation. In that case, several accused beat the victim with sticks after dragging him into a house and caused multiple injuries including 16 lacerated wounds on the arms and legs, a hematoma on the forhead and a bruise on the chest. Under these injuries to the arms and legs lay fractures of the right and left ulnas, second and third metacarpal bones on the right hand and second metacarpal bone of the left hand, compound fractures of the right tibia and right fibula. There was loss of blood from the injuries. The Medical Officer who conducted the autopsy opined that the cause of the death was shock and syncope due to multiple injuries; that all the injuries collectively could be sufficient to cause death in the ordinary course of nature, but individually none of them was so sufficient.\n44.  Question arose whether in such a case when no significant injury had been inflicted on a vital art of the body, and the weapons used were ordinary lathis, and the accused could not be said to have the intention of causing death, the offence would be 'murder' or merely 'culpable homicide not amounting to murder'. This Court speaking through Hidayatullah J. (as he then was), after explaining the comparative scope of and the distinction between ss. 299 and 300, answered the question in these terms:\n\"The injuries were not on a vital part of the body and no weapon was used which can be described as specially dangerous. Only lathis were used. It cannot, therefore, be said safely that there was an intention to cause the death of Bherun within the first clause of s. 300. At the same time, it is obvious that his hands and legs were smashed and numerous bruises and lacerated wounds were caused. The number of injuries shows that every one joined in beating him. It is also clear that the assailants aimed at breaking his arms and legs. Looking at the injuries caused to Bherun in furtherance of the common intention of all it is clear that the injuries intended to be caused were sufficient to cause death in the ordinary course of nature, even if it cannot be said that his death was intended. This is sufficient to bring the, case within 3rdly of s. 300.\"\n45.  The ratio of Anda v. State of Rajasthan 1965 Indlaw SC 489 (supra) applies in full force to the facts of the present case. Here, a direct causal connection between the act of the accused and the death was established. The injuries were the direct cause of the death. No secondary factor such as gangrene, tetanus etc., supervened. There was no doubt whatever that the beating was premeditated and calculated. Just as in Anda's case, here also, the aim of the asailants was to smash the arms and legs of the deceased, and they succeeded in that design. causing no less than 19 injuries, including fractures of most of the bones of the legs and the arms.\n46.  While in Anda's case, the sticks used by the assailants were not specially dangerous, in the instant case they were unusually heavy, lethal weapons. All these acts of the accused were pre-planned and intentional, which, considered objectively in the light of the medical evidence. were sufficient in the ordinary course of nature to cause death. The mere fact that the beating was designedly confined by the assailants to the legs and arms, or that none of the multiple injuries inflicted was individually sufficient in the ordinary course of nature to cause death, will not exclude the application of Clause 3rdly of s. 300. The expression \"bodily injury\" in Clause 3rdly includes also its plural, so that the clause would cover a case where all the injuries intentionally, caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause. as a\n47. ready noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fail under Clause 3rdly of s. 300. All the conditions which are a pre-requisite for the applicability of this clause have been established and the offence committed by the accused in the instant case was 'murder'.\n48.  For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under s. 302, 302/34, to that under s. 304, Part II, Penal Code. Accordingly we allow this appeal and restore the order of the trial Court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail shall be arrested and committed to prison to serve out the sentence inflicted on him.\n"}
+{"id": "8IRh1E2JDB", "title": "", "text": "Abdul Waheed Khan Alias Waheed and Others v State of Andhra Pradesh\nSupreme Court of India\n\n27 August 2002\nAppeal (Cr.) 917-920 of 2002\nThe Judgment was delivered by : Arijit Pasayat, J.\n1. These four appeals relate to a common judgment passed by a Division Bench of the Andhra Pradesh High Court, whereby three appeals filed by the accused-appellants and one by the State were disposed of. While the accused-appellants challenged their conviction u/s. 304 Part I read with S. 34 of the Indian Penal Code, 1860 (in short 'IPC'), State had taken the stand that accused-appellants should have been convicted u/s. 302 read with S. 34 IPC and the two accused who had been acquitted by the trial court should have also been convicted. The appeals filed by the accused-appellants were dismissed and the appeal filed by the State was partially allowed by converting sentence to S. 302 IPC.\n2. Prosecution version sans unnecessary details as unfolded during trial was as follows:-\n3. Accused no.4 Babu Jani @ Majid Khan @ Majid was an ex-employee of Hazi Mohd. Yakub (hereinafter referred to as 'deceased'), who had five textile wholesale shops, which he was running along with his sons and grandsons. Accused Babu Jani joined hands with city dossier criminals, namely, Abdul Waheed Khan @ Waheed (accused no.1), Mohd. Haneef @ Haneef (accused no.2) and Mohd. Khadeer @ Khadeer (accused no.3); and hatched a plan with the aforesaid three accused persons and a friend of his namely, Aleem (accused no.5). The object was to rob the deceased, and if necessary by liquidating him. Accused Babu Jani had the knowledge that the deceased used to go his house around 8.00 p.m. with the sale proceeds of the shops and the collections were more than rupees one lakh. In pursuance of the conspiracy, accused Babu Jani took the first three accused on 19 February 1993 and 20 February 1993 between 7 and 7.30 p.m., to point out the deceased and to acquaint them with his movements of a fixed nature.\n4. First attempt was made on 22 February 1993, but finding a lot of people around the spot, the intended objective could not be achieved. On the next day i.e. 23 February 1993 the fateful date of the incident, at about 7.30 p.m. after obtaining information from accused Babu Jani accused nos.1 to 3 waited near house of the deceased on a stolen Chetak scooter and were armed with the knives. Accused no.2 was having a plastic tin containing chilly powder water in his hands. At about 7.45 p.m. the deceased reached near his house in his Ambassador car driven by Mohd. Taher PW2. He was carrying cash of more than Rs.2.32 lakhs and demand drafts of Rs.1,60,000/- which were in his cloth bag. When the driver opened the rear right door of the car and went to collect the tiffin-carrier of the deceased from the left front door, accused nos. 1 to 3 kept their scooter in motion and rushed to the deceased Hazi Mohd. Yakub and began stabbing him indiscriminately with their three knives, while accused no.2 tried to snatch the bag containing the cash and the demand drafts. There was street light and also light inside the car. When PW2 rushed to the rescue of the deceased, accused no. 2 threw chilly powder water on his face and he shouted for help. Further knife blows were given by the three accused persons till the deceased collapsed. Accused no.2 snatched away the cash bag from the hands of the deceased and all the three accused persons fled away on their scooter. Though PW2 and one Samad Khan (PW-4) chased the accused persons to some distance, they succeeded in fleeing away. Several other persons including Mohd. Idris Ali Khan, Mohd. Abdul Bari (PW-3) tried to come near the deceased, but they found him dead. The three accused Nos. 1 to 3 went to the house of accused Aleem at Boda Banda where accused Babu Jani was waiting for them. Aleem harboured accused nos. 1 to 4 in his house and they shared the looted money but destroyed the demand drafts. Police on getting information reached at the spot and the First Information Report was lodged by Mohd. Iqbal (PW-1). Investigation was conducted and on completion thereof charge-sheet was filed.\n5. While the first three accused persons were charged for having committed offences punishable u/s. 302 IPC read with S. 34 thereof and S. 392 read with S. 34 thereof, and S. 25(1-B) of the Arms Act, 1959 (in short 'Arms Act'). The first four accused persons were charged with commission of offences punishable u/s. 302 read with Section 120-B(1) IPC as well with S. 392 read with Section 120-B(1) IPC. Accused no.5 was charged with commission of offence punishable u/s. 302 read with S. 212 IPC, and S. 411 IPC. The accused persons pleaded innocence.\n6. In order to substantiate its case, the prosecution examined 33 witnesses. The trial court found the evidence of the eye-witnesses to be credible and held accused nos. 1 to 3 to be guilty. However, it was concluded that the offences for the commission of which accused nos.1 to 3 were to be convicted related to S. 304 Part I and S. 392 read with S. 34 IPC. They were sentenced to suffer rigorous imprisonment for a period of ten years each on the first count, and also to undergo seven years rigorous imprisonment for the second. Both the sentences were directed to run concurrently. While the accused persons filed appeals against their conviction and sentence before the High Court, State challenged the conviction for lesser offence, and also against the acquittal of the other two accused persons. As noted above, the High Court held accused persons to be guilty of offence punishable u/s. 302 IPC, and not u/s. 304 Part I. Accordingly, the State's appeal to that extent was allowed. But the acquittal of the other accused persons was upheld. Judgment of the High Court, as noted above, is the subject matter of challenge in these appeals.\n7. Learned counsel for the appellants submitted that the evidence on which the trial court has placed reliance does not inspire confidence. The accused persons were put to test identification parade after their arrest. PW 2, the driver did not participate in the first test identification parade and only after a month a second test identification parade was conducted when PW2 participated and identified the accused persons. According to the learned counsel delay in conducting the parade corroded prosecution version. Ultimately, it was submitted that looking into the circumstances, Trial Court came to the right conclusion that the accused were to be convicted u/s. 304 Part I IPC and not u/s. 302 IPC. The High Court should not have altered the conviction. Learned counsel for the appellant has submitted that the doctor PW8, who conducted the post-mortem has found injury no.10 in Ex.P/5 to be an abrasion on the left temple of the deceased and it is possible on account of fall on the rough surface. Similarly, internal injury no.2 corresponded to external injury no.10. From this the trial court had arrived at the conclusion that it was not possible to draw an inference about accused nos.1 to 3's intention to kill the deceased for robbing the cash.\n8. The learned counsel for the State submitted that the trial court has dealt with in detail as to why there was some delay in holding the test identification parades. It is to be noted that the accused persons were arrested after about 2 months of the date of occurrence. They were placed in police custody and thereafter under judicial custody. Immediately after the accused persons were arrested a motion was made to the concerned court for test identification parade and moment the court fixed the date, the test identification parade was conducted. As PW2 was not available on the first date, a second test identification parade was done. The High Court found no substance in the plea of the accused-appellants that the witnesses identified the accused persons as they were in jail prior to this identification parade. It was noted with reference to the evidence of concerned Metropolitan Magistrate who conducted the test identification parade that due formalities were observed before conducting test identification parades. It also held that the reason for delay has been duly explained.\n9. Coming to the applicability of S. 302 IPC, it is submitted that though the intention was to rob the deceased, when the deceased resisted, in order to achieve the intended object, he was indiscriminately stabbed till he succumbed to death and the cash and the drafts were snatched away. The High Court was justified in its conclusion about the applicability of S. 302 IPC.\n10. The High Court has duly considered the injuries highlighted by Trial Court and found the approach to be wrong. The respective stands need careful consideration.\n11. As was observed by this Court in Matru @ Girish Chandra v. The State of U.P. (AIR 1971 SC 1050 1971 Indlaw SC 275), identification tests do not constitute substantive evidence. They are primarily meant for purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. [See Santokh Singh v. Izhar Hussain and Anr. (AIR 1973 SC 2190 1973 Indlaw SC 112)]. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witness of the crime.\n12. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 (in short the 'Code') and the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond the control and there is some delay, it cannot be said to be fatal to the prosecution. In the instant case, the factual scenario noted by the trial court reveals that all possible efforts were made to have test identification parade immediately after the arrest of the accused persons. The accused persons were arrested on 25 May 1993 were in police custody from 09 June 1993. On 16 June 1993 requisition was given to the Magistrate to hold the identification and first test was held on 26 June 1993 by the Magistrate. As PW-2 was not available, on request of police second test was held. Merely because the second test identification parade was held that cannot be a suspicious circumstance as prosecution has explained as to why that was necessitated. In view of the credible and cogent evidence of the eye-witnesses we do not find any substance in the plea that the testimony of the witnesses suffered from any infirmity. The appellants have already been held to be the authors of the crime. The Trial Court analysed evidence of the eyewitnesses in great detail. They have graphically described the incident. Incisive cross-examination has not brought any doubt on the truthfulness of their statements. High Court in appeal has also dealt with the acceptability of the evidence and found it to be flawless.\n13. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in S. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of S. 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of S. 304. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Ss. 299 and 300, the following comparative table will be helpful in appreciating the points of distinction between the two offences.\n14. Cl. (b) of S. 299 corresponds with cls. (2) and (3) of S. 300. The distinguishing feature of the mens rea requisite u/cl. (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of cl. (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of cl. (2) is borne out by illustration (b) appended to S. 300.\n15. Cl. (b) of S. 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling u/cl. (2) of S. 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.\n16. In cl. (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding cl. (b) of Section 299, the words \"sufficient in the ordinary course of nature\" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between cl. (b) of S. 299 and cl. (3) of S. 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in cl. (b) of S. 299 conveys the sense of probable as distinguished from a mere possibility. The words \"bodily injury sufficient in the ordinary course of nature to cause death\" mean that death will be the \"most probable\" result of the injury, having regard to the ordinary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Ors. v. State of Kerala, AIR 1966 SC 1874 is an apt illustration of this point.\n17. In Virsa Singh v. State of Punjab, AIR 1958 SC 465 1958 Indlaw SC 82, Vivian Bose, J. speaking for the Court, explained the meaning and scope of cl. (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300, \"thirdly\". First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.\n18. The ingredients of clause \"Thirdly\" of Section 300, IPC were brought out by the illustrious Judge in his terse language as follows: \"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300, \"thirdly\".\n19. First, it must establish, quite objectively, that a bodily injury is present.\n20. Secondly, the nature of the injury must be proved. These are purely objective investigations.\n21. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.\n22. The learned Judge explained the third ingredient in the following words :-\n\"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here or there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.\"\n23. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh's case 1958 Indlaw SC 82 (supra) for the applicability of clause \"Thirdly\" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of S. 300 IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to S. 300 clearly brings out this point. Cl. (c) of S. 299 and cl. (4) of S. 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that cl. (4) of S. 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.\n24. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. The position was illuminatingly highlighted by the this Court in State of Andhra Pradesh v. Rayavarapu Punnayya (1976 (4) SCC 382 1976 Indlaw SC 192). In the case at hand, the evidence of the witnesses was that the three appellants had indiscriminately stabbed the deceased, though their object was to rob deceased. As established by evidence of eye-witnesses the accused persons expected resistance and all the three were armed with knives. It cannot be said that they expected no resistance even if they intended to rob a huge sum of money. The intended object was to get the money. When there was expected resistance by the deceased, they went on giving stabs with the knives till the deceased lost his life and thereafter the cash and the demand drafts were snatched. It is the intention prevailing at the time of assaults, which determines the applicability of the relevant provisions. One of the factors which appears to have weighed with the trial court, and on which the reliance was placed to alter conviction to S. 304 Part I was the finding that the two injuries which were stated by the doctor PW8 to be sufficient to cause the death were possible by fall. A reading of the post-mortem report indicates that several injuries were stated by the doctor to be the cause of death and the two injuries noticed by the trial court were not the only ones.\n25. In fact, injury no.5 i.e. stab injury was one of them. There were six stab wounds. The doctor stated injury Nos. 5, 7 and 11 and internal injuries 1 and 2 were sufficient to cause death in the normal course of nature. Much was made by the trial Court of the statement of PW-8 to the effect that cause of death could be stab wounds associated with head injury. It was, however, not noticed that the doctor clarified to the following effect: \"The Stab wounds as well as the head injury are individually sufficient to cause death\". The stab wounds came first and then the possible fall. Taking into account the totality of the circumstances the conviction recorded by the High court u/s. 302 IPC cannot be faulted.\nThe appeals deserve dismissal, which we direct.\nAppeals dismissed.\n"}
+{"id": "ln6Eoie0gV", "title": "", "text": "Pepsi Foods Limited and Another v Special Judicial Magistrate and Others\nSupreme Court of India\n\n4 November 1997\nCr.A. No. 1019 of 1997\nThe Judgment was delivered by : D. P. Wadhwa, J.\n1.  Leave granted.\n2.  The appellants are aggrieved by the judgment dated September 23, 1996 of the Division Bench of the High Court of Judicature at Allahabad (Lucknow Bench) dismissing their writ petition filed u/arts. 226 and 227 of the Constitution. The appellants sought quashing of the compliant filed against them u/s. 7 read with S. 16 of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). The prayers in the writ petition were worded as under:\n\"(a) issue a writ of prohibition or a writ, order or direction in the nature of prohibition, prohibiting the Opposite Party Number-1 to proceed with case No.699 of 1994 (Anurag Narain vs. Nitin Sachdeva and others);\n(b) issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the proceedings in Case no. 699 of 1994 together with the consequential order dated 9.5.1994 and the complaint dated 6.5.1993 in so far as it pertains to the petitioners;\n(c) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the Opposite Party Number-1 not to proceed with the Case No.699 or 1994 during the pendency of the aforesaid writ petition;\n(d) issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case may also be passed; and\n(e) to allow the writ petition with costs\".\n3.  There are two appellants, second appellant is the Managing Director of first appellant, The respondents are three. First respondent is the court where the appellants alongwith others have been summoned for having committed offences under Sections 7/16 of the Act. The second respondent is the complainant and the third respondent is the State of Uttar Pradesh.\n4.  The allegation in the complaint is that complainant was sold a bottle of beverage under the brand \"Lehar Pepsi\" which was adulterated. The bottle was purchased by the complainant on September 13, 1993. He filed the complaint on May 6, 1994. After recording preliminary evidence the Magistrate passed orders summoning the appellants and others on May 9, 1994. It appears that when the summons reached the appellants they immediately approached the High Court seeking aforesaid reliefs. The High Court, however, refused to entertain the writ petition on the ground that the appellants should approach the 1st respondent for their discharge u/s. 245 of the Code of Criminal Procedure (for short 'the Code'), if the complaint did not disclose commission of any offence by the appellants and the Court considered the charge to be groundless. The High Court did not approve of the appellants approaching it under writ jurisdiction when sufficient remedy was available under the Code.\n5. The High Court was also of the opinion that it could not be said at that stage that the allegations in the complaint were so absurd and inherently improbable on the basis of which no prudent man could ever reach a just conclusion that there existed no sufficient ground for proceedings against the accused. On the plea of the appellants that the provisions of S. 13(2) of the Act read with Rule 9-A of the Rules framed under the Act were violated and on that account the inquiry or trial stood vitiated the High Court said that the appellants could well approach the court for that purpose and that it was no stage for the High Court to record its finding. yet another plea of the appellants that provisions of S. 203 and 245 (2) of the Code did not provide an adequate remedy for a person charged on flimsy grounds and that in view of the decision of this Court in State of Haryana vs. Chaudhary Bhajan Lal and others (JT 1990 (4) S.C. 650 [(1992) supp. 1 SCC 335 1990 Indlaw SC 91] . the court should interfere also did not find favour with the High Court. It was of the opinion that Chaudhary Bhajan Lal's case pertained to a cognizable offence where police had taken cognizance of the matter and in a complaint case the Magistrate was empowered to discharge the accused at any stage of the trial if it was found that the charge was groundless.\n6.  There are as many as 12 accused in the complaint. If we refer to the order summoning them on the basis of the allegations made in the complaint and evidence available on record it appeared to the 1st respondent, the Magistrate, that all the 12 accused had committed offence punishable under Sections 7/16 of the Act and they were therefore summoned to appear before the court to stand their trial. before we advert to the allegations made in the complaint and the preliminary evidence brought on record which led to the first respondent to summon the accused, we may briefly refer to the provisions of law as contained in the Act and the Code.\n7. U/s. 7 of the Act, in relevant part, no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food. U/cl. (ia) of S. 2 of the Act which defines 'adulterated\" an article of food shall be deemed to be adulterated-\n(a) if he sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;\n(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;\n(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;\n(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;\n(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;\n(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or, vegetable substance or is insect-infested or is otherwise unfit for human consumption;\n8.  Under clause (viiib) \"manufacture\" includes any process incidental or ancillary to the manufacture of an article of food. \"Food\" is also defined to mean any article used as food or drink for human consumption (S. 2 (v). S. 16 of the Act prescribes penalties for contravention of the provisions of the Act. The sentence can vary from minimum imprisonment of three to six months to two or three years and imposition of prescribed amount of fine.\n9.  If we look at the Act and the Rules the primary duty for enforcement of the provisions of the Act is on the Food Inspector and Public Analyst appointed under the Act. Powers of Food Inspector and procedure to be followed by him are prescribed. U/s. 20 of the Act no prosecution for an offence under Act except for offences u/s. 14 and 14A shall be instituted except with the written consent of the Central Government or the State Government or a person authorised in that behalf by general or special order, by the central Government or the State Government. However, there is proviso to the section under which a purchaser can also file a complaint and this reads as under:\n\"Provided that a prosecution for an offence under this Act may be instituted by a purchaser [or recognised consumer association] referred to in Section 12, if he [or it] produces in court a copy of the report of the public analyst along with the complaint.\" U/s. 12 of the Act a purchaser may also have food analysed. This Section reads as under:\n\"12. Purchaser may have food analysed. Nothing contained in this act shall be held to prevent a purchaser f any article of food other than a food inspector or a recognised consumer association, whether the purchaser is a member of that association or not, from having such article analysed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis; Provided that such purchaser or recognised consumer association shall inform the vendor at the time of purchase of his or its intention to have such article so analysed; provided further that the provisions of sub-section (1), sub s. (2) and sub-s. (3) of S. 11 shall, as far as may be, apply to a purchaser of article of food or recognised consumer association who or which intends to have such article so analysed, as they apply to a food inspector who takes a sample of food for analysis; Provided also that if the report of the public analyst shows that the article of food is adulterated, the purchaser or recognised consumer association shall be entitled to get refund of the fees paid by him or it under this section.\"\n10.  In S. 12 we find reference of S. 11 which is reproduced as under:-\n\"11. Procedure to be followed by food inspectors, 91) When a food inspector takes a sample of food for analysis, he shall\n(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14-A;\n(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thump impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed; Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or the signatures or thumb-impressions, as the case may be, in lieu of the signature or thumb-impression of such person;\n(c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and (ii) send the remaining two parts to the Local (Health) Authority for the purposes of sub-s. (2) of this Section and sub-section (2-A) and (2-F) of S. 13. (2) Where the part of the sample sent to the public analyst under sub-cl. (i) of cl. (c) of sub-s. (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the food inspector despatch one of the parts of the sample sent to it under sub cl. (ii) of the said cl. (c) to the public analyst for analysis. (3) When a sample of any article of food [or adulterant] is taken under sub-s. (1) or sub-s. (2) of Section 10, [the food inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be], in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.\"\n11. S. 13 deals with the report of the public analyst. It provides, among other things, that a public analyst shall deliver, in such form as may be prescribed, a report of the result of the analysis of any article of food submitted to him for analysis. Any document purporting to be a report signed by a public analyst, subject to certain inspections, may be used as evidence of the facts therein in any proceeding under the Act (S. 13 (5)). Since no argument was addressed before us on the violation of S. 13(2) read with Rule 9-A we do not think it necessary either to set out or to refer to the same the Code provides the procedure as to how a complaint can be filed and how the court will proceed in the matter. (The word 'court' and 'magistrate' are synonymous here) Since for an offence under the Act imprisonment for a term exceeds two years it would be a case tried as warrant-case. One of the modes by which a court can take cognizance of an offence is on filing of a complaint containing facts which constitutes such offence. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witness, and also by the Magistrate (Ss. 190 and 200 of the Code). If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a warrant case, he may issue a warrant, or, of he thinks fit, summons for causing the accused to be brought or to appear before him on a date fixed by him (Subs. (1) of S. 204). Whenever a Magistrate issues a summon, he may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader (sub-s. (1) of S. 205).\n12. In the present case though it was a warrant case the first respondent issued summons but he did not dispense with personal attendance of the accused. Chapter XIX-B of the Code provides for trial of warrant cases instituted on a complaint. We may noted Ss. 244 and 245 falling under this Chapter:\n\"244. Evidence for prosecution.-\n(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.\n(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 245. When accused shall be discharged.-\n(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.\n(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless\".\n13. U/art. 227 of the Constitution of India High Court has power of superintendence over courts. Cl. (1) provides that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. High Court has power to issue certain writs, orders and directions u/art. 226 of the Constitution. Cl. (1) of Article 226, which is relevant, is as under:\n\"(1) Notwithstanding anything in art. 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo warrant to and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purposes.]\"\n14.  Having set out the relevant provisions of law to some extent and before we consider the merits and demerits of the case and the jurisdiction of the High Court u/art. 226 and 227 of the Constitution, we may refer to the complaint and the evidence which led the 1st respondent to issue summons to the appellants and others for an offence u/s. 7 of the Act.\n15.  The complainant (second respondent) is a student. He says that he is appearing in examinations is various State and Central Services. On September 13, 1993, he went to a shop known as \"The Flavours Fast Food and Cool Corner\" and purchased 500 m1. chilled bottle of 'Lehar Pepsi' for drinking. Nitin Sachdeva is stated to have (Accused named as No.1) sold the bottle to the complainant. After he had consumed the beverage contained in the bottle, the complainant felt a strange taste. On observation, he found that the bottle contained many white particles. The complainant felt giddy and nauseated. One Divya Trivedi was present at the shop as a customer. Another shopkeeper by the name Lal Bahadur Singh who owned a shop opposite to from where the complainant purchased the 'Lehar Pepsi' bottle was also present. They were shown the bottle by the complainant. The beverage was put in two glasses to see the while particles clearly and Nitin Sachdeva accepted the presence of the particles. Suspecting adulteration, the complainant told Nitin Sachdeva that he would take sample of the beverage for analysis. He thereupon gave notice to Nitin Sachdeva, purchased three clean and dry empty new plastic jars from hereby Suri Stores and filled up the same with the beverage and which, according to the complainant, were sealed as per rules, wrapped in the paper and tied with thick yearn. Nitin Sachdeva signed the jars and put stamp of his shop thereon. The complainant obtained the stamp of the shop \"The Flavour Fast Food and Cool Corner\" on a separate paper and one jar of the sample with stamp used in the sample was deposited by the complainant in he office of the State Public Analyst, Uttar Pradesh, Lucknow on September 20, 1993 for analysis. The complainant says that the three jars were sealed in the presence of the witnesses and he also recorded their statements in writing including that of Nitin Sachdeva. The complainant also made a report to the Police on September 13, 1993 itself about the incident.\n16.  The complainant then started making enquiries. Crown cap of the bottle had the words \"Residency Foods and Beverages, Sataria, Jaunpur\" printed. Nitin Sachdeva told the complainant with the bottle was supplied by the distributor \"A.Kumar & Company\", Lucknow whose proprietor was A.K. Jain (Accused No.2 and 3). The complainant was also told that A.K. Jain was the person responsible for conduct of the day-to-day business of A.K. Kumar and Company. Nitin Sachdeva also informed the complainant that marketing of Lehar Pepsi was done by \"Taj Service Ltd.\" Lucknow (Accused No.4). From A.K Jain, the complainant learnt that Anil Nigam (Accused No.5) was the person responsible for the conduct of business of Taj Services Ltd. Yet, on further enquiry, the complainant learnt that bottling of Lehar Pepsi was done by Residency Foods and Beverages Ltd., Jaunpur (Accused No.6) and mr. N.K. Hariharan (Accused No.7) was the manager and person responsible for the conduct of day-to-day business of the said company and Mark Yadav (Accused No.8) was the Distribution Manager of that Company. V.S. Gurmany has been pleaded as Accused No.9 being the Director of Residency Foods and Beverages Ltd. The complainant then states that \"upon enquiry and information from A.K. Jain, it was learnt that the manufacturer of the bottle of sample is \"Pepsi Foods Ltd.\", New Delhi (Accused No.10) and its incharge and the person responsible for conduct of business is Ravi Dhariwal, Executive Director (Accused No.11) and P.M. Sinha (Accused No.12) its Managing Director. The complainant then says that he personally contacted Ravi Dhariwal on December 4, 1993 who asked Subrat Padhi, Field Manager to look into the grievance of the complainant but no action was taken. The State Public Analyst, Lucknow gave his report on October 29, 1993 and expressed his opinion that due to the presence of fungus in the sample, the sample was adulterated. The complainant says that out of the two jars of the sample, he had deposited one jar with Nitin Sachdeva and other one was in his possession. The complainant then says that he was taken serious ill and could recover only after two months. That is all the complaint is about. On the basis of the allegations, the complainant alleges that Accused Nos. 1 to 12, by selling, distributing, manufacturing and marketing adulterated ad harmful for health 'Lehar Pepsi, have committed an offence u/s. 7(1) of the Act which is punishable u/s. 16(1A) of the Act. With the complaint report of the Public Analyst was filed.\n17.  In the order dated May 9, 1994, summoning the accused, the 1st respondent very breifly records the averments made in the complaint and then notes as under:\n\"In support of the complaint allegations, the Complainant has recorded his statement and presented the statement on oath of the witness Lal Bahadur Singh and as documentary evidence notice annexure-1, receipt for deposit of the bottle of sample for analysis with Public Analyst annexure-3A and application to the Public Analyst for analysis annexure-3B, report of the incident with O.S. Ghazipur annexure-4, cash memo issued by the vendor annexure-5, statement of Executive Director of Pepsi Foods Ltd. annexure-6, report of the Public Analyst annexures 7A and 7B and prescriptions of the doctor for treatment have been filed.\"\n18.  Then the first respondent records that on the basis of the evidence available on record, prima facie, it appeared that the complainant got the sample sealed and analysed in accordance with the procedure prescribed which sample was found to be adulterated. He, therefore, ordered that \"based on the evidence available on record, I, prima facie, find that the accused Nos.1 to 12 have committed offence under Section 7/16 of the Prevention of Food and Adulteration Act. Accordingly, accused Nos. 1 to 12 are directed to appear before Court on 23.05.1994 through summons.\"\n19.  When the summons were served on the appellants, they approached the High Court seeking reliefs as aforementioned bu the High Court declined to interfere.\n20.  The questions which arise for consideration are if in the circumstances of the case, the appellants rightly approached the High Court u/arts. 226 and 227 of the Constitution and if so, was the High Court justified in refusing to grant any relief to the appellants because of the view which it tool of the law and the facts of the case. We have, thus, to examine the power of the High Court u/arts. 226 and 227 of the Constitution and s. 482 of the Code.\n21.  It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335 1990 Indlaw SC 91, this court examined the extraordinary power u/art. 226 of the Constitution and also the inherent powers u/s. 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.\n22. U/art. 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court u/arts. 226 and 227 of the Constitution and u/s. 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be u/art. 227 or S. 482 of the Code it may not always be necessary to invoke the provisions of Art. 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court u/arts. 226 and 227 may be referred to.\n23.  In Waryam Singh and another vs. Amarnath and another [AIR 1954 SC 215 = 1954 SCR 565 1954 Indlaw SC 180]. this Court considered the scope of Art. 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. vs. Sukumar Mukherjee [AIR 1951 Cal 193 1950 Indlaw CAL 142 (SB)] where the High Court said that the power of superintendence conferred by Art. 227 was to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.\n24.  In Babhutmal Raichand Oswal vs. Laxmibai R. Tarte and another AIR 1975 SC 1297 = (1975) 1 SCC 858 1975 Indlaw SC 594.  this Court again reaffirmed that the power of superintendence of High Court u/art. 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordiante court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction u/art. 227 could not be exercised, \"as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings.\" The Court referred with approval the dictum of Morris, L.J. in Rex vs. Northumberland Compensation Appeal Tribunal.\n25.  In Nagendra Nath Bora vs. The Commissioner of Hills Division [1958 SCR 1240 1958 Indlaw SC 62].  This Court observed as under:\n\"It is thus, clear that the powers of judicial interference under Art.227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the power under Art of the Constitution, Under Art the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.\"\n26.  Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court find that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one u/art. 227 or S. 482 of the Cod. it ay not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief S. 482 of the Code or Art. 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one u/arts. 226 and 227 could well be treated u/art. 227 of the Constitution.\n27.  We have not been able to understand as to why it was necessary for the appellants to implead the first respondent as a party to the proceedings. There are no allegations of personal bias against the presiding officer. A court is not to be equated with a tribunal exercising quasi judicial powers. We would, therefore, strike out the name of the 1st respondent from the arrary of the parties.\n28.  Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.\n29.  No doubt the magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court u/s. 482 of the Code or Art. 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. it was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants, If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that \"in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused.\" We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the magistrate as well, as the magistrate will not give any different conclusion on an application filed u/s. 245 of the Code.\n30. The High Court says that the appellants could very well appear before the court and move an application u/s. 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. if we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence u/s. 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to \"Residency Foods and Beverages Ltd.\" for bottling the beverage \"Lehar Pepsi\". The complaint does not shoe what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No.3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both.\n31. There is another aspect of the matter. The Central Government in the exercise of their powers u/s. 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the \"Fruit Order\"), It is not disputed that the beverage in the question is a \"fruit product\" within the meaning of cl. (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, making and labeling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacture to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle [cl. (8)(1)(b)].\n32.  Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (WAKF) Delhi & Anr. vs. The Union of India & Ors. [AIR 1965 SC 1167 = (1965) 2 SCR 192 1964 Indlaw SC 370], an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the  Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.\n33.  It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application u/s. 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against the. it is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Arts. 226 and 227 of the Constitution and S. 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it.\n34.  We, therefore, allow this appeal, set aside the order of the High Court and quash the complaint and proceeding against the appellants.\nAppeal allowed.\n"}
+{"id": "zNmREpOaUV", "title": "", "text": "K. Ramakrishna and Others v State of Bihar and Another\nSupreme Court of India\n\n22 September 2000\nAppeal (crl.) 89 of 1999\nThe Judgment was delivered by : R. P. Sethi, J.\n1. The appellants, who are senior officers of the United Bank of India, have been arraigned as accused persons in the charge-sheet submitted by the CBI in the Court of Judicial Magistrate, First Class, Patna, for the offences punishable under Sections 467, 468, 420 and 120B IPC. They filed a petition under Section 239 of the Code of Criminal Procedure praying for being discharged as, according to them, no case was disclosed either in the FIR or in the documents accompanying the final report submitted under Section 173 of the Code of Criminal Procedure. The Magistrate, vide his order dated 6 July 1996, rejected the application and directed the presence of the appellants in the court for framing of charges. Feeling aggrieved the appellants moved the High Court under Section 482 of the Code of Criminal Procedure with prayer for quashing the order of the Magistrate. Their prayer was rejected vide the order impugned, hence this appeal.\n2. Mr. Altaf Ahmad, the learned Additional Solicitor General, appearing for the appellants submitted that the averments made in the FIR do not make out any case against his clients, inasmuch as none of them have even been named therein. He further submitted that without disputing the validity of the allegations made in the FIR and the accompanying documents, including the statements of witnesses recorded under Section 161 of the Criminal Procedure Code, no case is made out against anyone of the appellant under any penal law. Learned counsel appearing for the respondents has, however, submitted that the Judicial Magistrate has taken note of the case diaries and other record produced before him and found on facts, that as the appellants were posted on different administrative and responsible posts in the Bank at the time of occurrence which took place during their tenure, to their direct or indirect knowledge and in that commission, the possibility of their involvement in criminal conspiracy could not be ruled out. He has also drawn our attention towards paras 48, 63, 64, 71, 79, 82, 83, 84, 86, 110 and 112 of the case diaries to impress upon that there existed evidence against the appellants which justified the passing of the impugned orders. It is contended that this Court cannot re-evaluate the evidence at this stage for the purposes of prima-facie finding out as to whether the appellants had committed the offences with which they are directed to be charged.\n3. The inherent powers of the High Court under Section 482 of the Code of Criminal Procedure can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of process of any court or otherwise to secure the ends of justice. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. However, there may be cases where the inherent jurisdiction to quash proceedings can and should be exercised. Where there is a legal bar against the institution or continuance of the criminal proceedings in respect of the alleged offence, the High Court should not be reluctant to exercise the inherent jurisdiction. Similarly where the allegations in the FIR or the complaint, even if they are taken at their face value do not constitute the offence alleged, or without appreciating the evidence but only merely by looking at the complaint or the FIR or the accompanying documents, the offence alleged is not disclosed, the person proceeded against in such a frivolous criminal litigation has to be saved.\n4. The Trial Court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an enquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi & Ors. [1999 (3) SCC 259], 1999 Indlaw SC 447 the High Court or the Magistrate are also not supposed to adopt a strict hyper-technical approach to sieve the complaint through a cullendar of finest gauzes for testing the ingredients of offence with which the accused is charged. Such an endeavour may be justified during trial but not during the initial stage.\n5. In view of the legal position, as noticed above, it has to be seen whether the FIR or the documents accompanying the final report under Section 173 of the Criminal Procedure Code including the statements recorded by the prosecution under Section 161 of the Code of Criminal Procedure, discloses the commission of any offence against the appellants. The charge-sheet (Annexure B) filed does not refer to any withness or circumstance which the prosecution intends to use against the appellants. From the record it appears that for irregularities in the affairs of the Branch of the Bank, various complaints were lodged with the local police and the CBI against one Abhay Kant Jha in the years 1983, 1985 and 1987. In its report submitted on 30th November, 1987, the CBI recommended prosecution of said Shri Abhay Kant Jha along with Shri Sanjay Kumar Roy, respondent No.2 herein. To counter blast and ward off his involvement, the said Shri Sanjay Kumar Roy filed a complaint in the year 1987 with the Gandhi Maidan Police Station, Patna making accusations only against said Shri Abhay Kant Jha. However, while narrating the facts therein, he submitted that some of the appellants had approached him and his father for amicable payments of the bank's dues. It may be noticed that the CBI, after detailed investigations, addressed a confidential report to the bank recommending prosecution of Shri Abhay Kant Jha and 8 other persons including the aforesaid Sanjay Kumar Roy. None of the appellants was found to be, in any way, connected with the commission of the offences alleged in the complaint. As noticed earlier, the Trial Court on perusal of some paras in the case diary found that there existed evidence by which the appellants could be connected with the commission of the crime with which they were charged. We have perused all those paras and other parts of the case diary and find that the Trial Magistrate was not justified in his observations so far as the appellants are concerned. In paragraph 48 of the case diary the investigation officer has mentioned the fact of his visiting the branch office of the United Bank of India on 29. November 1987 at 11 a.m. where despite notice, the officers of the bank were not present. Thereafter he served notice upon the Assistant Manager asking him to cause the presence of all the officers in the police station on 15 December 1987. A fact is mentioned about the presence of the officers of the bank at the police station. In the statement of appellant No.1 is stated to have been recorded. It is recorded, \"diary should be perused because documents of United Bank has not been received and proceedings is being initiated for finding it\". It is mentioned that on number of occasions person was sent to the United bank, Bokaro for getting the papers of the case but papers were not received. A mention is made of \"documents or papers have been received about which the proceedings should be initiated after the discussion with the ASP City\". It mentions the compliance of order of ASP City. It records that the documents received were shown to S/Shri Balakrishna Rai and Ram Kishore Rai who after seeing the papers and documents told that they do not bear the signature of Shri Sanjay Kumar Roy. It is recorded that IO reached the office of the bank at Bokaro and searched Shri Ram Deo Yadav, Branch Manager but what was recovered upon search is not noticed. In paragraphs 112-113, the IO has recorded \"I proceeded from Dhanbad in connection with the investigation of other case\". On perusal of the other paragraphs of the case diaries we noticed not an iota of evidence against any appellants. We are conscious of the fact that in the normal circumstances, this Court or the High Court while deciding the sufficiency of the evidence would not resort to the perusal of the case diary and sit in appeal over the judgment of the investigating officer but as the Trial Magistrate is apparently shown to have recorded wrongly with respect to the facts allegedly noticed in the case diary, this Court vide order dated 17 July 1998 had no option but to direct the counsel of the respondent-State to produce the documents referred to in the report filed under Section 173 of the Code of Criminal Procedure. On perusal of FIR, the final report under Section 173 of the Code of Criminal Procedure and all other documents accompanying it, we are satisfied that no case is made out against any of the appellants and the pendency of the proceedings against them before the Magistrate is an abuse of process of court. The appeal is allowed and the order of the High Court dated 08 April, 1997 and Magistrate dated 06 July 1996 are quashed and the appellants discharged in terms of Section 239 of the Code of Criminal Procedure.\n"}
+{"id": "W1GC7dDyQE", "title": "", "text": "Rajesh Bajaj v State Nct of Delhi and Others\nSupreme Court of India\n\n12 March 1999\nCriminal Appeal No. 295 of 1999\nThe Judgment was delivered by : K. T. Thomas, J.\nLeave granted.\n1.  Appellant lodged an FIR with the police for the offence under Section 420, Indian Penal Code. A Division Bench of the Delhi High Court quashed the FIR on the premise that the complaint did not disclose the offence. The Division Bench reminded them that jurisdiction under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure should be exercised sparingly and with circumspection for quashing criminal proceedings. Nevertheless, learned judges found that the case on hand could not pass the test laid down by this Court in State of Haryana vs. Bhajan Lal [1992 Suppl.(1) SCC 335]. 1990 Indlaw SC 91 The appellant is obviously aggrieved by the aforesaid course of action adopted by the High Court and hence he filed the special leave petition. In the complaint filed by the appellant before the police, on the strength of whom the FIR was prepared, the following averments, inter alia, were made. Appellant belongs to a company (M/s Passion Apparel Private Limited) which manufactures and exports readymade garments. On 15.11.1994 fifth respondent (Gagan Kishore Srivastava) Managing Director of M/s Avren Junge Mode Gumbh Haus Der Model approached the complainant for purchase of Readymade garments of various kinds and induced the appellant to believe that 5th respondent would pay the price of the said goods on receiving the invoice. Such payment was promised to be made within fifteen days from the date of invoice of the goods which complainant would despatch to Germany. Appellant believed the aforesaid representation as true and on that belief he despatched goods worth 4, 46,597.25 D.M. (Deutsch Marks). In March/April 1995 respondent on receipt of 37 different invoices got the goods released and sold them to others. But the respondent paid only a sum of 1, 15,194 D.M. Appellant further alleged in the complaint that respondent induced him to believe that he is a genuine dealer, but actually his intentions were not clear.\n2.  Appellant also mentioned in the complaint that one of the representatives of appellants company went to Germany in October 1995 for realising the amount on the strength of an understanding reached between them that respondent would pay 2,00,000 D.M. in lieu of the remaining part of the price. However, the respondent did not honour even that subsequent understanding.\n3.  Appellant further mentioned in the complaint that he came to know later about the modus operandi which respondent adopted in regard to certain other manufacturers who too were duped by the respondent to the tune of rupees ten crores. Learned Judges of the High Court have put forward three premises for quashing the FIR. First is that the complaint did not disclose commission of any offence of cheating punishable under Section 420 of the Indian Penal Code. Second is that there is nothing in the complaint to suggest that the petitioner had dishonest or fraudulent intention at the time the respondent exported goods worth 4, 46,597.25 D.M.by 37 different invoices. There is also nothing to indicate that the respondent, by deceiving the complainant, induced him to export goods worth4, 48,597.25 D.M. The third is that on the face of the allegations contained in the complaint it is purely a commercial transaction which in a nut-shell is that the seller did not pay the balance amount of the goods received by him as per his assurance.\n4.  After quoting Section 415 of IPC learned judges proceeded to consider the main elements of the offence in the following lines:\n\"A bare reading of the definition of cheating would suggest that there are two elements thereof, namely, deception and dishonest intention to do or omit to do something. In order to bring a case within the first part of Section 415, it is essential, in the first place, that the person, who delivers the property should have been deceived before he makes the delivery; and in the second place that he should have been induced to do so fraudulently or dishonestly. Where property is fraudulently or dishonestly obtained, Section 415 would bring the said act within the ambit of cheating provided the property is to be obtained by deception.\"\n5.  It was thereafter that the High Court scanned the complaint and found out that there is nothing in the complaint to suggest that the accused had dishonest or fraudulent intention at the time of export of goods.\n6.  It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana vs. Bhajan Lal 1990 Indlaw SC 91 (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder:\n\"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.\"\n7.  It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, manya cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code (illustrations f) is worthy of notice now:\n\"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.\"\n8.  The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.\n9.  The High Court seems to have adopted a strictly hyper-technical approach and sieved the complaint through a cullendar of finest gauzes for testing the ingredients under Section 415, IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simplicitor wherein no semblance of criminal offence is involved.\n10.  The appellant is, therefore, right in contending that the FIR should not have been quashed in this case and the investigation should have been allowed to proceed.\nWe, therefore, allow this appeal and set aside the impugned order.\nAppeal allowed\n"}
+{"id": "LojIIf94Ch", "title": "", "text": "Indian Oil Corporation v NEPC India Limited and Others\nSupreme Court of India\n\n20 July 2006\nCr.A. No 834 of 2002\nThe Judgment was delivered by: R. V. Raveendran, J.\n1.  These appeals are filed against the common order dated 29.3.2001 passed by the Madras High Court allowing Crl.O.P. Nos.2418 of 1999 and 1563 of 2000. The said two petitions were filed by the respondents herein u/s. 482 of Criminal Procedure Code ('Code' for short) for quashing the complaints filed by the appellant against them in C.C. No.299 of 1999 on the file of Judicial Magistrate No.6, Coimbatore and C.C. No. 286 of 1998 on the file of Judicial Magistrate, Alandur (Chennai).\n2.  The appellant (Indian Oil Corporation, for short 'IOC') entered into two contracts, one with the first respondent (NEPC India Ltd.) and the other with its sister company Skyline NEPC Limited ('Skyline' for short) agreeing to supply to them aviation turbine fuel and aviation lubricants (together referred to as \"aircraft fuel\"). According to the appellant, in respect of the aircraft fuel supplied under the said contracts, the first respondent became due in a sum of Rs.5,28,23,501.90 and Skyline became due in a sum of Rs.13,12,76,421.25 as on 29.4.1997.\n3.  The first respondent hypothecated its two Fokker F27-500 Aircrafts, bearing Registration No. VT-NEJ (12684) and VT-NEK (10687) to the appellant under Deed of Hypothecation dated 1.5.1997, to secure the outstanding amounts. Cl. (2) of the said Deed provided that the two aircrafts with all parts and accessories stood hypothecated to IOC by way of charge and as security for payment of the amounts due, with effect from the date of hypothecation. Cl. (3) read with the schedule set out the instalments schedule for payment of the amount due.\n4. Under clause (6), NEPC India declared that it would not assign, sell, pledge, charge, underlet or otherwise encumber or part with the possession, custody or beneficial interest in respect of the two aircrafts without the previous written consent of IOC. It also undertook not to do any act which may diminish the value of the hypothecated property without clearing the entire outstanding amount. Cl. (9) provided that if NEPC India failed to pay any of the installments with interest within the stipulated time,or if any undertaking or assurance given by NEPC India was found to be false, IOC shall have the \"right to take possession of the hypothecated property\" and sell the same by public auction or by private contract and appropriate the sale proceeds towards the outstanding dues without recourse to court of law. Cl. 12 confirmed that NEPC India had handed over the title deeds relating to the aircraft to IOC, and agreed to receive them back only after paying the amounts due. It is stated that Skyline also hypothecated its aircraft (VT-ECP) under a separate Hypothecation Deed dated 14.5.1997. It is further stated that a tripartite agreement dated 6.5.1997 was entered among IOC, NEPC India and Skyline setting out the mode of payment of the dues and recovery in the event of default.\n5.  As NEPC India failed to pay the first two installments as per schedule, IOC stopped supply of aircraft fuel on 3.6.1997. However, subsequently, under a fresh agreement dated 20.9.1997, a revised payment schedule was agreed and IOC agreed to re-commence supply of aircraft fuel on 'cash and carry' basis. Even this arrangement came to an end as the installments were not paid.\n6.  Apprehending that NEPC India may remove the hypothecated aircraft (VT-NEJ) from Coimbatore Airport to a place outside its reach, IOC filed C.S. No.425 of 1997 in the Madras High Court seeking a mandatory injunction to the Airport Authority of India and Director General of Civil Aviation to detain the said aircraft stationed at Coimbatore Airport, u/s. 8 of the Aircraft Act, 1934, so as to enable it to take possession thereof.\n7. The High Court granted an interim injunction on 16.9.1997 restraining NEPC India from removing the aircraft (VT-NEJ) from Coimbatore Airport. In regard to the other hypothecated aircraft (VT-NEK) kept at Meenambakkam (Chennai) Airport, IOC filed a suit (OS No.3327/1998) in the City Civil Court, Chennai for a similar mandatory injunction.\n8.  IOC filed the two complaints against NEPC India and its two Directors (respondents 2 & 3 herein) in July, 1998 u/s. 200 of Code of Criminal Procedure alleging unauthorized removal of the engines and certain other parts from the two hypothecated aircraft. They are:\n\"(i) C.C. No. 299 of 1999 before the Judicial Magistrate No.6, Coimbatore, regarding Aircraft bearing No. VT-NEJ.\n(ii) C.C. No. 286 of 1998 before the Judicial Magistrate, Alandur (Chennai) regarding aircraft bearing No. VT NEK.\"\n9.  The relevant averments in the complaint in C.C. No.299/1999 (Coimbatore Court) reads as under:\n\"The complainant states that on 24.4.98, IOC had come to know that NEPC India Limited in total disregard to the orders of the Hon. High Court, Madras had clandestinely removed both the engines and certain other parts from the Aircraft VT-NEJ Aircraft Sl.No. 10684 (Fokker F27-500) stationed at the Coimbatore Airport, Coimbatore.\nThe complainant states that, besides the above, the act of NEPC India Limited in removing the engines and certain other parts from the Aircraft VT-NEJ Aircraft Sl. No. 10684 (Fokker F27- 500) stationed at the Coimbatore Airport, Coimbatore is against the terms of the hypothecation deed dated 01.5.1997 and 20.9.1997 will amount to theft, criminal breach of trust, and cheating which are offences punishable u/s. 378 (Theft), 403 (Dishonest Misappropriation of Property), 405 (Criminal Breach of Trust), 415 (Cheating), 425 (Mischief) of the Indian Penal Code. No notice was given to IOC in this regard.\"\n10.  The relevant averments in the complaint in C.C. No.286/1998 (Alandur Court) read as under :-\n\" With a view to defeat the said right of IOC (that is right to take possession and sell the aircraft), NEPC India removed the engines of the Aircraft (VT-NEK) stationed at the Meenambakkam Airport\nThe complainant states that, the act of NEPC India Limited in removing the engines and certain other parts from the Aircraft VT-NEK Aircraft Sl. No. 10687 (Fokker F27-500) stationed at the Meenabakkam Airport, Chennai is against the terms of the hypothecation deed dated 1.5.1997 as well as the terms of the agreement dated 20.9.1997 and will amount to offences punishable u/s. 378 (Theft), 403(Dishonest Misappropriation of Property), 405 (Criminal Breach of Trust), 415 (Cheating), 425 (Mischief) of the India Penal Code. No notice was given to IOC in this regard.\"\nBoth the complaints also contain the following common allegations:\n\"The complainant states that the accused had with fraudulent intention to cheat and defraud IOC had induced IOC to resume supply of Aircraft fuel on Cash and Carry basis, by undertaking to clear the outstanding amount of Rs.18 crores approximately within the time stipulated in the hypothecation agreements. However, the accused had failed to clear the said outstanding amounts and had breached the terms of the hypothecation agreements. Subsequently on 20.9.2007, an agreement was entered into between IOC and M/s NEPC India Limited.\nAs per the terms of the above agreement M/s NEPC India Limited had agreed to clear the outstanding amount of Rs.18 crores approximately due to IOC from M/s NEPC India Limited and M/s Skyline NEPC Limited within a time frame. However, M/s NEPC India Limited had failed to keep up the schedule of payments mentioned in the said agreements.\nThe facts narrated above will clearly show that IOC has got every right to take possession of the Aircraft VT-NEK as well as VT-NEJ. Only with a view to defeat the said right of IOC, M/s NEPC India has removed the engines of the aircraft. ..\"\n11.  The respondents herein filed Crl. O.P. No.1563 of 2000 and Crl.O.P. No.2418 of 1999 respectively u/s. 482 of Cr.P.C. for quashing the said two complaints on the following two grounds:\n(i) The complaints related to purely contractual disputes of a civil nature in respect of which IOC had already sought injunctive reliefs and money decrees.\n(ii) Even if all the allegations in the complaints were taken as true, they did not constitute any criminal offence as defined under sections 378, 403, 405, 415 or 425 IPC.\n12.  The High Court by common judgment dated 23.3.2001 allowed both the petitions and quashed the two complaints. It accepted the second ground urged by the Respondents herein, but rejected the first ground. The said order of the High Court is under challenge in these appeals. On the rival contentions urged, the following points arise for consideration :\n(i) Whether existence or availment of civil remedy in respect of disputes arising from breach of contract, bars remedy under criminal law?\n(ii) Whether the allegations in the complaint, if accepted on face value, constitute any offence under sections 378, 403, 405, 415 or 425 IPC ?\nRe : Point No. (i) :\n13.  The principles relating to exercise of jurisdiction u/s. 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], 1988 Indlaw SC 599 State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], 1995 Indlaw SC 1896 Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], 1996 Indlaw SC 2982 State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], 1996 Indlaw SC 4034 Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], 1999 Indlaw SC 447 Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], 2000 Indlaw SC 666 Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], 2000 Indlaw SC 248 M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], 2001 Indlaw SC 21143 and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. 2004 Indlaw SC 899 The principles, relevant to our purpose are:\n(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.\n14. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.\n(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.\n(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.\n(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed.\n15. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.\n(v) A given set of facts may make out :\n(a) purely a civil wrong; or\n(b) purely a criminal offence; or\n(c) a civil wrong as also a criminal offence.\n16. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.\n17.  While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families.\n18. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.\n19.  In G. Sagar Suri vs. State of UP [2000 (2) SCC 636], 2000 Indlaw SC 603 this Court observed :\n\"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction u/s. 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.\"\n20. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law.One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power u/s. 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.\n21.  Coming to the facts of this case, it is no doubt true that IOC has initiated several civil proceedings to safeguard its interests and recover the amounts due. It has filed C.S. No.425/1997 in the Madras High Court and O.S. No.3327/1998 in the City Civil Court, Chennai seeking injunctive reliefs to restrain the NEPC India from removing its aircrafts so that it can exercise its right to possess the Aircrafts. It has also filed two more suits for recovery of the amounts due to it for the supplies made, that is CS No.998/1999 against NEPC India (for recovery of Rs.5,28,23,501/90) and CS No.11/2000 against Skyline (for recovery of Rs.13,12,76,421/25), in the Madras High Court.\n22. IOC has also initiated proceedings for winding up NEPC India and filed a petition seeking initiation of proceedings for contempt for alleged disobedience of the orders of temporary injunction. These acts show that civil remedies were and are available in law and IOC has taken recourse to such remedies. But it does not follow therefrom that criminal law remedy is barred or IOC is estopped from seeking such remedy.\n23.  The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof.\n24. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted to another Aircraft (VT- NEH) which had been taken on lease from 'M/s Aircraft Financing and Trading BV' and that the said Aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of the removed engines),\n25.  when sent for overhauling to M/s Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control, no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold.\n26. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not.\n27.  The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings.\nRe : Point No.(ii)\n28.  This takes us to the question whether the allegations made in the complaint, when taken on their face value as true and correct, constitute offences defined under sections 378, 403, 405, 415 and 425 IPCLearned counsel for the appellant restricted his submissions only to sections 405, 415 and 425, thereby fairly conceding that the averments in the complaint do not contain the averments necessary to make out the ingredients of the offence of theft (s. 378) or dishonest misappropriation of property (s. 403). Section 378\n29.  S. 378 defines theft. It states : \"whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.\"\n30. The averments in the complaint clearly show that neither the aircrafts nor their engines were ever in the possession of IOC. It is admitted that they were in the possession of NEPC India at all relevant times. The question of NEPC committing theft of something in its own possession does not arise. The appellant has therefore rightly not pressed the matter with reference to s. 378. Section 403\n31.  S. 403 deals with the offence of dishonest misappropriation of property. It provides that \"whoever dishonestly misappropriates or converts to his own use any movable property\", shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both. The basic requirement for attracting the section are:\n\"(i) the movable property in question should belong to a person other than the accused;\n(ii) the accused should wrongly appropriate or convert such property to his own use; and\n(iii) there should be dishonest intention on the part of the accused.\"\n32. Here again the basic requirement is that the subject matter of dishonest misappropriation or conversion should be someone else's movable property. When NEPC India owns/possesses the aircraft, it obviously cannot 'misappropriate or convert to its own use' such aircraft or parts thereof. Therefore s. 403 is also not attracted. Section 405\n33.  We will next consider whether the allegations in the complaint make out a case of criminal breach of trust u/s. 405 which is extracted below :\n\"405. Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits \"criminal breach of trust\".\n34.  A careful reading of the section shows that a criminal breach of trust involves the following ingredients:\n\"(a) a person should have been entrusted with property, or entrusted with dominion over property;\n(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so;\n(c) that such misappropriation, conversion,\"\n35. use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.\n36.  The following are examples (which include the illustrations u/s. 405) where there is 'entrustment' :\n\"(i) An 'Executor' of a will, with reference to the estate of the deceased bequeathed to legatees.\n(ii) A 'Guardian' with reference to a property of a minor or person of unsound mind.\n(iii) A 'Trustee' holding a property in trust, with reference to the beneficiary.\n(iv) A 'Warehouse Keeper' with reference to the goods stored by a depositor.\n(v) A carrier with reference to goods entrusted for transport belonging to the consignor/consignee.\n(vi) A servant or agent with reference to the property of the master or principal.\n(vii) A pledgee with reference to the goods pledged by the owner/borrower.\n(viii) A debtor, with reference to a property held in trust on behalf of the creditor in whose favour he has executed a deed of pledge-cum-trust. (Under such a deed, the owner pledges his movable property, generally vehicle/machinery to the creditor, thereby delivering possession of the movable property to the creditor and the creditor in turn delivers back the pledged movable property to the debtor, to be held in trust and operated by the debtor).\"\n37.  In Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore, Cochin [AIR 1953 SC 478], 1952 Indlaw SC 115 this Court held :\n\" to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do.\nIt follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.\" [Emphasis supplied]\n38.  In Jaswantrai Manilal Akhaney v. State of Bombay [AIR 1956 SC 575], 1956 Indlaw SC 16 this Court reiterated that the first ingredient to be proved in respect of a criminal breach of trust is 'entrustment'. It, however, clarified:\n\" .. But when S. 405 which defines \"criminal breach of trust\" speaks of a person being in any manner entrusted with property, it does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event.\"\n39.  The question is whether there is 'entrustment' in an hypothecation? Hypothecation is a mode of creating a security without delivery of title or possession. Both ownership of the movable property and possession thereof, remain with the debtor. The creditor has an equitable charge over the property and is given a right to take possession and sell the hypothecated movables to recover his dues (note : we are not expressing any opinion on the question whether possession can be taken by the creditor, without or with recourse to a court of law). The creditor may also have the right to claim payment from the sale proceeds (if such proceeds are identifiable and available).\n40. The following definitions of the term 'hypothecation' in P. Ramanatha Aiyar's Advanced Law Lexicon (Third (2005) Edition, Vol.2, Pages 2179 and 2180) are relevant:\n\"Hypothecation: It is the act of pledging an asset as security for borrowing, without parting with its possession or ownership. The borrower enters into an agreement with the lender to hand over the possession of the hypothecated asset whenever called upon to do so. The charge of hypothecation is then converted into that of a pledge and the lender enjoys the rights of a pledgee.\"\n41. 'Hypothecation' means a charge in or upon any movable property, existing in future, created by a borrower in favour of a secured creditor, without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property.\n(Borrowed from s. 2(n) of Securitisation and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002)\"\n42. But there is no 'entrustment of the property' or 'entrustment of dominion over the property' by the hypothecatee (creditor) to the hypothecator (debtor) in an hypothecation. When possession has remained with the debtor/owner and when the creditor has neither ownership nor beneficial interest, obviously there cannot be any entrustment by the creditor.\n43.  The question directly arose for consideration in Central Bureau of Investigation v. Duncans Agro Industries Ltd., Calcutta [1996 (5) SCC 591]. 1996 Indlaw SC 2982 It related to a complaint against the accused for offences of criminal breach of trust. It was alleged that a floating charge was created by the accused debtor on the goods by way of security under a deed of hypothecation, in favour of a bank to cover credit facility and that the said goods were disposed of by the debtor.\n44. It was contended that the disposal of the goods amounted to criminal breach of trust. Negativing the said contention, this Court after stating the principle as to when a complaint can be quashed at the threshold, held thus:\n\" .a serious dispute has been raised by the learned counsel as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression 'entrusted with property' or 'with any dominion over property' has been used in a wide sense in Section 405, I.P.C. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract.\nThe expression 'entrusted' appearing in Section 405, I.P.C. is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression 'trust' in Section 405, I.P.C. is a comprehensive expression and has been used to denote various kinds of relationship like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee.\nWhen some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods.\nThe property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee.\nIn the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such case for disposing of the goods covering the security against credit facility, the offence of criminal breach of trust is not committed.\" (emphasis supplied)\n45.  The allegations in the complaints are that aircrafts and the engines fitted therein belong to NEPC India, and that a charge was created thereon by NEPC India, in favour of IOC, by way of hypothecation to secure repayment of the amounts due to IOC. The terms of hypothecation extracted in the complaint show that the ownership and possession of the aircrafts continued with NEPC India. Possession of the aircraft, neither actual nor symbolic, was delivered to IOC. NEPC India was entitled to use the aircraft and maintain it in good state of repairs.\n46. IOC was given the right to take possession of the hypothecated aircrafts only in the event of any default as mentioned in the Hypothecation Deed. It is not the case of the IOC that it took possession of the aircraft in exercise of the right vested in it under the Deed of Hypothecation.\nThus, as the possession of the aircraft remained all along with NEPC India in its capacity as the owner and the Deed of Hypothecation merely created a charge over the aircrafts with a right to take possession in the event of default, it cannot be said that there was either entrustment of the aircrafts or entrustment of the dominion over the aircrafts by IOC to NEPC India. The very first requirement of section 405, that is the person accused of criminal breach of trust must have been \"entrusted with the property\" or \"entrusted with any dominion over property\" is, therefore, absent.\n47.  Learned counsel for the appellant, however, sought to distinguish the decision in Duncan Agro 1996 Indlaw SC 2982 on two grounds. It was pointed out that Duncan Agro 1996 Indlaw SC 2982 itself recognizes that there can be criminal breach of trust where a beneficial interest exists in the other person, and the offender holds the property in trust for such person. It is submitted that when the deed of hypothecation was executed by NEPC India in favour of IOC, the hypothecation created a beneficial interest in the property in favour of IOC, and vis-'-vis such 'beneficial interest' of IOC, the possession of the property by NEPC India was in 'trust'.\nIn support of this contention, reliance was placed on a decision of the Sind Judicial Commissioner in Gobindram C. Motwani v. Emperor : (1938) 39 Cr.L.J. 509. In that case the complaint was that the accused had hypothecated the goods in their shop as collateral security against an advance and had agreed to hold the goods and proceeds thereof in trust and to pay the proceeds as and when received by them.\n48.  However, as they did not pay the proceeds, the complaint was that they committed criminal breach of trust. The Magistrate took the view that as the hypothecated goods were still the property of the accused, they could not commit criminal breach of trust in respect of their own property.\nThe Judicial Commissioner did not agree. He held:\n\"The test in this case appears to me to be whether the owner of the goods, the accused, created an equitable charge over the goods in their possession when they executed the trust receipt. If they did so, they held the goods as trustees, they were \"in some manner entrusted\" with the goods, and if they dealt with them in violation of the terms of the trust, they committed an offence under this section, provided they had the necessary criminal intent.\nI can myself see no reason why it should be said that by this trust receipt the accused did not give a beneficial interest in the goods to the applicant and did not hold the goods, with which they were entrusted as legal owners in trust for the applicant.\nThat being so, I think the learned Magistrate was wrong in his decision that the accused could not be guilty of criminal breach of trust because the goods were their own property.\"\n49.  It is evident that the said observations were made on the peculiar facts of that case where the Commissioner concluded that the goods were held by the accused in trust as trustee in view of execution of a 'Trust Receipt' by the accused.\n50. The facts were somewhat similar to example (viii) in Para 17 above. Further the Judicial Commissioner finally observed that there was so much room for an honest difference of opinion as to the rights and liabilities of the parties to the trust receipt that no useful purpose could be served in interfering with the order of discharge by the Magistrate. The said decision is therefore of no assistance to the appellant.\n51. If the observations relied on by the appellant are to be interpreted as holding that the debtor holds the hypothecated goods, in trust for the creditor, then they are contrary to the decision of this Court in Duncan Agro 1996 Indlaw SC 2982 (supra) which specifically holds that when goods are hypothecated, the owner does not hold the goods in trust for the creditor.\n52.  A charge over the hypothecated goods in favour of the creditor, cannot be said to create a beneficial interest in the creditor, until and unless the creditor in exercise of his rights under the deed, takes possession.\n53. The term 'beneficial interest' has a specific meaning and connotation. When a trust is created vesting a property in the trustee, the right of the beneficiary against the trustee (who is the owner of the trust property) is known as the 'beneficial interest'. The trustee has the power of management and the beneficiary has the right of enjoyment. Whenever there is a breach of any duty imposed on the trustee with reference to the trust property or the beneficiary, he commits a breach of trust.\n54.  On the other hand, when the owner of a goods hypothecates a movable property in favour of a creditor, no 'beneficial interest' is created in favour of the creditor nor does the owner become a trustee in regard to the property hypothecated. The right of the creditor under a deed of hypothecation is the right to enforce the charge created under the deed of hypothecation in the manner specified in the deed and by no stretch of imagination can such right be equated to a beneficial interest of a beneficiary in a property held in trust. Therefore, the first contention that a creditor has a beneficial interest in the hypothecated property and the owner is in the position of a trustee with reference to the creditor is liable to be rejected.\n55.  The second ground on which learned counsel for the appellant sought to distinguish Duncan Agro 1996 Indlaw SC 2982 is that the said case dealt with a hypothecation deed creating a floating charge, whereas the case on hand related to a fixed charge and therefore, the principle laid down in Duncan Agro 1996 Indlaw SC 2982 will not apply.\n56. This contention is also without basis. The principle stated in Duncan Agro 1996 Indlaw SC 2982 will apply in regard to all types of hypothecations. It makes no difference whether the charge created by the deed of hypothecation is a floating charge or a fixed charge. Where a specific existing property is hypothecated what is created is a 'fixed' charge. The floating charge refers to a charge created generally against the assets held by the debtor at any given point of time during the subsistence of the deed of hypothecation. For example where a borrower hypothecates his stock-in-trade in favour of the Bank creating a floating charge, the stock-in-trade, held by the borrower as on the date of hypothecation may be sold or disposed of by the debtor without reference to the creditor.\n57.  But as and when new stock-in-trade is manufactured or received, the charge attaches to such future stock- in-trade until it is disposed of. The creditor has the right at any given point of time to exercise his right by converting the hypothecation into a pledge by taking possession of the stock-in-trade held by the debtor at that point of time. The principle in Duncan Agro 1996 Indlaw SC 2982 is based on the requirement of 'entrustment' and not with reference to the 'floating' nature of the charge. The second contention also has no merit.\n58.  We accordingly hold that the basic and very first ingredient of criminal breach of trust, that is entrustment, is missing and therefore, even if all the allegations in the complaint are taken at their face value as true, no case of 'criminal breach of trust' as defined u/s. 405 IPC can be made out against NEPC India. Section 415\nThe essential ingredients of the offence of 'cheating' are:\n(i) deception of a person either by making a false or misleading representation or by other action or omission\n(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.\n59.  The High Court has held that mere breach of a contractual terms would not amount to cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and in the absence of an allegation that the accused had a fraudulent or dishonest intention while making a promise, there is no 'cheating'. The High Court has relied on several decisions of this Court wherein this Court has held that dishonest intent at the time of making the promise/inducement is necessary, in addition to the subsequent failure to fulfil the promise. Illustrations (f) and (g) to s. 415 makes this position clear:\n\"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.\"\n\"(g). A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contact and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.\"\nIn Rajesh Bajaj 1999 Indlaw SC 447 (supra), this Court held:\n\"It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. ..\nThe crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear.\nHe also mentioned that respondent after receiving the goods have sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.\"\nIn Hridaya Ranjan Prasad Verma 2000 Indlaw SC 248 (supra), this Court held :\n\"On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived.\nIn the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.\nIn determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed.\nTherefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.\"\n60.  In this case, the complaints clearly allege that the accused with fraudulent intention to cheat and defraud the IOC, had induced IOC to resume supply of aircraft fuel on cash and carry basis, by entering into a further agreement dated 20.9.1997 and undertaking to clear the outstanding amount of Rs.18 crores approximately within the time stipulated in the Hypothecation Agreements.\n61. The sum and substance of the said allegation read with other averments extracted above, is that NEPC India, having committed default in paying the sum of Rs.18 crores, entered into a fresh agreement dated 20.9.1997 agreeing to clear the outstanding as per a fresh schedule, with the dishonest and fraudulent intention of pre-empting and avoiding any action by IOC in terms of the hypothecation deeds to take possession of the aircrafts. Though the supplies after 20.9.1997 were on cash and carry basis, the fraudulent intention is alleged to emanate from the promise under the said agreement to make payment, thereby preventing immediate seizure (taking possession) of the aircrafts by IOC.\n62. This allegation made in addition to the allegation relating to removal of engines, has been lost sight of by the High Court. All that is to be seen is whether the necessary allegations exist in the complaint to bring the case within s. 415. We are clearly of the view that the allegations in the complaint constitute such an offence. We are not concerned with the proof of such allegations or ultimate outcome of trial at this stage. Section 425\nS. 425 IPC provides :\n\"Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits \"mischief\". The three ingredients of the Section are :\n(i) intention to cause or knowledge that he is likely to cause wrongful loss or damage to the public or to any person;\n(ii) causing destruction of some property or any change in the property or in the situation thereof; and\n(iii) the change so made destroying or diminishing the value or utility or affecting it injuriously. For the purpose of section 425, ownership or possession of the property are not relevant.\nEven if the property belongs to the accused himself, if the ingredients are made out, mischief is committed, as is evident from illustrations (d) and (e) to s. 425.\nThe complaints clearly allege that NEPC India removed the engines thereby making a change in the aircrafts and that such removal has diminished the value and utility of the aircrafts and affected them injuriously, thereby causing loss and damage to IOC, which has the right to possess the entire aircraft.\nThe allegations clearly constitute the offence of 'mischief'. Here again, we are not concerned with the proof or ultimate decision.\"\nConclusion:\n63.  In view of the above discussion, we find that the High Court was not justified in quashing the complaints/criminal proceedings in entirety. The allegations in the complaint are sufficient to constitute offences u/ss. 415 and 425 of IPC.\n64. We accordingly allow these appeals in part and set aside the order of the High Court insofar it quashes the complaint u/ss. 415 and 425. As a consequence, the Judicial Magistrate, Coimbatore and the Judicial Magistrate, Alandur before whom the matters were pending, shall proceed with the matters in accordance with law in regard to the complaints filed by IOC in so far as offences u/ss. 415 and 425 of IPC. Parties to bear their respective costs.\nAppeals allowed.\n"}
+{"id": "HSUPwePut0", "title": "", "text": "State of West Bengal and Others v Committee For Protection of Democratic Rights, West Bengal and Others\nSupreme Court of India\n\n17 February 2010\nC.A. Nos. 6249-6250 of 2001 With W.P. (Cr.) 24 of 2008, S.L.P. (Cr.) No. 4096 of 2007 and W.P. (C) No. 573 of 2006 [From the Judgement and Order Dt. 30.03.2001 of the High Court of Calcutta in Civil Rule No. 1601 (W) of 2001 with W.P. No. 450 (W) of 2001]\nThe Judgment was delivered by: K. G. Balakrishnan, J.\n1. The issue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction u/art. 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short \"the CBI\"), established under the Delhi Special Police Establishment Act, 1946 (for short \"the Special Police Act\"), to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.\n2. For the determination of the afore-stated important legal issue, it is unnecessary to dilate on the facts obtaining in individual cases in this bunch of civil appeals/special leave petitions/writ petitions and a brief reference to the facts in Civil Appeal Nos.6249-6250 of 2001, noticed in the referral order dated 8th November, 2006, would suffice. These are:\n2.1. One Abdul Rahaman Mondal (hereinafter referred to as, \"the complainant\") along with a large number of workers of a political party had been staying in several camps of that party at Garbeta, District Midnapore, in the State of West Bengal. On 4th January, 2001, the complainant and few others decided to return to their homes from one such camp. When they reached the complainant's house, some miscreants, numbering 50-60, attacked them with firearms and other explosives, which resulted in a number of casualties. The complainant managed to escape from the place of occurrence, hid himself and witnessed the carnage. He lodged a written complaint with the Garbeta Police Station on 4th January, 2001 itself but the First Information Report (\"the FIR\" for short) for offences under Sections 148/149/ 448/436/364/302/201 of the Indian Penal Code, 1860 (for short \"the IPC\") read with Sections 25/27 of the Arms Act, 1959 and S. 9 (B) of the Explosives Act, 1884 was registered only on 5th January, 2001. On 8th January, 2001, Director General of Police, West Bengal directed the C.I.D. to take over the investigations in the case.\n2.2. A writ petition u/art. 226 of the Constitution was filed in the High Court of Judicature at Calcutta by the Committee for Protection of Democratic Rights, West Bengal, in public interest, inter alia,  alleging that although in the said incident 11 persons had died on 4th January, 2001 and more than three months had elapsed since the incident had taken place yet except two persons, no other person named in the FIR, had been arrested; no serious attempt had been made to get the victims identified and so far the police had not been able to come to a definite conclusion whether missing persons were dead or alive. It was alleged that since the police administration in the State was under the influence of the ruling party which was trying to hide the incident to save its image, the investigations in the incident may be handed over to the CBI, an independent agency.\n3. Upon consideration of the affidavit filed in opposition by the State Government, the High Court felt that in the background of the case it had strong reservations about the impartiality and fairness in the investigation by the State police because of the political fallout, therefore, no useful purpose would be served in continuing with the investigation by the State Investigating Agency. Moreover, even if the investigation was conducted fairly and truthfully by the State police, it would still be viewed with suspicion because of the allegation that all the assailants were members of the ruling party. Having regard to all these circumstances, the High Court deemed it appropriate to hand over the investigation into the said incident to the CBI.\n4. Aggrieved by the order passed by the High Court, the State of West Bengal filed a petition for special leave to appeal before this Court. On 3rd September, 2001 leave was granted. When the matter came up for hearing before a two-Judge Bench on 8th November, 2006, taking note of the contentions urged by learned counsel for the parties and the orders passed by this Court in The Management of Advance Insurance Co. Ltd. v. Shri Gurudasmal & Ors. [1970 (1) SCC 633 1970 Indlaw SC 91] and Kazi Lhendup Dorji v. Central Bureau of Investigation & Ors. [JT 1994 (3) SC 140 : 1994 (Suppl. 2) SCC 116 1994 Indlaw SC 422], the Bench was of the opinion that the question of law involved in the appeals was of great public importance and was coming before the courts frequently and, therefore, it was necessary that the issue be settled by a larger Bench. Accordingly, the Bench directed that the papers of the case be placed before the Hon'ble Chief Justice of India for passing appropriate orders for placing the matter before a larger Bench. When the matter came up before a three-Judge Bench, headed by the Hon'ble Chief Justice of India, on 29th August, 2008, this batch of cases was directed to be listed before a Constitution Bench. This is how these matters have been placed before us.\nThe Rival Contentions:\n5. Shri K.K. Venugopal, learned senior counsel appearing on behalf of the State of West Bengal, referring to Entry 80 of List I of the Seventh Schedule to the Constitution of India; Entry 2 of List II of the said Schedule as also Ss. 5 and 6 of the Special Police Act strenuously argued that from the said Constitutional and Statutory provisions it is evident that there is a complete restriction on Parliament's legislative power in enacting any law permitting the police of one State to investigate an offence committed in another State, without the consent of that State. It was urged that the Special Police Act enacted in exercise of the powers conferred under the Government of India Act, 1935, Entry 39 of List I (Federal Legislative List) of the Seventh Schedule, the field now occupied by Entry 80 of List I of the Seventh Schedule of the Constitution, replicates the prohibition of police of one State investigating an offence in another State without the consent of that State. It was submitted that Entry 2 of List II which confers exclusive jurisdiction on the State Legislature in regard to the police, the exclusive jurisdiction of a State Legislature cannot be encroached upon without the consent of the concerned State being obtained.\n6. Learned senior counsel submitted that the separation of powers between the three organs of the State, i.e. the Legislature, the Executive and the Judiciary would require each one of these organs to confine itself within the field entrusted to it by the Constitution and not to act in contravention or contrary to the letter and spirit of the Constitution.\n7. Thus, the thrust of argument of the learned counsel was that both, the federal structure as well as the principles of separation of powers, being a part of the basic structure of the Constitution, it is neither permissible for the Central Government to encroach upon the legislative powers of a State in respect of the matters specified in List II of the Seventh Schedule nor can the superior courts of the land adjure such a jurisdiction which is otherwise prohibited under the Constitution. It was urged that if the Parliament were to pass a law which authorises the police of one State to investigate in another State without the consent of that State, such a law would be pro tanto invalid and, therefore, the rule of law would require the courts, which are subservient to the Constitution, to ensure that the federal structure embodied in the Constitution as a basic principle, is not disturbed by permitting/ directing the police force of a State to investigate an offence committed in another State without the consent of that State.\n8. Relying heavily on the observations of the Constitution Bench in Supreme Court Bar Association v. Union of India & Anr. [JT 1998 (2) SC 700 : 1998 (4) SCC 409 1998 Indlaw SC 688] to the effect that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly, learned counsel contended that when even Art. 142 of the Constitution cannot be used by this Court to act contrary to the express provisions of law, the High Court cannot issue any direction ignoring the Statutory and Constitutional provisions.\nLearned counsel went to the extent of arguing that even when the State police is not in a position to conduct an impartial investigation because of extraneous influences, the Court still cannot exercise executive power of directing the police force of another State to carry out investigations without the consent of that State. In such a situation, the matter is best left to the wisdom of the Parliament to enact an appropriate legislation to take care of the situation. According to the learned counsel, till that is done, even such an extreme situation would not justify the Court upsetting the federal or quasi-federal system created by the Constitution.\n9. As regards the exercise of jurisdiction by a High Court u/art. 226 of the Constitution, learned counsel submitted that apart from the fact that there is a significant difference between the power of this Court under Art. 142 of the Constitution and the jurisdiction of the High Court u/art. 226 of the Constitution because of territorial limitations u/art. 226 (1) of the Constitution, a High Court is disentitled from issuing any direction to the authorities situated outside the territories over which it has jurisdiction.\nAccording to the learned counsel Cl. (2) of Art. 226 would have no application in a case, such as the present one, since the cause of action was complete at the time of filing the writ petition and the power under Cl. (2) can be exercised only where there is a nexus between the cause of action which arises wholly or partly within the State and the authority which is situated outside the State. It was asserted that the CBI being a rank outsider, unconnected to the incident, which took place within the State of West Bengal, the investigation of which was being conducted by the jurisdictional local police in West Bengal, had no authority to take up the case for investigation.\n10. Shri Goolam E. Vahanvati, learned Solicitor General of India, appearing on behalf of the Union of India, submitted that the entire approach of the State being based on an assumption that the alleged restriction on Parliament's legislative power under Entry 80 of List I of the Seventh Schedule to the Constitution and restriction on the power of the Central Government u/s. 6 of the Special Police Act to issue a notification binds the constitutional courts i.e. the Supreme Court and the High Courts is fallacious, inasmuch as the restrictions on the Central Government and Parliament cannot be inferentially extended to be restrictions on the Constitutional Courts in exercise of their powers u/arts. 32 and 226 of the Constitution as it is the obligation of the Superior Courts to protect the citizens and enforce their fundamental rights.\nLearned counsel vehemently argued that the stand of the appellants that the exercise of power by the Supreme Court or the High Courts to refer investigation to CBI directly without prior approval of the concerned State Government would violate the federal structure of theConstitution is again misconceived as it overlooks the basic fact that in a federal structure it is the duty of the courts to uphold the Constitutional values and to enforce the Constitutional limitations as an ultimate interpreter of the Constitution. In support of the proposition, learned counsel placed reliance on the decisions of this Court in State of Rajasthan & Ors. v. Union of India & Ors. [1977 (3) SCC 592 1977 Indlaw SC 272], S.R. Bommai & Ors. v. Union of India & Ors. [JT 1994 (2) SC 215 : 1994 (3) SCC 1 1994 Indlaw SC 2206] and Kuldip Nayar & Ors. v. Union of India & Ors. [JT 2006 (8) SC 1 : 2006 (7) SCC 1 2006 Indlaw SC 432].\n11. Relying on the recent decision by a Bench of nine Judges of this Court in I.R. Coelho (D) By LRs. v. State of Tamil Nadu [JT 2007 (2) SC 292 : 2007 (2) SCC 1 2007 Indlaw SC 12], learned counsel submitted that the judicial review being itself the basic feature of the Constitution, no restriction can be placed even by inference and by principle of legislative competence on the powers of the Supreme Court and the High Courts with regard to the enforcement of fundamental rights and protection of the citizens of India. Learned counsel asserted that in exercise of powers either u/art. 32 or 226 of the Constitution, the courts are merely discharging their duty of judicial review and are neither usurping any jurisdiction, nor overriding the doctrine of separation of powers. In support of the proposition that the jurisdiction conferred on the Supreme Court by Art. 32 as also on the High Courts u/art. 226 of the Constitution is an important and integral part of the basic structure of the Constitution, learned counsel placed reliance on the decisions of this Court in Special Reference No.1 of 1964 [1965 (1) SCR 413 1964 Indlaw SC 447], Minerva Mills Ltd. & Ors. v. Union of India & Ors. [1980 (3) SCC 625 1980 Indlaw SC 622], Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India & Ors. [1981 (1) SCC 568 1980 Indlaw SC 243], Nilabati Behera v. State of Orissa & Ors. [JT 1993 (2) SC 503 : 1993 (2) SCC 746 1993 Indlaw SC 999] and L. Chandra Kumar v. Union of India & Ors. [JT 1997 (3) SC 589 : 1997 (3) SCC 261 1997 Indlaw SC 2816]. Relying on the decision of this Court in Dwarkanath, Hindu Undivided Family v. Income-Tax Officer, Special Circle, Kanpur & Anr. [1965 (3) SCR 536 1965 Indlaw SC 125], learned counsel emphasised that the powers of the High Court u/art. 226 are also wide and plenary in nature similar to that of the Supreme Court u/art. 32 of the Constitution.\nThe Questions for Consideration:\n12. It is manifest that in essence the objection of the appellant to the CBI's role in police investigation in a State without its consent, proceeds on the doctrine of distribution of legislative powers as between the Union and the State Legislatures particularly with reference to the three Lists in the Seventh Schedule  and the distribution of powers between the said three organs of the State.\n13. In order to appreciate the controversy, a brief reference to some of the provisions in the Constitution would be necessary. The Constitution of India is divided into several parts, each part dealing in detail with different aspects of the social, economic, political and administrative set up. For the present case, we are mainly concerned with Part III of the Constitution, which enumerates the fundamental rights guaranteed by the State primarily to citizens and in some cases to every resident of India and Part XI thereof, which pertains to the relations between the Union and the States.\n14. Bearing in mind the basis on which the correctness of the impugned direction is being questioned by the State of West Bengal, we shall first notice the scope and purport of Part XI of the Constitution. According to Art. 1 of the Constitution India is a 'Union' of States, which means a Federation of States. Every federal system requires division of powers between the Union and State Governments, which in our Constitution is effected by Part XI thereof. While Arts. 245 to 255 deal with distribution of legislative powers, the distribution of administrative powers is dealt with in Arts. 256 to 261. Under the Constitution, there is a three-fold distribution of legislative powers between the Union and the States, made by the three Lists in the Seventh Schedule of the Constitution. While Art. 245 confers the legislative powers upon the Union and the States, Art. 246 provides for distribution of legislative powers between the Union and the States. Article 246, relevant for our purpose, reads as follows:-\n\"246. Subject-matter of laws made by Parliament and by the Legislatures of States -\n(1) Notwithstanding anything in cls. (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the \"Union List\").\n(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the \"Concurrent List\").\n(3) Subject to cls. (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').\n(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.\"\n15. The Article deals with the distribution of legislative powers between the Union and the State Legislatures. List I or the 'Union List' enumerates the subjects over which the Union shall have exclusive powers of legislation in respect of 99 items or subjects, which include Defence etc.; List II or the 'State List' comprises of subjects, which include Public Order, Police etc., over which the State Legislature shall have exclusive power of legislation and List III gives concurrent powers to the Union and the State Legislatures to legislate in respect of items mentioned therein. The Article postulates that Parliament shall have exclusive power to legislate with respect to any of the matters enumerated in List I notwithstanding anything contained in cls. (2) and (3). The non obstante clause in Art. 246(1) contemplates the predominance or supremacy of the Union Legislature. This power is not encumbered by anything contained in cl. (2) and (3) for these clauses themselves are expressly limited and made subject to the non obstante clause in Art. 246(1). The State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule and it also has the power to make laws with respect to any matters enumerated in List III (Concurrent List).\nThe exclusive power of the State Legislature to legislate with respect to any of the matters enumerated in List II has to be exercised subject to cl. (1) i.e. the exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an Entry in List I and an Entry in List II, which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature. Both Parliament and the State Legislature have concurrent powers of legislation with respect to any of the matters enumerated in List III. The words \"notwithstanding anything contained in cls. (2) and (3)\" in Art. 246 (1) and the words \"subject to cls. (1) and (2)\" in Art. 246 (3) lay down the principle of federal supremacy viz. that in case of inevitable conflict between Union and State powers, the Union power as enumerated in List I shall prevail over the State power as enumerated in Lists II and III and in case of an overlapping between Lists II and III, the latter shall prevail. Though, undoubtedly, the Constitution exhibits supremacy of Parliament over State Legislatures, yet the principle of federal supremacy laid down in Art. 246 of the Constitution cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State Lists.\n\"Thus, there is no quarrel with the broad proposition that under the Constitution there is a clear demarcation of legislative powers between the Union and the States and they have to confine themselves within the field entrusted to them. It may also be borne in mind that the function of the Lists is not to confer powers; they merely demarcate the Legislative field. But the issue we are called upon to determine is that when the scheme of Constitution prohibits encroachment by the Union upon a matter which exclusively falls within the domain of the State Legislature, like public order, police etc., can the third organ of the State viz. the Judiciary, direct the CBI, an agency established by the Union to do something in respect of a State subject, without the consent of the concerned State Government?\"\n16. In order to adjudicate upon the issue at hand, it would be necessary to refer to some other relevant Constitutional and Statutory provisions as well.\n17. As noted earlier, the Special Police Act was enacted by the Governor General in Council in exercise of the powers conferred by the Government of India Act, 1935 (Entry 39 of List I, Seventh Schedule).\nThe said Entry reads as under:\n\"Extension of the powers and jurisdiction of members of a police force belonging to any part of British India to any area in another Governor's Province or Chief Commissioner's Province, but not so as to enable the police of one part to exercise powers and jurisdiction elsewhere without the consent of the Government of the Province or the Chief Commissioner as the case may be; extension of the powers and jurisdiction of members of a police force belonging to any unit to railway areas outside that unit.\"\n17.1. It is manifest that the Special Police Act was passed in terms of the said Entry imposing prohibition on the Federal Legislature to enact any law permitting the police of one State from investigating an offence committed in another State, without the consent of the State. The said Entry was replaced by Entry 80 of List I of the Seventh Schedule to the Constitution of India.\nThe said entry reads thus:\n\"Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Govt. of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.\"\n17.2. Entry 2 of List II of the Constitution of India, which corresponds to Entry 2 List II of the Government of India Act, conferring exclusive jurisdiction to the States in matter relating to police reads as under:-\nEntry 2 List II:\n\"Police (including railway and village police) subject to the provisions of entry 2A of List I.\"\nEntry 2A of List I:\n\"Development of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.\"\n18. From a bare reading of the afore-noted Constitutional provisions, it is manifest that by virtue of these entries, the legislative power of the Union to provide for the regular police force of one State to exercise power and jurisdiction in any area outside the State can only be exercised with the consent of the Government of that particular State in which such area is situated, except the police force belonging to any State to exercise power and jurisdiction to railway areas outside that State.\n19. As the preamble of the Special Police Act states, it was enacted with a view to constitute a special force in Delhi for the investigation of certain offences in the Union Territories and to make provisions for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences.\nSub-s. (1) of S. 1 specifies the title of the Special Police Act and sub-s. (2) speaks that the Special Police Act extends to the whole of India. S. 2 contains 3 subsections. Sub-s. (1) empowers the Central Government to constitute a special police force to be called the Delhi Special Police Establishment for the investigation of offences notified u/s. 3 in any Union Territory; sub-s. (2) confers upon the members of the said police establishment in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein and sub-s. (3) provides that any member of the said police establishment of or above the rank of Sub- Inspector be deemed to be an officer in charge of a police station. U/s. 3 of the Special Police Act, the Central Government is required to specify and notify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment, constituted under the Special Police Act, named \"the CBI\". S. 4 deals with the administrative control of the establishment and according to sub-section (2), the \"superintendence\" of the Establishment vests in the Central Government and the administration of the said establishment vests in an officer appointed in this behalf by the Central Government. Explaining the meaning of the word \"Superintendence\" in S. 4(1) and the scope of the authority of the Central Government in this context, in Vineet Narain & Ors. v. Union of India & Anr. [JT 1997 (10) SC 247 : 1998 (1) SCC 226 1997 Indlaw SC 1247], a Bench of three Judges of this Court said:-\n\"40....The word \"superintendence\" in S. 4(1) cannot be construed in a wider sense to permit supervision of the actual investigation of an offence by the CBI contrary to the manner provided by the statutory provisions. The broad proposition urged on behalf of the Union of India that it can issue any directive to the CBI to curtail or inhibit its jurisdiction to investigate an offence specified in the notification issued u/s. 3 by a directive under S. 4(1) of the Act cannot be accepted. The jurisdiction of the CBI to investigate an offence is to be determined with reference to the notification issued u/s. 3 and not by any separate order not having that character.\"\n20. S. 5 of the Special Police Act empowers the Central Government to extend the powers and jurisdiction of the Special Police Establishment to any area, in a State, not being a Union Territory for the investigation of any offences or classes of offences specified in a notification u/s. 3 and on such extension of jurisdiction, a member of the Establishment shall discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of the police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.\n21. Section 6, the pivotal provision, reads as follows:\n\"6. Consent of State Government to exercise of powers and jurisdiction. - Nothing contained in S. 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without the consent of the Government of that State.\"\n22. Thus, although S. 5(1) empowers the Central Government to extend the powers and jurisdiction of members of the Delhi Special Police Establishment to any area in a State, but S. 6 imposes a restriction on the power of the Central Government to extend the jurisdiction of the said Establishment only with the consent of the State Government concerned.\n23. Having noticed the scope and amplitude of Ss. 5 and 6 of the Special Police Act, the question for consideration is whether the restriction imposed on the powers of the Central Government would apply mutatis mutandis to the Constitutional Courts as well. As stated above, the main thrust of the argument of Shri K.K. Venugopal, learned senior counsel, is that the course adopted by the High Court in directing the CBI to undertake investigation in the State of West Bengal without the consent of the State is incompatible with the federal structure as also the doctrine of separation of powers between the three organs of the State, embodied in the Constitution even when the High Court, on the material before it, was convinced that the State Police was dragging its feet in so far as investigation into the 4th January, 2001 carnage was concerned.\n24. In so far as the first limb of the argument is concerned, it needs little emphasis that, except in the circumstances indicated above, in a federal structure, the Union is not permitted to encroach upon the legislative powers of a State in respect of the matters specified in List II of the Seventh Schedule.\nHowever, the second limb of the argument of the learned counsel in regard to the applicability of the doctrine of separation of powers to the issue at hand, in our view, is clearly untenable. Apart from the fact that the question of Centre - State relationship is not an issue in the present case, a Constitutional Court being itself the custodian of the federal structure, the invocation of the federal structure doctrine is also misplaced.\n25. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. As observed in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha & Ors. [JT 2007 (2) SC 1 : 2007 (3) SCC 184 2007 Indlaw SC 11], the Constitution is the suprema lex in this country. All organs of the State, including this Court and the High Courts, derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. Highlighting the fundamental features of a federal Constitution, in Special Reference No. 1  the Constitution Bench (7-Judges) observed as follows:-\n\"...the essential characteristic of federalism is 'the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other'. The supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the Constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers.\"\n26. It is trite that in the Constitutional Scheme adopted in India, besides supremacy of the Constitution, the separation of powers between the legislature, the executive and the judiciary constitutes the basic features of the Constitution. In fact, the importance of separation of powers in our system of governance was recognised in Special Reference No. 1 (supra), even before the basic structure doctrine came to be propounded in the celebrated case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. [1973 (4) SCC 225 1973 Indlaw SC 537], wherein while finding certain basic features of the Constitution, it was opined that separation of powers is part of the basic structure  of the Constitution. Later, similar view was echoed in Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr. [1975 (Suppl.) SCC 1 1975 Indlaw SC 433] and in a series of other cases on the point. Nevertheless, apart from the fact that our Constitution does not envisage a rigid and strict separation of powers between the said three organs of the State, the power of judicial review stands entirely on a different pedestal. Being itself part of the basic structure of the Constitution, it cannot be ousted or abridged by even a Constitutional amendment. [See: L. Chandra Kumar v. Union of India & Ors. 1997 Indlaw SC 2816 (supra)]. Besides, judicial review is otherwise essential for resolving the disputes regarding the limits of Constitutional power and entering the Constitutional limitations as an ultimate interpreter of the Constitution. In Special Reference No.1 of 1964 , it was observed that whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens.\nIn Smt. Indira Nehru Gandhi 1975 Indlaw SC 433 (supra), Y.V. Chandrachud, J. (as His Lordship then was), drawing distinction between the American and Australian Constitution on the one hand and the Indian Constitution on the other, observed that the principle of separation of powers is not a magic formula for keeping the three organs of the State within the strict confines of their functions. The learned judge also observed that in a federal system, which distributes powers between three coordinate branches of government, though not rigidly, disputes regarding the limits of Constitutional power have to be resolved by courts. Quoting George Whitecross Paton, an Australian Legal Scholar, that \"the distinction between judicial and other powers may be vital to the maintenance of the Constitution itself\", the learned judge said that the principle of separation of powers is a principle of restraint which \"has in it the percept, innate in the prudence of self-preservation (even if history has not repeatedly brought in home), that discretion is the better part of valour\" Julius Stone: Social Dimensions of Law and Justice.\n27. Recently in State of U.P. & Ors. v. Jeet S. Bisht & Anr. [JT 2007 (8) SC 59 : 2007 (6) SCC 586 2007 Indlaw SC 949], S.B. Sinha, J. dealt with the topic of separation of powers in the following terms:-\n\"77. Separation of powers is a favourite topic for some of us. Each organ of the State in terms of the Constitutional scheme performs one or the other functions which have been assigned to the other organ. Although drafting of legislation and its implementation by and large are functions of the legislature and the executive respectively, it is too late in the day to say that the constitutional court's role in that behalf is non-existent. The judge-made law is now well recognised throughout the world. If one is to put the doctrine of separation of power to such a rigidity, it would not have been possible for any superior court of any country, whether developed or developing, to create new rights through interpretative process.\n78. Separation of powers in one sense is a limit on active jurisdiction of each organ. But it has another deeper and more relevant purpose: to act as check and balance over the activities of other organs. Thereby the active jurisdiction of the organ is not challenged; nevertheless there are methods of prodding to communicate the institution of its excesses and shortfall in duty. Constitutional mandate sets the dynamics of this communication between the organs of polity.\nTherefore, it is suggested to not understand separation of powers as operating in vacuum. Separation of powers doctrine has been reinvented in modern times.\nxxx xxx xxx\n80. The modern view, which is today gathering momentum in constitutional courts the world over, is not only to demarcate the realm of functioning in a negative sense, but also to define the minimum content of the demarcated realm of functioning. Objective definition of function and role entails executing the same, which however may be subject to the plea of financial constraint but only in exceptional cases. In event of any such shortcoming, it is the essential duty of the other organ to advise and recommend the needful to substitute inaction. To this extent we must be prepared to frame answers to these difficult questions.\n83. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.\"\n28. Having discussed the scope and width of the doctrine of separation of powers, the moot question for consideration in the present case is that when the fundamental rights, as enshrined in Part III of the Constitution, which include the right to equality (Article 14); the freedom of speech [Art. 19(1)(a)] and the right not to be deprived of life and liberty except by procedure established by law (Article 21), as alleged in the instant case, are violated, can their violation be immunised from judicial scrutiny on the touchstone of doctrine of separation of powers between the Legislature, Executive and the Judiciary.\n\"To put it differently, can the doctrine of separation of powers curtail the power of judicial review, conferred on the Constitutional Courts even in situations where the fundamental rights are sought to be abrogated or abridged on the ground that exercise of such power would impinge upon the said doctrine?\"\n29. The Constitution is a living and organic document. It cannot remain static and must grow with the nation. The Constitutional provisions have to be construed broadly and liberally having regard to the changed circumstances and the needs of time and polity. In Kehar Singh & Anr. v. Union of India & Anr. [1989 (1) SCC 204 1988 Indlaw SC 47], speaking for the Constitution Bench, R.S. Pathak, C.J. held that in keeping with modern Constitutional practice, the Constitution of India is a constitutive document, fundamental to the governance of the country, whereby the people of India have provided a Constitutional polity consisting of certain primary organs, institutions and functionaries with the intention of working out, maintaining and operating a Constitutional order. On the aspect of interpretation of a Constitution, the following observations of Justice Dickson of the Supreme Court of Canada in Lawson A.W. Hunter & Ors. v. Southam Inc. [1984 (2) SCR 145 ] are quite apposite:-\n\"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind.\"\n30. In M. Nagaraj & Ors. v. Union of India & Ors. [JT 2006 (9) SC 191 : 2006 (8) SCC 212 2006 Indlaw SC 722], speaking for the Constitution Bench, S.H. Kapadia, J. observed as under:-\n\"The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges.\"\n[Emphasis supplied]\n31. Recently, in I.R. Coelho 2007 Indlaw SC 12 (supra), noticing the principles relevant for the interpretation of Constitutional provisions, Y.K. Sabharwal, C.J., speaking for the Bench of nine Judges of this Court, observed as follows:-\n\"The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers; it requires a diffusion of powers, necessitating different independent centres of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.\"\n31.1. Observing further that the protection of fundamental constitutional rights through the common law is the main feature of common law constitutionalism, the Court went on to say:-\n\"Under the controlled Constitution, the principles of checks and balances have an important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain circumstances, Courts may be forced to modify the principle of parliamentary sovereignty, for example, in cases where judicial review is sought to be abolished. By this the judiciary is protecting a limited form of constitutionalism, ensuring that their institutional role in the Government is maintained.\"\n32. The Constitution of India expressly confers the power of judicial review on this Court and the High Courts u/art. 32 and 226 respectively. Dr. B.R. Ambedkar described Art. 32 as the very soul of the Constitution - the very heart of it - the most important Article. By now, it is well settled that the power of judicial review, vested in the Supreme Court and the High Courts under the said Articles of the Constitution, is an integral part and essential feature of the Constitution, constituting part of its basic structure. Therefore, ordinarily, the power of the High Court and this Court to test the Constitutional validity of legislations can never be ousted or even abridged. Moreover, Art. 13 of the Constitution not only declares the preconstitution laws as void to the extent to which they are inconsistent with the fundamental rights, it also prohibits the State from making a law which either takes away totally or abrogates in part a fundamental right. Therefore, judicial review of laws is embedded in the Constitution by virtue of Art. 13 read with Arts. 32 and 226 of our Constitution. It is manifest from the language of Art. 245 of the Constitution that all legislative powers of the Parliament or the State Legislatures are expressly made subject to other provisions of the Constitution, which obviously would include the rights conferred in Part III of the Constitution. Whether there is a contravention of any of the rights so conferred, is to be decided only by the Constitutional Courts, which are empowered not only to declare a law as unconstitutional but also to enforce fundamental rights by issuing directions or orders or writs of or \"in the nature of\" mandamus, certiorari, habeas corpus, prohibition and quo warranto for this purpose.\nIt is pertinent to note that Art. 32 of the Constitution is also contained in Part III of the Constitution, which enumerates the fundamental rights and not alongside other Articles of the Constitution which define the general jurisdiction of the Supreme Court.\nThus, being a fundamental right itself, it is the duty of this Court to ensure that no fundamental right is contravened or abridged by any statutory or constitutional provision. Moreover, it is also plain from the expression \"in the nature of\" employed in cl. (2) of Art. 32 that the power conferred by the said clause is in the widest terms and is not confined to issuing the high prerogative writs specified in the said clause but includes within its ambit the power to issue any directions or orders or writs which may be appropriate for enforcement of the fundamental rights. Therefore, even when the conditions for issue of any of these writs are not fulfilled, this Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress. (per P.N. Bhagwati, J. in Bandhua Mukti Morcha v. Union of India & Ors. [1984 (3) SCC 161 1983 Indlaw SC 192].\n33. In this context, it would be profitable to make a reference to the decision of this Court in Nilabati Behera 1993 Indlaw SC 999 (supra). The Court concurred with the view expressed by this Court in  wherein it was said that the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared \"to forge new tools and devise new remedies\" for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the enquiry, needed to ascertain the necessary facts, for granting the relief, as may be available mode of redress, for enforcement of the guaranteed fundamental rights.\nIn his concurring judgment, Dr. A.S. Anand, J. (as His Lordship then was), observed as under:\n\"35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction u/arts. 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights u/art. 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings.\"\n34. It may not be out of place to mention that in so far as this Court is concerned, apart from Arts. 32 and 142 which empower this Court to issue such directions, as may be necessary for doing complete justice in any cause or matter, Art. 144 of the Constitution also mandates all authorities, civil or judicial in the territory of India, to act in aid of the orders passed by this Court.\n35. As regards the power of judicial review conferred on the High Court, undoubtedly they are, in a way, wider in scope. The High Courts are authorised u/art. 226 of the Constitution, to issue directions, orders or writs to any person or authority, including any government to enforce fundamental rights and, \"for any other purpose\". It is manifest from the difference in the phraseology of Arts. 32 and 226 of the Constitution that there is a marked difference in the nature and purpose of the right conferred by these two Articles. Whereas the right guaranteed by Art. 32 can be exercised only for the enforcement of fundamental rights conferred by Part III of the Constitution, the right conferred by Art. 226 can be exercised not only for the enforcement of fundamental rights, but \"for any other purpose\" as well, i.e. for enforcement of any legal right conferred by a Statute etc.\n36. In Tirupati Balaji Developers (P) Ltd. & Ors. v. State of Bihar & Ors. [JT 2004 (Suppl. 1) SC 160 : 2004 (5) SCC 1 2004 Indlaw SC 346], this Court had observed thus:\n\"8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are courts of record. The High Court is not a court \"subordinate\" to the Supreme Court. In a way the canvas of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Art. 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential elections or inter-State disputes which the Constitution does not envisage being heard and determined by High Courts.\"\n37. In  this Court had said that Art. 226 of the  Constitution is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. This Article enables the High Courts to mould the reliefs to meet the peculiar and extra-ordinary circumstances of the case. Therefore, what we have said above in regard to the exercise of jurisdiction by this Court under Article 32, must apply equally in relation to the exercise of jurisdiction by the High Courts u/art. 226 of the Constitution.\n38. Article 21, one of the fundamental rights enshrined in Part III of the Constitution declares that no person shall be deprived of his \"life\" or \"personal liberty\" except according to the procedure established by law. It is trite that the words \"life\" and \"personal liberty\" are used in the Article as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of person's animal existence. (See: Kharak Singh v. State of U.P. [1964 (1) SCR 332 1962 Indlaw SC 577].\n39. The paramountcy of the right to \"life\" and \"personal liberty\" was highlighted by the Constitution Bench in Kehar Singh It was observed thus:\n\"To any civilised society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Art. 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is provided to the judicial organ.\"\n40. In Minerva Mills , Y.V. Chandrachud, C.J., speaking for the majority observed that Arts. 14 and 19 do not confer any fanciful rights. They confer rights which are elementary for the proper and effective functioning of democracy. They are universally regarded by the Universal Declaration of Human Rights. If Arts. 14 and 19 are put out of operation, Art. 32 will be drained of its life blood. Emphasising the significance of Articles 14, 19 and 21, the learned Chief Justice remarked:\n\"74. Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31-C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.\"\n41. The approach in the interpretation of fundamental rights has again been highlighted in M. Nagaraj 2006 Indlaw SC 722 (supra), wherein this Court observed as under:\n\"This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part- III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as a fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India [AIR 1962 SC 305 1961 Indlaw SC 429], this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down.\nThe Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in A.K. Gopalan v. State of Madras [AIR 1950 SC 27 1950 Indlaw SC 42]. Art. 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that 'procedure established by law' means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan 1950 Indlaw SC 42 and held in its landmark judgment in Maneka Gandhi v. Union of India [1978 (1) SCC 248 1978 Indlaw SC 212] that the procedure contemplated by Art. 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression 'life' in Art. 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees.\"\n42. Thus, the opinion of this Court in A.K. Gopalan 1950 Indlaw SC 42 (supra) to the effect that a person could be deprived of his liberty by 'any' procedure established by law and it was not for the Court to go into the fairness of that procedure was perceived in Maneka Gandhi 1978 Indlaw SC 212 (supra) as a serious curtailment of liberty of an individual and it was held that the law which restricted an individual's freedom must also be right, just and fair and not arbitrary, fanciful or oppressive. This judgment was a significant step towards the development of law with respect to Art. 21 of the Constitution, followed in a series of subsequent decisions. This Court went on to explore the true meaning of the word \"Life\" in Art. 21 and finally opined that all those aspects of life, which make a person live with human dignity are included within the meaning of the word \"Life\".\n43. Commenting on the scope of judicial review vis--vis constitutional sovereignty particularly with reference to Articles 14, 19 and 21 of the Constitution, in I.R. Coelho  this Court said:\n\"There is a difference between Parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not Parliament. It is in the exercise of law making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If in future, judicial review was to be abolished by a constitutional amendment, as Lord Steyn says, the principle of parliamentary sovereignty even in England would require a relook. This is how law has developed in England over the years. It is in such cases that doctrine of basic structure as propounded in Kesavananda Bharati case 1973 Indlaw SC 537 (supra) has to apply.\"\n43.1. While observing that the abrogation or abridgement of the fundamental rights under Chapter III of the Constitution have to be examined on broad interpretation so as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure, the Court explained the doctrine of separation of powers as follows: \"...[i]t was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In The Federalist Nos. 47, 48, and 51, James Madison details how a separation of powers preserves liberty and prevents tyranny. In The Federalist No. 47, Madison discusses Montesquieu's treatment of the separation of powers in Spirit of Laws, (Book XI, Chapter 6). There Montesquieu writes, \"When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty ... Again, there is no liberty, if the judicial power be not separated from the legislative and executive.\" Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of Government should not be entirely in the hands of another department of Government. Alexander Hamilton in The Federalist No.78, remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people:-\n\"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.\" (434) Montesquieu finds that tyranny pervades when there is no separation of powers: \"There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.\"\n43.2. The Court further observed: \"Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.\nTherefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.\nRealising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality which is a part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure.\nTherefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure - rule of law, separation of power - the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure.\nConclusions:\n44. Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:\n(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.\n(ii) Art. 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.\n(iii) In view of the Constitutional scheme and the jurisdiction conferred on this Court u/art. 32 and on the High Courts u/art. 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers al Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives  embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of \"the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review.\n(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy u/arts. 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in? exercise of power u/art. 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.\n(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary u/art. 32 and 226 of the Constitution.\n(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.\n(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court u/art. 226 of the Constitution cannot be taken away, curtailed or diluted by S. 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by S. 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.\n45. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction u/art. 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and u/art. 21 of the Constitution in particular, zealously and vigilantly.\n46. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Arts. 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police.\nThis extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.\n47. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. v. Sahngoo Ram Arya & Anr. [JT 2002 (Suppl. 1) SC 286 : 2002 (5) SCC 521 2002 Indlaw SC 314], this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency. We respectfully concur with these observations.\n48. All the cases shall now be placed before the respective Benches for disposal in terms of this opinion.\nOrder accordingly.\n"}
+{"id": "g3iCPU6zUj", "title": "", "text": "K. Saravanan Karuppasamy and another v State of Tamil Nadu and others\nSupreme Court of India\n\n16 September 2014\nW.P. (Civil) No. 400 of 2010\nThe Judgment was delivered by : R. Banumathi, J.\n1. This writ petition has been filed by the petitioners seeking a writ of mandamus to initiate an independent investigation preferably by Central Bureau of Investigation (CBI) or Special Investigation Team (SIT) into the incident of alleged beating of students of Dr. Ambedkar Government Law College, Chennai on 12.11.2008 by some miscreants so that criminal proceedings could be initiated against the guilty police personnel as well as the other persons responsible for the said incident.\n2. Brief facts which led to the filing of the writ petition are as follows:-\nA group of students of Dr. Ambedkar Law College, Chennai belonging to Thevar Community is said to have pasted posters and pamphlets inside the college premises in connection with the birthday celebrations of Pasumpon Muthuramalingam Thevar in which the name of the law college was printed as \"Government Law College\" instead of \"Dr. Ambedkar Government Law College\". Agitated Dalit Students questioned the Non-Dalit Students which led to wordy altercation between the two groups culminating in an untoward incident which occurred in the campus of Dr. Ambedkar Government Law College, Chennai on 12.11.2008 at about 2.20 P.M. Both the group of students attacked each other and it is alleged that Non-Dalit Students (Thevar Students) were brutally beaten by the other group. Regarding the incident, criminal cases were registered against both the groups. Few police personnel were suspended on the same day and a Commission of Enquiry headed by a retired High Court Judge was also appointed which filed its report and the same was accepted by the State Government and some follow up action was taken.\n3. The petitioners claim to be the President and Secretary of 'World Human Rights Commission & Rescue Centre' and main aim of their organisation is stated to be to instil a sense of public awareness about the human rights and take up cases of gross human rights violations. Grievance of the petitioners is that though the occurrence was in front of the Law College in broad day light and a number of police personnel were present, they did not intervene to prevent the clashes and the police remained silent spectators. According to the petitioners, the delinquent police officials deliberately did not intervene, only in order to appease their political bosses and the police personnel were negligent in preventing the incident. Since there was violation of human rights and dereliction of duty on the part of police personnel in preventing the incident, the petitioners tried to lodge a complaint with the State Human Rights Commission ('SHRC'), but SHRC refused to entertain the same and the petitioner No. 2 was left with no option, but to file a complaint before the National Human Rights Commission ('NHRC') and a case bearing No.1492/22/13/08-09/UC was registered with NHRC. Case of petitioners is that, since the petitioners have filed complaints before NHRC about the law college incident, the petitioners are facing considerable harassment at the hands of the Tamilnadu Police and frivolous cases are registered against the petitioners and their Organisation since the petitioners have refused to withdraw the complaint filed with the NHRC regarding the law college incident. All the accounts and properties of the Organisation have been seized by CB CID arbitrarily without following proper procedure. The petitioners therefore allege that the investigation in the Law College incident has not been proceeded with all seriousness and the petitioners seek independent investigation into the incident of brutal beating of students of Dr. Ambedkar Government Law College on 12.11.2008 by an independent agency either CBI or SIT.\n4. Upon notice, the State of Taminadu and SHRC have filed their Status Report/response.\n5. Mr. Prashant Bhushan, learned counsel appearing for the petitioners submitted that since the petitioners filed complaint against the erring police officials with NHRC and since petitioners have refused to withdraw the complaint filed with NHRC, the petitioners are constantly being harassed by the State Police - Organized Crime Unit (OCU) and Crime Branch -Crime Investigation Department (CB CID) and false cases have been registered against the petitioners. Learned counsel further submitted that OCU and CB CID police used all kinds of third degree methods and the first petitioner was brutally beaten not only by the police but also by rowdy elements and the petitioner and his family members underwent a great deal of mental agony, pain and harassment. Drawing our attention to the Status Report filed by the State, learned counsel submitted that in the departmental proceedings, the erring police officials have been let off either with 'censure' or nominal punishment and the matter has not been proceeded with all seriousness and urged that the investigation of the Law College incident on 12.11.2008 be handed over to CBI or SIT.\n6. Mr. Subramanium Prasad, Learned Additional Advocate General appearing for the State of Tamilnadu had taken us through the Status Report filed by the State and submitted that criminal cases were registered against both the groups of students and accepting the report of One Man Commission, the State Government initiated departmental proceedings against the police personnel and punishments were also imposed on them. It was submitted that criminal cases are registered against the petitioners and they are charge sheeted for the offence of cheating and other offences and petitioners with malafide intention are linking the law college incident as the cause for registration of criminal cases against the petitioners by the police and such an allegation is baseless.\n7. We have also heard Mr. K. Subramanian, learned Senior Counsel appearing for the intervener/impleaded respondent - K. Armstrong and Mr. R. Balasubramanian, learned Senior Counsel appearing for SHRC.\n8. Grievance of the petitioners is two-fold:-\n(i) alleged inaction or nominal action of the State and the police and SHRC on the Law College incident on 12.11.2008 and need for an investigation by an independent agency like CBI and (ii) alleged harassment of the petitioners by the police and registration of false cases against the petitioners.\n9. As per the Status Report filed by the State, on the complaint of Mr. Ayyadurai (Thevar Community) one of the injured students, a case was registered as Crime No. 1371/2008 of B2 Esplanade Police Station under Sections 147, 148, 341, 324, 307 & 506 (ii) IPC against one Mr. Chithiraiselvan and 40 other students. It is stated that 23 accused students were arrested and sent to judicial custody and some of the accused surrendered before the court and they were released on bail and remaining accused obtained anticipatory bail from the High Court Madras. Similarly, on the complaint of Chithiraiselvan (Dalit Student), a criminal case was registered in Crime No. 1372/2008 against two students in B2 Esplanade Police Station under Sections 341, 324 and 506 (ii) IPC and the same was subsequently altered into Sections 341, 324, 307 and 506 (ii) IPC. Those two students who are accused were arrested and they were released on bail on the direction of the High Court on 12.1.2009. For the alleged ransacking and damaging of furnitures and other properties of the Principal's Room on 13.11.2008 another case was registered in B2 Esplanade Police Station being Crime No.1374/2008 under Sections 147, 148 IPC and S. 3(1) of Tamilnadu Property (Prevention of Damage and Loss) Act, 1992 and 14 accused were arrested who were subsequently released on bail on 23.12.2008 as per the order of the High Court.\n10. As per Status Report filed in this Court on 8.9.2014, in Crime No.1371/2008 charge-sheet was filed before VIIth Metropolitan Magistrate, George Town, Chennai on 10.3.2011 and the same was returned for rectification of certain errors and after rectification it was resubmitted on 19.5.2011 and the same is yet to be taken on file. In Crime No.1372/2008, charge-sheet was filed and the same has been taken on file Case No.29/2011 and the next date of hearing has been fixed for 9.9.2014. In Crime No.1374/2008, some of the accused are yet to be apprehended and the charge-sheet has been filed on 22.3.2011 before VIIth Metropolitan Magistrate, George Town, Chennai which is also yet to be taken on file.\n11. In the Status Report, it is stated that on 12.11.2008, on the same date of incident three officials namely, (1) Mr. K.K. Sridev, Principal of the Law College and (2) Mr. K. Narayanamoorthy, Assistant Commissioner of Police of the Jurisdiction Range and (3) Mr.M. Sekar Babu, Inspector of Police of B2 Esplanade Police Station were suspended and four Sub Inspectors of Police who were working in that area had been transferred to other districts. Government of Tamilnadu appointed a Commission of Inquiry headed by Justice P. Shanmugam, a former Judge of the Madras High Court to inquire into the incident and the issues referred to by the Government. The Commission submitted its report on 8.6.2009 to the Government and accepting the recommendations of the Commission, departmental action was initiated against three police personnel viz. (1) Mr .K. Narayanamoorthy, Assistant Commissioner of Police; (2) Mr. M. Sekar Babu, Inspector of Police and (3) Mr. E. Perumal, Sub Inspector of Police. After completing the inquiry against the police officers concerned, report was submitted to the Government and matter was pending before the Home Department for final decision for quite sometime. By Order dated 29.4.2011, this Court directed the respondents to ensure that the final orders are passed before the next date and the State was directed to file Status Report with regard to the entire situation. In furtherance of direction of this Court, the State filed a further Status Report stating that Government accepted the findings of the Inquiry Officer and imposed punishment of 'censure' to Mr. Narayanamoorthy, Assistant Commissioner of Police in G.O. (2D) No. 217 Home (Police-2) Department dated 18.6.2013 and (2) Mr. Sekar Babu, Inspector of Police in G.O.(2D) No.218 Home (Police-2) Department dated 18.6.2013. Insofar as Mr. E. Perumal, Sub Inspector of Police, the Government proposed to impose punishment of cut in pension at the rate of Rs.200/- per month for two years under Rule 9 of the Tamilnadu Police Rules and the said police officer has been called upon to show cause against the proposed punishment.\n12. Mr. Prashant Bhushan, learned counsel appearing for the petitioners submitted that even though there was grave dereliction of duty on the part of the police personnel, there had been inconsequential departmental action and only nominal punishment of censure was imposed on two police officers and in case of another police officer Mr. E. Perumal, Sub Inspector of Police, the Government proposed to impose meagre punishment of cut in pension at the rate of Rs. 200/- per month for two years (Rs. 4,800/- in all) and thus in effect no punitive action has been taken against the police personnel commensurate with their grave dereliction of duty, which only shows the reluctance on the part of the State in pursuing the matter with all seriousness. Insofar as criminal cases registered regarding the incident, the learned counsel submitted that in two cases charge-sheets are yet to be taken on file and urged that in order to have a fair investigation, the matter be entrusted to CBI/SIT for further investigation. Learned counsel submitted that it is in this backdrop of the inaction on the part of State, petitioners chose to move SHRC and since SHRC had not promptly responded, petitioners moved NHRC for which, the petitioners have been harassed and false cases have been registered against the petitioners.\n13. Mr. R. Balasubramanian, learned senior counsel appearing for SHRC submitted that the SHRC was then headed by a retired Chief Justice of the High Court and the petitioners are not justified in making baseless allegation against SHRC for not taking immediate action. The learned counsel submitted that since the State Government appointed Commission of Inquiry headed by a retired High Court Judge, SHRC did not vigorously pursue the matter, as it would have amounted to holding a parallel inquiry by SHRC.\n14. We have perused few video clippings produced before us and report of the Commission of Inquiry. But we are refraining from entering into the details thereof, lest, it may prejudice any party. By a perusal of the Status Report and other materials, we feel that the matter was not proceeded with seriousness with which it ought to have been proceeded with. For instance, the main accused K. Armstrong in Crime No.1371/2008 was not arrested for long time and was shown as an absconder in the final report though he is stated to be a practising advocate and also a contesting candidate in the election. On 8.2.2011, the matter was brought to the notice of this Court and only after the order was passed by this court, accused K. Armstrong was arrested on 1.5.2011 who was subsequently released on bail on 4.5.2011. Likewise in two criminal cases charge-sheets are yet to be taken on file and some of the accused are yet to be apprehended and trial is yet to commence.\n15. Insofar as contention of Mr. Bhushan to entrust the matter for further investigation to CBI/SIT is concerned, time and again, it has been reiterated by this Court that such an order to conduct investigation by CBI is not to be passed as a matter of routine merely because the party has levelled allegations against the local police. The extra-ordinary power in handing over investigation to CBI must be exercised cautiously and in exceptional circumstances. In State of West Bengal & Ors. vs. Committee for Protection of Democratic Rights, West Bengal & Ors., (2010) 3 SCC 571 2010 Indlaw SC 133, a Constitution Bench of this Court held as under:-\n\"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Arts. 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.\"\n16. Legal education has a direct impact on the prestige of the legal profession. It is a matter of concern that such an unfortunate incident should have happened within the precincts of Law College, Chennai which has produced many eminent lawyers and legal luminaries. We feel that the matter should have been addressed by the police and the State with great concern and promptitude. Though the matter was not proceeded in the way in which it should have been proceeded with, we feel that at this distant point of time, it is not necessary to hand over the investigation to CBI or to SIT. The reason being criminal cases have been registered and charge-sheets are also filed and departmental action was also initiated against the police personnel and punishment though may be nominal was imposed on those police personnel. Since charge-sheets in all three cases have already been filed before the VIIth Metropolitan Magistrate Court, George Town, Chennai, one of which is already taken on file, in our view, it would suffice if we direct the VIIth Metropolitan Magistrate Court, George Town, Chennai to proceed with the matter expeditiously.\n17. Learned counsel for petitioners Mr. Prashant Bhushan laid scathing attack on SHRC and submitted that SHRC was impervious to the incident as well as harassment to the petitioners and SHRC did not promptly take steps regarding Law College incident. Learned counsel also submitted that the office of a Chairperson of Tamilnadu State Human Rights Commission has been remaining vacant for more than three years.\n18. Insofar as the grievance of the petitioners on the non- taking of action by SHRC, the learned counsel for SHRC submitted that the office of Chairperson of SHRC is lying vacant since August 2011 and SHRC was finding it difficult to take follow up action. Having regard to the said submissions, we have asked the State of Tamilnadu to file its response as to the non-filling up of the office of Chairperson of SHRC and the State has filed its Status Report on 8.9.2014 with regard to the appointment of Chairperson to SHRC.\n19. In the Status Report, it is stated that office of Chairperson, Tamilnadu State Human Rights Commission has been lying vacant since 27.8.2011 due to non-availability of suitable candidates. It is stated that in response to the request of the State Government, High Court of Madras has sent the list of retired Chief Justices who were the Former Judges of the Madras High Court along with their date of birth and their present addresses. According to the State, in the list sent by the Registrar General, High Court of Madras most of the candidates are either already appointed to different Appellate Tribunals or equivalent post outside Tamilnadu or have attained the age limit of 70 years or not having any familiarity with the language and culture of Tamilnadu and it was almost impossible to find a suitable candidate for the post of Chairperson, SHRC, Tamilnadu. It is stated that in terms of S. 25(1) of the Protection of Human Rights Act 1993, Order dated 4.12.2013 was issued to Ms. Jayanthi, IAS (Retd.) Member to act as the Chairperson in State Human Rights Commission, Tamilnadu until the appointment of a new Chairperson to the Commission.\nIt is further stated that in this regard Government of Tamilnadu has proposed to Government of India that a suitable amendment to S. 21(2)(a) of Protection of Human Rights Act, 1993 (for short 'the Act') could be made to make eligible retired Judges of High Court with a minimum experience of seven years as a Judge of the High Court for the post of Chairperson, SHRC, Tamilnadu and such proposal is under consideration of the Government of India. Status Report filed by the State refers to various letter correspondence by the State with Union of India in this regard.\n20. We do not wish to go into the niceties of the proposal made by the State of Tamilnadu requesting for suitable amendment to S. 21(2)(a) of the Act. We confine our focus only with regard to the vacancy of office of Chairperson, SHRC remaining vacant for quite some time.\n21. Protection of Human Rights Act 1993 has been enacted to provide for better protection of human rights by constituting a National Human Rights Commission and also State Human Rights Commission and Human Rights Courts. S. 2(1)(d) of the Act defines \"human rights\" as the rights relating to life, liberty, equality, dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. The above rights are traceable to Part III of the Indian Constitution guaranteeing Fundamental Rights and particularly Articles 14, 19, 20, 21, and 22. Chapter V of the Act consisting of Ss. 21 to 29 deals with the Constitution of State Human Rights Commission and its functions thereto. State Commission consists of a Chairperson who has been a Chief Justice of a High Court and four Members. The Act has put in place various remedial measures for prevention of any human rights violations and confers power upon the NHRC/SHRC to inquire suo motu or on a petition not only of violations of human rights or abetment thereof or even negligence exhibited by a public servant in preventing such violations. The statute has conferred wide range powers upon NHRC/SHRC. The Commission is therefore required to be constituted with persons who have held very high Constitutional offices earlier so that all aspects of good and adjudicatory procedures would be familiar to them. Having regard to the benevolent objects of the Act and the effective mechanism for redressal of grievances of the citizens against human rights violations, the office of Chairperson of SHRC cannot be allowed to remain vacant for a long time. State of Tamilnadu has always shown zero tolerance towards human rights violations and has always sent clear message of its commitment towards protection of human rights. We see no reason as to why the post of Chairperson, SHRC which is to be headed by a person who has been the Chief Justice of a High Court should remain vacant for more than three years. In our view, pending the State Government's request for amendment to S. 21(2)(a) of the Act which process will take long time, it will be in order if the State of Taminadu takes steps to fill up the vacancy of the post of Chairperson, SHRC, Tamilnadu in terms of S. 21(2)(a) by constituting a Search Committee at an early date.\n22. So far as the grievance of the petitioners as regards registration of false cases against them is concerned, it is stated that on the complaint lodged by Reception Officer of the Circuit House Coimbatore, a criminal case has been registered against the first petitioner in Crime No. 191/2009 in B4 Race Course Police Station, Coimbatore City u/s. 420 IPC. Organized Crime Unit (OCU) CB-CID has registered a case Crime No.1/2009 against the petitioners on the complaint of one Krishnakumar for the alleged act of cheating. In both the cases, charge- sheets have been filed before the Chief Judicial Magistrate Court, Coimbatore which were taken on file in CC 84/2010 and 83/2010. Both the petitioners have filed quash petitions u/s. 482 Cr.P.C. before the High Court of Madras to quash the charges against them in Criminal O.P.Nos.14609 & 14610/2011 and 14611 & 14612 /2011 and obtained interim stay and quash petitions are stated to be pending. Since the petitioners have already filed petitions u/s. 482 Cr.P.C., the petitioners are at liberty to raise all contentions before the High Court in those petitions filed by them.\n23. This writ petition is disposed of directing the VIIth Metropolitan Magistrate Court, George Town, Chennai to immediately take the cases on file relating to the Law College incident and expedite the trial and dispose of the cases expeditiously in accordance with law within a period of one year. The VIIth Metropolitan Magistrate shall file report regarding the progress of the cases to the High Court once in two months and we request the High Court to monitor the progress of the cases. In view of our discussion in State of Tamilnadu would do well if it takes appropriate steps to fill up the vacancy of the Chairperson, SHRC, Tamilnadu expeditiously.\nPetition disposed of\n"}
+{"id": "QbD7WWJSKk", "title": "", "text": "Secretary, Minor Irrigation and Rural Engineering v Sahngoo Ram Arya and Another\nSupreme Court of India\n\n7  May  2002\nC.A. Nos. 3358-59 of 2002 (Along with C.A. Nos. 3352-57 of 2002 and S.L.P.(C) Nos. 16496-97 of 2001)\nThe Judgment was delivered by : SANTOSH HEGDE, J.\nLeave granted.\n1. These two appeals arise out of an order made by the High Court of Judicature at Allahabad dated 16.3.2001 in Civil Misc. W.P. Nos. 24759 and 28512 of 1999. The original writ petitioner had filed a number of writ petitions challenging the various actions taken by the Department against him. In the said writ petitions he had made very serious allegations against Sri Markandey Chand who was then the Minister for Minor Irrigation and Rural Engineering Services in the Government of U.P. It is seen from the record that the said Minister had filed a counter affidavit denying the allegations levelled against him. In the said writ petitions, originally the High Court had passed certain interim orders staying the action initiated by the Department against which the Department had filed SLPs before this Court which challenge was allowed and this Court as per its order dated 3.4.2000 while directing the parties to maintain status quo as on the date of the said order, requested the High Court to hear and dispose of all the writ petitions within a period of 6 months from that date. After the said order of this Court, the High Court by its impugned order held that it was necessary to inquire into the allegations made against the said Minister. It directed the Central Bureau of Investigation (CBI) at Delhi to hold an inquiry into the allegations made against the said Minister (respondent No.2) as early as possible, preferably within 4 months from the date of the production of the certified copy of the impugned order.\n2. It is this order that is challenged in these appeals. Mr. Mukul Rohtagi, learned Additional Solicitor General, contended before us that the High Court could not have directed an inquiry by the CBI against the Minister concerned without coming to a conclusion that there was a prima facie case to hold such an inquiry which conclusion according to him ought to be based on the material on record which obviously means the allegations made in the writ petition as also the denial of the Minister concerned should also be taken into consideration. In support of his argument, he has placed strong reliance on the judgment of this Court in Common Cause, a Registered Society vs. Union of India & Ors. 1999 Indlaw SC 503 ). Mr. G.L. Sanghi, learned senior counsel appearing for the concerned Minister, has supported the above argument and has contended that there is not even an iota of truth in the allegations made against the Minister, hence, the High Court could not have directed an inquiry.\n3. Per contra, Mr. P.N. Misra, learned senior counsel appearing for the writ petitioner, pointed out that the allegations against the Minister are very serious and the same pertained to many incidents and similar allegations have been made against the Minister by a large number of aggrieved Government servants before the High Court in their respective writ petitions. He said that there was sufficient material to come to the conclusion that the allegations made against the Minister are genuine, thus, he supported the impugned order of the High Court.\n4. While none can dispute the power of the High Court u/art. 226 to direct an inquiry by the CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by the CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause (supra). This Court in the said judgment at paragraph 174 of the report has held thus:\n\"The other direction, namely, the direction to CBI to investigate\" any other offence\n\"is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of \"LIFE\" and \"LIBERTY\" guaranteed to a person u/art. 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of \"LIFE\" has been explained in a manner which has infused \"LIFE\" into the letters of Article 21\"\n5. It is seen from the above decision of this Court that the right to life u/art. 21 includes the right of a person to live without being hounded by the Police or the CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by the CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause (supra).\n6. Just to point out that there is no prima facie finding by the High Court, while directing an inquiry by the impugned order, we would like to extract the following few sentences:\n7. At page 8 of the impugned judgment, it is stated:\n\"It is also alleged that the petitioner is being harassed owing to the reason that he was not amenable to the illegal demands made by the Minister concerned\". The High Court further observed:\" We however, forbear from excoriating the Minister on the basis of what has been said in the said News Magazine at this stage\". Proceeding further, the Court observed:\" If the allegations in the writ petitions are correct, the rights of the respondents must be vindicated and the party at whose instance such orders have been issued in bad faith, his continuance in the office is not in public interest\". At page 9 of the judgment, the learned Judges observed.\" If the allegations made in the these and various other writ petitions are found to have any ring of truth, no sane person can claim that the affairs of the State are being run in accord with the Constitution.\"\n8. We make it clear that we have not expressed any opinion in regard to the merits of the allegations or the reply thereto because this is something which has to be done by the High Court in the first instance.\n9. The appeals are allowed and the impugned judgment is set aside. The matters are remanded to the High Court.\nS.L.P.(C) Nos. 5097-5102/2001:\n10. These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. W.P. No. 47130 of 2000 etc. on 1.2.2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Service Tribunal (the tribunal), and had permitted the writ petitioner therein to approach the tribunal and directed the tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the tribunal to decide the matter expeditiously.\n11. Mr. Sunil Gupta, learned counsel appearing for the petitioner, contended that the remedy before the tribunal under the U.P. Public Service Tribunal Act is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribunal has no authority to grant an interim order is no ground to by-pass the said tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy u/art. 226 of the Constitution but that is no ground to by-pass the said tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the tribunal. In the said view of the matter, the appeals are dismissed. No costs.\nSLP(C) Nos. 16496-97/2001:\n12. In view of our judgment in C.A. Nos. ...../2002@ SLP(C) Nos. 6126-27 of 2001, no further orders are necessary in these petitions. They are disposed of accordingly.\n"}
+{"id": "jQzW52Tdim", "title": "", "text": "Supdt. and Remembrancer of Legal Affairs, West Bengal v Anil Kumar Bhunja and Others\nSupreme Court of India\n\n23 August 1979\nCriminal Appeal No. 98 of 1973.\nThe Judgment was delivered by : Ranjit Singh Sarkaria, J.\n1. Whether the giving of fire-arms by a person holding a licence for repairing and dealing in firearms for repairs to mechanic who holds no such licence, but does the repair job at his workshop at a place different from the factory or place of business of the licence holder, amounts to \"delivery of those arms into the possession of another person\" within the contemplation of Section 29(b) of the Arms Act, 1959 (For short, called 'the Act'), is the principal question that falls to be answered in this appeal by special leave directed against a judgment, dated August 16, 1972, of the High Court of Calcutta. It arises in these circumstances:\nOn or about April 17, 1971, the Calcutta Police while investigating a case, went to premises No. 4, Ram Kanai Adhikari Lane in Calcutta, and, on the ground floor of the building, they discovered a workshop run by Mrityunjoy Dutta, who was then working on a re- volver. In the said premises, the police found several other guns, revolvers and rifles. All these fire-arms were seized by the police.\n2. Mrityunjoy Dutta claimed to have received one of the guns so seized from one Matiar Rahaman gun-licensee and the rest from respondents 1 to 4 for repairs. Mrityunjoy Dutta had no valid licence to keep or repair these fire-arms under the Act. Respondents 1 to 4, however, were holding licences under the Act to run the business of repairing and dealing in fire-arms.\n3. On April 17, 1970, the police charge-sheeted Mrityunjoy Dutta, Matiar Rahaman and respondents 1 to 4 to stand their trial in the Court of the Presidency Magistrate, in respect of offences under Sections 25(1) (a) and 27 of the Act. The trial Magistrate, while considering the question of framing charges, held that there were materials to make out a prima facie case under Section 25(1) (c) of the Act against Mrityunjoy Dutta and under Section 29(b) of the Act against Matiar Rahaman, and charged them accordingly. So far as respondents 1 to 4 are concerned, the Magistrate took the view that the giving of the arms to the accused Dutta, by respondents 1 to 4 for the limited purpose of repairs, did not amount to delivery of possession of those arms within the meaning of Section 29(b) of the Arms Act (Act IV/1959), and in the result, he discharged the respondents by an order, dated November 17, 1971.\n4. Aggrieved, the State of West Bengal filed a Criminal Revision against the Magistrate's order before the High Court, contending that delivery of the arms, into the possession of a person who did not have a valid licence for repairs of fire-arms, is not only a contravention of the provisions of Section 5 of the Act, but also amounts to delivery of fire-arms by the respondents into the possession of Mrityunjoy Dutta and, as such, the respondents were prima facie liable for an offence under Section 29(b) of the Act. The Division Bench of the High Court, who heard the Revision, dismissed it with the reasoning, that Respondents 1 to 4, could not be said to have delivered the fire-arms, concerned into the possession of Mrityunjoy Dutta within the meaning of Section 29(b) of the Act, because the respondents who possessed valid licences for repairs as well as for sale of fire-arms, had given only temporary custody of those arms to Mrityunjoy Dutta for the limited purpose of carrying the repair job, while the effective control over those arms all the time remained with the respondents. In its view, there is no delivery of possession of the fire-arms so long as control over the arms and the authority to use those arms is not transferred to the custodian.\nHence, this appeal.\n5. The whole case pivots around the interpretation and application of the term \"possession\", used in Section 29(b) of the Act.\nLearned counsel for the appellant-State contends that the question whether a person is in possession of an arm or had transferred and delivered it to another, is largely one of fact. It is submitted that in the instant case, there were three stark facts which more than any other, unmistakably showed that the respondents had given possession of these fire-arms to Mrityunjoy Dutta:\n(a) Mrityunjoy Dutta was not a servant or employee of the respondents, but was running his own business of repairing fire-arms.\n(b) The fire-arms were handed over to Mrityunjoy Dutta to be repaired at his own residence-cum-workshop which was not the respondents licensed place of business, and was in the exclusive control and occupation of Dutta.\n(c) Mrityunjoy Dutta had no licence for repairing or keeping fire-arms and the respondents were either aware of this fact or did not ascertain it before delivering the fire-arms to him. It is maintained that \"possession, within the purview of Section 29(b) means immediate possession, and consequently, delivery of even temporary possession and control to an unauthorised person falls within the mischief of the Section. It is further urged that the delivery of fire-arms for repairs to the unlicensed mechanic for repairs, to be carried out at a place other than the factory or place of business specified in the licence of the owners, will amount to an offence under Section 30 read with Section 5 of the Act also.\n6. As against this, Mr. Anil Kumar Gupta has addressed lengthy arguments to support the judgments of the Courts below. The sum and substance of his arguments is that the mechanic, Dutta, was only in temporary custody of these arms for the limited purpose of repairing them, as an agent of the owners, who being licensees in Form IX entitled to repair and keep these fire-arms, throughout remained in their lawful possession and control. It is maintained that the delivery of possession contemplated by Section 29(b) is something more than entrusting the arms to an agent for the limited purpose of repairs. In support of this contention, Mr. Gupta has cited several decisions. Particular reliance has been placed on Manzur Hussain v. Emperor Sadh Ram v. State; Emperor v. Harpal Rai; A. Malcom v. Emperor; Emperor v. Koya Hansji; Parmeshwar Singh v. Emperor 1933 Indlaw PAT 140; Gunwantlal v. State of Madhya Pradesh 1972 Indlaw SC 558; and Sullivan v. Earl of Caithness. Reference was also made to Halsbury's Laws of England, Vol. 25, Third Edition, page 874, and Salmond's Jurisprudence, 11th Edition.\n7. It was next contended that even if the term \"possession\" in Section 29(b) is susceptible of two interpretations, the one favourable to the accused be adopted. In this connection reference has been made to Woodage v. Moss.\n8. The last submission of Mr. Gupta is that since these criminal proceedings have been brooding over the heads of the respondents for the last eight years, this Court should not, even if it reverses the opinion of the courts below, direct the Magistrate to frame charges against the respondents and to proceed with the trial. It is emphasised that in any event, the offence disclosed against the respondents was purely technical. \"Possession\" is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of \"possession\" uniformly applicable to all situations in the contexts of all statutes. Dias & Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of \"possession\". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edition, 1966) caused by the fact the possession is not purely a legal concept. \"Possession\", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes)\n9. According to Pollock & Wright \"when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing\".\n10. While recognising that \"possession\" is not a purely legal concept but also a matter of fact; Salmond (12th Edition, page 52) describes \"possession, in fact\", as a relationship between a person and a thing.\nAccording to the learned author the test for determining\n\"whether a person is in possession of anything is whether he is in general control of it\".\n11. In Gunwantlal, this Court while noting that the concept of possession is not easy to comprehend, held that in the context of Section 25(a) of the Arms Act, 1959, the possession of a fire-arm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the Actual physical possession of the fire-arm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognised that whether or not the accused had such control or dominion to constitute his possession of the fire-arm, is a question of fact depending on the facts of each case. In that connection, it was observed:\n\"In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question\".\n12. With this guiding criterion in mind, the Magistrate had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the delivery of the fire-arms by the respondents into the possession of Mrityunjoy Dutta, without previously ascertaining whether the recipient had any licence to retain and repair those fire-arms within the contemplation of Section 29(b). It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh 1977 Indlaw SC 50, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of the offence.\n13. Now, in the instant case, at that initial stage, it was apparent from the materials before the Magistrate, that the basic facts proposed to be proved by the prosecution against the accused-respondents were as follows:\n(a) That the respondents held licences, inter alia, in Form IX for repairing and dealing in fire-arms at the place of business, factory or shop specified in the Column 3 of their licences.\n(i) The respondents handed over the fire-arms in question to Mrityunjoy Dutta for repairs.\n(ii) Mrityunjoy Dutta did not have any license for repairing or dealing in fire-arms;\n(iii) (a) Mrityunjoy Dutta was doing the repair job in respect of these fire-arms at his own residence-cum-workshop which was situated at a place different from the business places specified in the licences of the respondents.\n(b) The fire-arms in question were seized from the workshop-cum-house in the occupation and control of Mrityunjoy Dutta, when the latter was actually in the Act of repairing working on a revolver.\n14. There is nothing in these materials to show that at the time of the seizure of these fire-arms, any of the respondents or any Manager of their concerns, was found present and personally supervising the repair work that was being done by the mechanic, Mrityunjoy Dutta. These positive and negative facts, in conjunction with other subsidiary facts, appearing expressly or by implication from the materials which were before the Magistrate at that initial stage were, at least, sufficient to show that there were grounds for presuming that the accused-respondents had committed offences under Sections 29(b) and 30 of the Act. Facts (iii) (a) & (b) listed above, inferentially show that by handing over the fire-arms to Mrityunjoy Dutta to be repaired at the latter's independent workshop, the respondents had divested themselves, for the time being, not only of physical possession but also of effective control over those fire-arms. There is nothing in those materials to show that before handing over those firearms to Mrityunjoy Dutta for repairs, the respondents had done anything to ascertain that Mrityunjoy Dutta was legally authorised to retain those arms even for the limited purpose of repairing them.\nThus, prima facie the materials before the Magistrate showed that the respondents had delivered the fire-arms in question into the possession of Mrityunjoy Dutta, without previously ascertaining that he was legally authorised to have the same in his pos- session, and as such, the respondents appeared to have committed and offence under Section 29(b) of the Act. Further, by allowing the fire-arms to be removed to a place other than the places of their business or factory specified in Column 3 of their licences in Form IX, the respondents appear to have contravened condition 1(c) of their licence, the material part of which reads as under:\n\"(c) This licence is valid only so long as the licensee carries on the trade or business in the permises shown in Column 3 thereof.. \"\n15. Contravention of any condition of the licence amounts to an offence punishable under Section 30 of the Act. In sum, the materials before the Magistrate, prima facie disclosed the commission of offences under Sections 29(b) and 30 of the Act by respondents 1 to 4. The Magistrate was thus clearly in error in discharging these accused-respondents. We do not think it necessary to notice and discuss in detail the various decisions cited by the counsel at the bar, because, as mentioned earlier, the question whether a particular person is or continues to be in possession of an arm (in the context of the Act) is, to a substantial extent, one of fact. This question, often resolves into the issue: whether that person is or continues to be, at the material time, in physical possession or effective control of that arm. This issue, in turn, is a mixed issue of fact and law, depending on proof of specific facts or definite circumstances by the prosecution.\n16. At this preliminary stage, therefore, when the prosecution has yet to lead evidence to prove all the facts relevant to substantiate the ingredients of the charge under Section 29(b) levelled against these respondents, a detailed discussion of the principles enunciated in the cited decisions, is apt to partake of the character of a speculative exercise. It will be sufficient to say in passing that almost all the decisions of the High Courts cited before us were cases under the 'Old' Arms Act (Act 11 of 1878). The ratio of cases decided under the 'Old' Act should not be blindly applied to cases under the Act of 1959 which has, in several aspects modified or changed the law relating to the regulation of arms. For instance under the 'Old' Act, repairing of arms without a licence, was not punishable, as 'repair' was different and distinct from manufacture. In Murli v. Crown and Tola Ram v. Crown it was held that a person in temporary possession of arms without a licence, for repairing purposes was not guilty under Section 19 of the Act of 1878. But section 5 of the present Act of 1959, has materially altered this position by requiring the obtaining of a licence for-repairing fire-arms (or other arms if so prescribed).\nFurther, the word \"keep\" occurring in Section 5 of the 'Old' Act has been replaced by the words \"have in his possession\" in the present Section. Then in three of these cases, namely, Manzur Husain, Sadh Ram v. State, Emperor v. Harpal Rai, the license-holder sent his licensed firearm for repairs through a person who had the license-holders' oral authority, expressly or impliedly given, to carry it to the repairer. It was held that the carrier, though he held no licence to keep the fire-arm, could not be said to be in \"possession\" of it, nor could the license-holder be said to have parted with the \"possession\" of the fire-arm or delivered its possession to an unauthorised person. Similarly, in one of the cases cited, the license-holder sent his fire-arm to the Magistrate through his servant or agent for getting the licence renewed. In that case also, it was held that the servant was not guilty of any offence for having in his possession or \"carrying\" a gun without a licence. The possession was held to be still with the license-holderowner of the weapon.\n17. The rule enunciated in these decisions has been given a limited recognition in the Proviso to Section 3 of the Act of 1959. Under this Proviso, if a licensed weapon is carried to an authorised repairer by another having no licence, he will not be guilty for carrying that fire-arm, if he has a written authority of the license-holder for carrying that weapon to a repairer. Similarly, for carrying a licensed fire-arm to the appropriate authority for renewal of the license, written authority of the owner of the weapon is essential to bring him within the protection of the Proviso. In some of these cases referred to by the counsel, a person was carrying or was in custody of a licensed weapon for use by the licensee. Now, the Proviso to Section 3 of the present Act, protects such carriers or custodians of weapons for use by the license holder, only if they do so in the presence of the license-holder concerned. We have referred, by way of example, some of these changes brought about by the Act of 1959, only to impress on the trial court that in considering the application of the ratio of the cases decided under the Act of 1878, to those under the present Act great caution and discernment is necessary.\n18. For all the reasons aforesaid, we allow this appeal and set aside the orders of the Courts below whereby respondents 1 to 4, herein, were discharged. Although offences under Section 29(b) and 30 of the Act are summons cases, the Magistrate has followed the warrant procedure, obviously because an offence under Section 25 of the Act, for which Mrityunjoy Dutta was being jointly tried with Respondents 1 to 4, was a warrant case. Moreover, trial of a summons case as a warrant case does not amount to an illegality, but is a mere irregularity that does not vitiate the trial unless there is prejudice.\nWe therefore, send the case back to the trial Magistrate with the direction that he should frame charges in respect of offences under Sections 29(b) and Section 30 of the Act against the accusedrespondents 1 to 4 and proceed further with the trial in accordance with law. We decline the submission made on behalf of these respondents that on account of their prolonged harassment and expense, which are the necessary concomitants of protracted criminal proceedings extending over eight years, they should not be put on trial now for offences which, according to the counsel, are merely technical. Even so, we think, this is a circumstance to be taken into consideration by the trial court in fixing the nature and quantum of sentence, in the event of the accused being found guilty.\n19. Before parting, with this judgment, we will however, set it down by way of caution that the Magistrate while assessing the evidence and recording his findings on its basis with regard to proof or otherwise the factual ingredients of the offences with which the accused may stand charged, shall not allow himself to be unduly influenced by anything said in this judgment in regard to the merits of the case.\nAppeal allowed\n"}
+{"id": "1v9r86eNwX", "title": "", "text": "Sh. Satish Mehra v Delhi Administration\nStatus:  \n\t\t\t\t\t\t\t Negative Judicial Treatment\nSupreme Court of India\n\n31 July 1996\nCr.A. No. 1385 of 1995\nThe Judgment was delivered by: K. T. Thomas, J.\n1.  Some eerie accusations have been made by a wife against her husband. Incestous sexual abuse, incredulous ex facie, is being attributed to the husband. Police on her complaint conducted investigation and laid charge sheet against the appellant, who has filed this Criminal Appeal special leave as he did not succeed in his approach to the High court at the F.I.R. stage itself.\n2.  More details of the case are these: Appellant (Satish Mehra) and his wife (Anita Mehra) were living in New York ever since their marriage. They have three children among whom the eldest daughter (Nikita) was born of 2nd April, 1988. Before and after the birth of the children relationship between husband and wife was far from cordial. Husband alleged that his wife, in conspiracy with her father, had siphoned off a whopping sum from his bank deposits in India by forging his signature. He also alleged that his wife is suffering from some peculiar psychiatric condition. He approached a court at New York for securing custody of his children. On 31.10.1992 his wife left his house with the children and then filed a complaint with Saffolk County Police Station (United States) alleging that her husband had sexually abused Nikita who was then aged four. United States police at the local level moved into action. But after conducting detailed investigation concluded that the allegations of incestuous abuse are untrue.\n3.  On 7.3.1993, appellant's wife (Anita) returned to India with her children. In the meanwhile Family Court at New York has ordered that custody of the children be given to the husband and a warrant of arrest was issued against Anita for implementation of the said order.\n4.  The battle field between the parties was thereafter shifted to India as she came back home. On 19.3.1993, Anita filed a complaint to the \"Crime Against Women Cell\" (CAW Cell for short) New Delhi in which she stated that her husband committed sex abuses with Nikita while they were in United States and further alleged that appellant committed certain matrimonial misdemeanour on his wife. But the complain was close but want of jurisdiction for the CAW Cell to investigate into what happened in United States. Appellant returned to India on 127.1993 and thereafter filed a petition for a writ of Habeas Corpus for securing the custody of the children.\n5.  The present case is based on a complaint filed by Anita before Greater Kailash Police station on 14.8.1993. FIR was prepared and a case was registered as Crime No. 197/93 for offences u/ss. 354 and 498-A of Indian Penal Code. On 25.8.1993, the investigating officer moved the Sessions Court for adding S. 376 of the IPC also. The case was charge sheeted by the police and it was committed to the Court of Sessions.\n6.  As committal proceedings took place during the pendency of the Special Leave Petition, this Court directed the Sections judge on 22.2.1996 \"to apply its mind to the case committed and see whether a case for framing charge/charges has been made out or no\". Learned Session judge, by a detailed order, found that no charge under Section 498-A IPC could be framed against the appellant, but charge for offences u/ss. 354 and 376 read with S. 511 of IPC should be framed against him. Accordingly, the charge has been framed with the said two counts.\n7. First count in the charge is that appellant had outraged the modesty of his minor daughter aged about 3 years during sometime between March and July, 1991 at D- 108, East of Kailash, New Delhi by fondling with her vagina and also by inserting bottle into it and thereby committed the offence u/s. 354 of the IPC. Second count in the charge is that he made an attempt to commit rape on the said infant child (time and place are the same) and thereby committed the offence under S. 376 read with S. 511 of the IPC.\n8.  At this stage it is superfluous to consider whether the FIR is liable to be quashed as both sides argued on the sustainability of the charge framed by the Sessions Judge. We are, therefore, considering the main question whether the Sessions Court should have framed the charge against the appellant as it did now.\n9.  Considerations which should weigh with the Sessions Court at this state have been well designed by the Parliament through S. 227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:\n\"227. Discharge. - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution there is not sufficient ground for proceeding accused and record his reasons for so doing.\"\n10. S. 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed and offence the procedure laid down therein has to be adopted. When those two section are put juxtaposition with each other the test to be adopted becomes discernible: Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is \"sufficient ground for proceeding\". (Vide State of Bihar v. Ramesh Singh, AIR 1977 SO 2018 1977 Indlaw SC 50, and Supdt, & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, 1979 Cr. L.J. 1390: AIR 1980 SC 52 1979 Indlaw SC 548).\n11.  In Alamohan Das v. State of West Bengal (AIR 1970 SC 863) 1968 Indlaw SC 197 Shah, j. (as he then was) has observed in the context of considering the scope of committal proceedings u/s. 209 of the old Code of Criminal Procedure (1898) that a Judge can sift and weight the materials on record by seeing whether there is sufficient evidence for commitment. It is open to the Court to weight the total effect of the evidence and the documents produced to check whether there is any basic infirmity. Of course the exercise is to find out whether a prima facie case against the accused has been made out.\n12.  In Union of India v. Profullakumar- 1979 Cr.L.J. 154 1978 Indlaw SC 252, this Court has observed that the Judge while considering the question of framing the charge has \"the undoubted power to sift and wight the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out\". However, there Lordships pointed out that the test to determine a prima facie case would naturally dependent upon the facts of each case and it is difficult to lay down a rule of universal application. \"By and large, however, if who view are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspension, the Judge would be fully within his right to discharge the accused\". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage.\n13.  An incidental question which emerges in this context is whether the Session Judge can look into any material other than those produced by the prosecution. S. 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The Next provisions enjoins on the Session Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider\n(1) the record of the case and\n(2) the documents produced there with.\n14.  He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone? Similar situation arise u/s. 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two State the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next State. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the \"ground\" may be any valid ground including insufficiency of evidence to prove charge.\n15.  The object of providing such an opportunity as is envisaged in S. 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings.  Hence, we are of the view that Sessions Judge would be within his powers to consider even material which the accused may produce at the stage contemplated in S. 227 of the Code.\n16.  But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceedings at the stage of S. 227 of the Code itself.\n17.  In the present case learned Session Judge has missed certain germane aspects. Apart from the seemingly incredulous nature of the accusations against a father that he molested his infant child (who would have just passed her suckling stage the) the Sessions Judge out not to have overlooked the following telling circumstances.\n18.  The complaint made by her with the New York police that her husband committed sexual offences against her 18 months old female child was investigated by the New York police and found the complaint bereft of truth hook, line and sinker. The present charge is that the appellant committed such offences against the same child at East Kailash, New Delhi sometime during March to July, 1991. There is now no case of what happened in United States. There is now no case of what happened in United States. The Sessions Judge should have noted that appellant's wife has not even remotely alleged in the complaint filed by her on 19.3.1993 before CAW Cell , New Delhi that appellant has done anything like that while he was in India. Even the other complaint. petition (on which basis the FIR was prepared) is totally silent about a case that appellant did anything against his daughter anywhere in India.\nwhen we perused the statement of Anita Mehra (second respondent) we felt no doubt that the has been brimming with acerbity towards the petitioner on account of other causes. She describes her marital life with petitioner as 'extremely painful and unhappy from the very inception\". She complains that petitioner has \"a history of irrational outbursts of temper and violence\". She accused him of being alcoholic and prone to inflicting server physical violence on her form 1980 onwards. Thus her attitude to the petitioner, even de hors the allegation involving the child, was vengeful. We take into account the assertion of the of the petitioner that the present story involving Nikita was concocted by the second respondent to wreak her vengeance by embroiling him in serious criminal cases in India so that the could be nailed down here and prevent him from going back to U.S.A.\n19. While hearing the arguments we ascertained whether the spouses could settle their differences. Second respondent, who to was present in court, made an offer through her counsel that she could agree for annulling the criminal proceedings against the petitioner on the condition that he should withdraw his claims on the bank deposits and would also relinquish his claim for custody of the children, and further he should concede for a divorce. In response to the said conditional offer, petitioner agreed to give up all his claims on the large amounts in bank deposits, and further agreed to have the divorce. But he stood firm that on no account custody of the children could go to the second respondent but if made to, subject to his rights of visitation. This, he said, is because he is convinced that second respondent is unsuitable to be entrusted with the care of the children.\n20.  In the above context petitioner drew our special notice to a medical report issued by Dr. Prabha Kapoor (Children Medical Centre, Jorbagh, New Delhi) On 26.7.1992. It is stated in report, that Nikita was brought to the doctor by the second respondent and on examination of the genetals of the child the doctor noticed \" a wide vaginal opening -wider than would be expected of her age group.\" On the strength of the aforesaid medical report, petitioner made a frontal attack on second respondent, alleging that in order concoct medical evidence against him the little child's genitals would have been badly manipulated by its mother. To substantiate this allegation he drew our attention to the U.S. police report, in which there is mention of a medical examination conducted on Nikita by a U.S. doctor (Dr. Gordon) on 24.11.92.\n21.  That doctor pointed out that there was absolutely no indication of any sexual abuse when the child was physically examined. If the medical examination done on the child in November, 1992 showed such normal condition, petitioner posed the question -who would have meddled with the child's genitals before 26.7.93, to case such a widening of the vaginal office? (We now remember again that, as per present case, the last occasion when the petitioner should have abused the child was in July, 1991).\n22. The aforesaid question, posed by the petitioner in the context of expressing grave concern over what the mother might do with the little female child for creating evidence of sex abuse, cannot be sideline by us in considering whether the case should proceed to the trial stage.\n23.  Petitioner invited out attention to the answers which Mrs. Veena Sharma (of CAWC) has elicited from Nikita, a verbatim reproduction of which is given in the counter affidavit filed by the second respondent. The said interrogation record reveals that Mrs. Veena Sharma has practically put on the tongue of the little girl that her father had molested her. The following questions and answers can bring the point home the questions. The questioner asked the child \"what your dady did with you\" and the child answered that he put his finger (and showed her private part). Not being satisfied with the answer the next question put to the child was \"Dady puts what else\". Then Nikita answers \"Dady puts his bottle\".\n24. We noticed with disquiet that the questioner drew the picture of the petitioner -face body and then asked certain questions such as \"where is papa's bottle? Is it on the cupboard?\" The child kept looking at the drawn sketch and pointed to the part between legs. Questioner then asked if anything was missing in the picture, to which Nikita Answered \"glesses\". After the child again pointed to the private parts between the legs, the questioner wanted the child to draw \"papa's bottle\". But then the child told her \"you do it.\" The questioner at the stage had the temerity to draw the picture of the private parts of child's father. We are much disturbed at the manner in which the little child was interrogated by the said officer of CAW Cell. At any rate we have no doubt that the purpose of such questions was to lead the child unmistakably to the tutored answers.\n25.  Even overlooking all the inherent infirmities shrouding the testimony of a tiny tot speaking about what her further did when she was aged 3 and even ignoring the appellant's persistent submission that the little child was briskly tutored by her mother to speak to the present version, There is no reasonable prospect of the sessions court relaying on such a testimony to reach the conclusion that the prosecution succeeded in proving the offence charged beyond all reasonable doubt.\n26.  Over and above that, what would be the consequence if this nebulous allegation is allowed to proceed to the trial stage. We foresee that Nikita, the child witness, now eight years and four month old, mus necessarily be subjected to cross-questions involving sex and sex organs. The traumatic impact on the child when she would be confronted by volley of questions dealing with such a subject is a matter of concerned to us. We cannot brush aside the submission of the appellant that such an ordeal would inflict the appellant that such an ordeal would inflict devastating impairment on the development of child's personality. Of course, if such a course is of any use to the cause of justice, we may have to bear with it as an inevitable course of action to be resorted to. But in this case, when the trial is going to be nothing but a farce, such a course of action should not be allowed to take place on account of the impeding consequences befalling an innocent child.\n27. After adverting to the above aspects and bestowing our anxious consideration we unhesitatingly reach the conclusion that there is no sufficient ground to proceed to the trial in this case.\n28.  We, therefore, quash the proceedings and the charge framed by the Sessions Judgement and discharge the appellant. The appeal would stand allowed.\nAppeal allowed.\n"}
+{"id": "ld6DYyeNdj", "title": "", "text": "Niranjan Singh Karam Singh Punjabi Andors Etc. Etc. v Jitendra Bhimaraj Bijje And Ors. Etc. Etc.\nSupreme Court of India\n\n7 August 1990\nCriminal Appeal Nos. 703, 7 12 of 1989 and 13 of 1990\nThe Judgment was delivered by : A. M. Ahmadi, J.\n1.  These three appeals arise out of the charge levelled by the police against the five petitioners of the above special leave petition u/s. 3 of the Terrorists and Disruptive Activities (Prevention) Act, 1987, (hereinafter called 'the Act'), Sections 302, 307 read with Sections 147, 148 and 149 IPC and S. 37 of the Bombay Police Act, 1951, for the murder of one Raju alias Avtar Singh, son of the appellant of Criminal Appeal No. 703/89, and for injuries caused to his companion Keshav Vitthal, the first informant. The facts giving rise to these proceedings are as under:\n2.  On the afternoon of the 12th July, 1989 when Raju and his companion Keshav were proceeding on a motor-cycle at about 3.00 p.m. they were intercepted by the accused Jitendra and one another known as a wrestler. Following some altercation and heated exchange of words between them, the other three accused persons arrived at the spot. Two of them were armed with knives and the third possessed an iron-rod. On seeing them Keshav who was on the pillion seat took to his heels whereupon Raju who was in the driver's seat abandoned the motor-cycle and ran in another direction. Two of the accused persons ran after Raju while the others including the wrestler chased Keshav. On being over-taken accused Vijay gave a knife blow on the chest of Keshav and his companion Santosh dealt blows with the iron-rod. Thereafter all the three fled from the scene of occurrence. The Other two who had chased Raju are alleged to have killed him as he was found lying in an unconscious condition on the road. Both the injured were removed to the hospital. Raju succumbed to the injuries soon after reaching the hospital. Keshav, however, responded to medical treatment and has survived to give evidence.\n3.  On the same day at about 5.30 p.m. the first information report was lodged by the injured Keshav. On the basis thereof an entry was made in CR No. 138 of 1989 and a case u/s. 302 and 307 read with Sections 147, 148 and 149 IPC and S. 37 of the Bombay Police Act was registered. The accused were arrested on 15th July, 1989 and were taken on remand for 9 days which period was extended upto 29th July, 1989 on which data the Investigating Officer invoked S. 3 of the Act. On 3rd August, 1989 the accused moved an application in the Designated Court, Jalgaon, for bail, inter alia, contending that the provisions of the Act had been wrongly and maliciously invoked. The said application was heard and decided by the Designated Court on 2nd September, 1989 which took the view that S. 3 of the Act was wrongly applied. Against that order the State of Maharashtra has preferred Criminal Appeal No. 712/89. As the accused were directed to approach the regular court, they moved two bail applications before the Fourth Additional Sessions Judge, Ahmadnagar.\n4. The said bail applications were, however, rejected on 25th September, 1989. Against the said rejection the accused approached the High Court. While those matters were pending in the High Court, the prosecution submitted a charge-sheet against the accused in the Designated Court at Jalgaon. Thereupon the High Court rejected the applications. The accused again approached the Designated Court for bail. The Designated Court once again came to the conclusion that, in the facts and circumstances of the case, S. 3 of the Act had no application and discharged the accused on that count u/s. 227 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code'). By the said impugned order of 27th October, 1989 the case was ordered to be transferred to the Court of Sessions, Ahmadnagar, on the other charges and the accused were granted liberty to move that court for bail. Against the said order Criminal Appeal No. 703/89 has been preferred by Raju's father while the State of Maharashtra has filed Criminal Appeal No. 13/90. Thereupon, the accused approached the High Court for bail but the High Court rejected their application and directed early hearing of the case. Special leave petition No. 2459/ 89 is preferred by the original accused against the said order.\n5.  The Act was enacted to make special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. S. 2(d) defines the expression 'disruptive activity' to have the meaning assigned to it in s. 4. S. 2(h) defines the expression 'terrorist act' to have the meaning assigned to it u/s. 3(1) of the Act. The relevant part of S. 3(1) provides that whoever, with intent (i) to overawe the Government as by law established or (ii) to strike terror in the people or any section of the people or (iii) to alienate any section of the people or (iv) to adversely affect the harmony amongst different sections of the people, does any act or thing by using any of the lethal weapons mentioned therein in such a manner as to cause death of/or injuries to any person or persons, commits a terrorist act. S. 3(2) lays down the penalty for the commission of such an act. S. 4(1) prescribes the penalty for indulging in any disruptive activity. S. 4(2) defines a disruptive activity to mean any action taken in whatever manner\n(i) which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or (ii) which is intended to bring about or supports any claim, whether directly or indirectly, for the cession of any part of India or the secession of any part of India from the Union. S. 6 provides enhanced penalty for aiding any terrorist or disruptionist. Part III of the Act creates the machinery for trying terrorists and disruptionists charged with the commission of any offence under the Act. S. 9 empowers the Central Government as well as the State Governments to constitute by notification one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification. S. 9(6) provides that a person shall not be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is immediately before such appointment a Sessions Judge or an Additional Sessions Judge in any State. S. 11 says that every offence punishable under the provisions of the Act or the rules made there under shall be tried by a Designated Court constituted under S. 9(1) of the Act. S. 12(1) is relevant for our purpose and reads as under:\n\"When trying any offence, a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence.\"\n6. S. 14 sets out the procedure and powers of Designated Courts. Sub-s. 3 of the S. 14 is relevant for our purpose. It reads as under:\n\"Subject to other provisions of this Act. Designated Court shall for the purpose of any offence have all the powers of a Court of Sessions and shall try such offences as if it were a Court of Sessions so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Sessions.\"\n7. S. 16 offers protection to witnesses. S. 17 gives procedence to trials by Designated Courts. S. 18 empowers the Designated Courts to transfer cases to regular Courts. This Section reads as under:\n\"Where, after taking cognizance of any offence, a Designated Court is of opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.\"\n8. S. 19 provides for an appeal to the Supreme Court both on facts and on law from any judgment, sentence or order, other than an interlocutory order, of a Designated Court. S. 20(1) makes an offence under the Act or the rules, a cognizable one. Sub-s. (8) of s. 20 lays down that notwithstanding anything contained in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless the public prosecutor has been given an opportunity to oppose his release and where he opposes his release, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. S. 21 mandates the Designated Court to presume, unless the contrary is proved, that the accused has committed an offence under S. 3(1) if one of the four things set out in cls. (a) to (d), is proved. S. 22 permits identification of the offender on the basis of his photograph. S. 28 empowers the Central Government to make rules on any of the matters set out in cls. (a) to (f) of sub-s. (2) thereof. Such rules have to be laid before both the Houses of Parliament. This in brief is the scheme of the Act.\n9. U/s. 14(3) of the Act a Designated Court is conferred with the powers of a Court of Sessions and is required to try any offence under the Act 'as if it were' a Court of Sessions. The procedure which it must follow at the trial is the one prescribed in the Code fox the trial of cases before a Court of Sessions. This is of course subject to the other provisions of the Act which means that if there is any provision in the Act which is not consistent with the procedure stipulated in the Code for such trials, it is the procedure in the Act that shall prevail. The procedure for trial before a Court of Sessions is set Chapter XVIII of the Code. S. 225 places the public prosecutor in charge of the conduct of the prosecution. S. 226 requires him to open the prosecution case by describing the charge against the accused and stating by what evidence he proposes to bring home the guilt against the accused. Once that is done the Judge has to consider whether or not to frame a charge. S. 227 of the Code reads as under:\n\"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub-. missions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.\"\n10.  Under this section a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by S. 228 of the Code. Once the charge is framed the trial must ordinarily end in the conviction or acquittal of the accused. This is in brief the scheme of Ss. 225 to 235 of the Code.\n11.  Section 227, introduced for the first time in the New Code, confers a special power on the Judge to discharge an accused at the threshold if 'upon consideration' of the record and documents he considers 'that there is not sufficient ground' for proceeding against the accused. In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.\n12.  The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution.\n13. In the State of Bihar v. Ramesh Singh, [1978] 1 SCR 257 1977 Indlaw SC 50 this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229 1978 Indlaw SC 252, this Court after considering the scope of s. 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post-office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face-value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under:\n\"(1) That the Judge while considering the question of framing the charges under s. 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.\n(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.\n(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his right to discharge the accused.\n(4) That in exercising his jurisdiction under s. 227 of the Code of Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.\"\n14.  Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 274 1979 Indlaw SC 548 this Court observed in paragraph 18 of the Judgment as under:\n\"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of S. 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion rounded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence\".\n15.  From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.\nthe Act is a penal statute. Its provisions are drastic in that they provide minimum punishments and in certain cases enhanced punishments also; make confessional statements made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in cls. (a) to (d) of sub-s. (1) of S. 21. Provision is also made in regard to the identification of an accused who is not traced through photographs. These are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism. These provisions are a departure from the ordinary law since the said law was found-to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities.\n16. There can, therefore, be no doubt that the Legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same. The legislature, therefore, made special provisions which can in certain respects b.e said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. It is wellsettled that statutes which impose a term of imprisonment for what is a criminal offence under the law must be strictly construed. In Usmanbhai Dawoodbhai Memon & Ors. v. State of Gujarat, [1988] 2 SCC 271 1988 Indlaw SC 405 this Court in paragraph 15 of the judgment observed as under:\n\"the Act is an extreme measure to be resorted to when the police cannot tackle the situation under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not ordinarily be resorted to unless the government's law enforcing machinery fails.\"\n17.  To put it differently the ratio of the decision is that the provisions of the Act need not be resorted to if the nature of the Activities of the accused can be checked and controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that facts emerging there from prima facie constitute an offence within the letter of the law. When a statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that the material placed on record and the documents relied on give rise to a strong suspicion of the accused having committed the crime alleged against him.\n18.  We may now proceed to apply the law stated above to the facts of the present case. The prosecution case against the five accused persons is that they formed an unlawful assembly, killed Raju and injured keshav 'with intent to strike terror in the people or any section of the people' i.e. the residents of the locality, by the use of lethal weapons such as knives and iron-rods and thereby committed offences punishable under S. 3(1) of the Act read with the offences under  the Penal Code and the Bombay Police Act. When the complaint was lodged by the injured Keshav on 12th July, 1989 no offence u/s. 3(1) of the Act was registered. The offence u/s. 3(1) of the Act was introduced for the first time on 29th July, 1989. That means that between 12th July, 1989 and 29th July, 1989 the Investigating Officer collected evidence which enabled him to register an offence u/s. 3(1) of the Act. When the first bail application was disposed of on 2nd September, 1989, the Designated Court came to the conclusion that prima facie s. 3(1) of the Act had no application. In taking that view the Designated Court examined the statements of witnesses on which reliance was placed to support the prosecution case that s. 3(1) of the Act was attracted. It may be stated that accused Santosh Rathod runs a cycle repair shop. On the day previous to the occurrence the deceased Raju had gone to the cycle shop as his tube was punctured. At that time accused Jitendra and some others were present at the cycle shop and in their presence accused Jitendra is alleged to have stated as under:\n\"Presently Raju and Keshav are having dominance in the town. We would become dadas of the town upon taking lives out of them. Then there would not be any rival to us in this town. Upon commission of murder of Raju and Keshav on account of tenor the people would be scared.\"\n19.  This is unfolded in the statements of Raju Narain, Sukharam Shinde and Bhau Saheb. Thus according to the prosecution the genesis of the crime was to gain supremacy in the underworld by eliminating the members of the rival gang. Ram Lokhande speaks about the incident in question and states that he had heard the assailants stating that on the elimination of Raju and Keshav they will become the Dadas and no one will dare to raise his voice against them. Bhika spoke about the previous incident on the same day at about 11.30 a.m. which shows that there was rivalry between the two gangs. Mr. Masodkar, the learned counsel for the State Government, as well as the appellant of criminal Appeal No. 703/89, therefore, contended that the Acts of violence were perpetrated with intent to strike terror in the people at large and in particular the residents of the locality in which the crime was committed. Our attention was also drawn to certain statements of witnesses to the effect that some of the accused persons were related to the members of the Shiv Sena party. The Designated Court came to the conclusion that the material placed before it and the statements recorded by the Investigating Officer did not disclose the commission of an offence under S. 3(1) of the Act. According to the Designated Court the intention of the accused persons was not to strike terror in the people or a section of the people but only to eliminate Raju and Keshav with a view to gaining supremacy in the underworld. The learned Judge presiding-over the Designated Court then proceeds to add as under:\n\"True it is that few people might have been terror-striken and terror might have been the fall out of naked act, but to strike the terror amongst people was not the object of this naked act. If at all people are getting terror-striken, it is those few people who live by the crime and not the people law abiding majority of citizens. Going by these statements there is nothing more to this crime than a strife between two warring factions staking claim to the supremacy of underworld.\"\n20.  The learned Judge also came to the conclusion that there was nothing on record to show that the Government's law enforcing machinery had failed and it had become necessary to resort to the drastic provisions of the Act with a view to combating the menace of terrorism.\n21.  We have carefully considered the statements of the witnesses on which the prosecution relies in support of its contention that the accused had committed an offence u/s. 3(1) of the Act. We think that the Designated Court was right in coming to the conclusion that the intention of the accused persons was to eliminate Raju and Keshav for gaining supremacy in the underworld. A mere statement to the effect that the show of such violence would create terror or fear in the minds of the people and none would dare to oppose them cannot constitute an offence u/s. 3(1) of the Act. That may indeed be the fail out of the violent act but that cannot be said to be the intention of the perpetrators of the crime. It is clear from the statement extracted earlier that the intention of the accused persons was to eliminate the rivals and gain supremacy in the underworld so that they may be known as the bullies of the locality and would be dreaded as such. But it cannot be said that their intention was to strike terror in the people or a section of the people and thereby commit a terrorist act.\n22. It is clear that there was rivalry between the party of the accused on the one hand and Raju and Keshav on the other. The former desired to gain supremacy which necessitated the elimination of the latter. With that in view they launched an attack on Raju and Keshav, killed the former and injured the latter. Their intention was clearly to eliminate them and not to strike terror in the people or a section of the people. It would have been a different matter if to strike terror some innocent persons were killed. In that case the intention would be to strike terror and the killings would be to achieve that objective. In the instant case the intention was to liquidate Raju and Keshav and thereby achieve the objective of gaining supremacy in the underworld. The consequence of such violence is bound to cause panic and fear but the intention of committing the crime cannot be said to be strike terror in the people or any section of the people. We are, therefore, of the view that the Designated Court was fully justified in taking the view that the material placed on record and the documents relied on did not prima facie disclose the commission of the offence punishable u/s. 3(1) of the Act.\n23.  It was next contended by the learned counsel for the State of Maharashtra that u/s. 12(1), when trying the offence under the Act, the Designated Court was entitled to try any other offence with which the accused were charged at the same trial since the offences punishable under the Penal Code and the Bombay Police Act were committed in the course of the same incident. S. 12(.1) no doubt empowers the Designated Court to try and offence punishable under any other statute along with the offence punishable under the Act if the former is connected with the latter. That, however, does not mean that even when the Designated Court comes to the conclusion that there exists no sufficient ground for framing a charge against the accused u/s. 3(1) of the Act it must proceed to try the accused for the commission of offences under other statutes.\n24. That would tantamount to usurping jurisdiction. Section 18, therefore, in terms provides that where after taking cognizance of any offence the Designated Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code. Therefore, when the Designated Court came to the conclusion that there was no prima facie evidence to frame a charge u/s. 3(1) of the Act, it was justified in transferring the case to the Court of Sessions, Ahmadnagar, which alone had jurisdiction under the Code. Once the Designated Court came to the conclusion that the evidence was not sufficient to frame a charge u/s. 3(1) of the Act, the Designated Court had no alternative but to resort to S. 18 and transfer the case to the competent court under the Code. We, therefore, do not see any merit in the contention of the learned counsel for the State of Maharashtra that even after the Designated Court came to the conclusion that no ground was made out u/s. 3(1) of the Act, it was duty bound by virtue of s. 12(1) of the Act to proceed with the trial for the other offences under the Penal Code and the Bombay Police Act. We think the course adopted by the Designated Court in transferring the case to the Sessions Court in clearly in keeping with s. 18 of the Act.\n25.  Before we part we may state that Mr. Lalit the learned counsel for the accused tried to urge before us that the provisions of the Act were intended to deal with political terrorism intended to undermine the security of the State and not to ordinary law and order problems. We do not consider it necessary to go into this larger question because, in our opinion, the Designated Court was fight in coming to the conclusion that this was a case of inter-gang rivalry not attracting S. 3(1) of the Act.\n26.  In the above view that we take all the three appeals fail and are dismissed. Mr. Lalit the learned counsel for the accused stated that since the High Court has directed expeditious disposal of the case he would not press the special leave petition directed against the High Court's order refusing bail. In view of the said statement, the Special leave petition No. 2459/89 will stand disposed of as not pressed. We may, however, state that the Sessions Court to which the case stands transferred should endeavour to complete the trial as early as possible, preferably within four months from the date of receipt of this Court's order.\nAppeals dismissed.\n"}
+{"id": "erqtHioRRd", "title": "", "text": "Union of India v Prafulla Kumar Samal and Another\nSupreme Court of India\n\n6 November 1978\nCRIMINAL APPELLATE JURISDICTION: Cr.A. No. 194 of 1977. (Arising as an appeal from the Judgment and order Dt. 30-8-76 of the Orissa High Court in Criminal Revision No. 88/76).\nThe Judgment was delivered by : Syed Murtaza Fazalali, J.\n1. This appeal is directed against the judgment dated 30th August, 1976 of the High Court of Orissa by which the High Court has upheld the order of the Special Judge, Puri discharging respondents No. 1 and 2.\n2. The facts of the case lie within a narrow compass and centre round an alleged conspiracy said to have been entered into between respondents No. 1 and 2 in order to commit offences u/ss. 5(2) and 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) read with section 120-B I.P.C. The main charge against the respondents was that between 19-2-1972 to 30-3-1972 the respondent entered into an agreement For the purpose of obtaining pecuniary advantage for respondent No. 1 P. K. Samal and in pursuance of the said conspiracy the second respondent Debi Prasad Jena, who was the Land Acquisition officer aided and abetted the first respondent in getting a huge sum of money for a land acquired by the Government which in fact belonged to the Government itself and respondent No. 1 was a skew thereof. It is averred in the chargesheet that respondent No. 1 by abusing his official position concealed the fact that the land which was the subject matter of acquisition and was situated in Cuttack Cantonment was really Khasmahal land belonging to the Government and having made it appear that he was the undisputed owner of the same, got a compensation of Rs. 4,18,642.55. The charge-sheet contains a number of circumstances from which the inference of the conspiracy is sought to be drawn by the police.\n3. After the charge-sheet was submitted before the Special Judge, the prosecution ousted him to frame a charge against the respondents. The Special Judge, Puri after having gone through the charge-sheet and statements made by the witnesses before the police as also other documents came to the conclusion that there was no sufficient ground for framing a charge against the respondents and he accordingly discharged them u/s. 227 of the Code of Criminal Procedure, 1973 hereinafter called the Code). The Special Judge has given cogent reasons for passing the order of discharge. The appellant went up to the High Court in revision against the order of the Special Judge refusing to frame the charge, but the High Court dismissed the revision petition filed by the appellant and maintained the order of discharge passed by the Special Judge. Thereafter the appellant moved this Court by a application for special leave which having been granted to the appellant, the appeal is now set for hearing before us.\n4. The short point which arises for determination in this case is the scope and ambit of an order of discharge to be passed by a Special Judge u/s. 227 of the Code. The appeal does not raise any new question of law and there have been several authorities of the High Courts as also of this Court on the various aspects and grounds on which an accused person can be discharged, but as s. 227 of the Code is a new s. and at the time when the application for special leave was filed, there was no direct decision of this Court on the interpretation of s. 227 of the Code, the matter was thought fit to be given due consideration by this Court.\n5. We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge-sheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge-sheet is submitted before the Special Judge.\n6. Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispersed with the procedure for commitment enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses after giving opportunity to the accused to cross-examine the witnesses 2nd was then required to hear the parties and to commit the acceded to the Court of Session unless he chose to act under section 209 and found that there was no sufficient ground for committing the accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the police and commit the case straightaway to the Sessions Court if the case is one which is exclusively triable by the Sessions Court. Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction. In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been applied fully to the trial of such cases. Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. This was obviously done to expedite the disposal of the criminal cases.\n7. Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior Judge, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.\n8. S. 227 of the Code runs thus:-\n\"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.\"\n9. The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of s. 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.:\n10. The scope of s. 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh ([1978]1 S.C.R. 287 1977 Indlaw SC 50) where Untwalia, J. speaking for the Court observed as follows:-\n\" Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebut ted by the defence evidence if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial\".\n11. This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.\n12. In the case of K. P. Raghavan and Anr. v. M. H. Abbas and Anr. (A.I.R. 1967 S.C. 740 1966 Indlaw SC 397) this Court observed as follows:-\n\"No doubt a Magistrate enquiring into a case under S. 209, Cr. P.C. is not to act as a mere Post office and has to come to a conclusion whether the case before him is fit for 8 commitment of the accused to the Court of Session.\"\n13. To the same effect is the later decision of this Court in the case of Almohan Das and ors. v. State of West Bengal ([1969] 2 S.C.R. 520 1968 Indlaw SC 197) where Shah, J. speaking for the Court observed as follows:-\n\"A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment; and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit it is the duty to discharge the accused: if there is some evidence on which a conviction may reasonably be based, he must commit the case.\"\n14. In the aforesaid case this Court was considering the scope and ambit of s. 209 of the Code of 1898. Thus, on a consideration of the authorities mentioned above, the following principles emerge:\n(1) That the Judge while considering the question of framing the charges u/s. 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:\n(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.\n(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.\n(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.\n15. We shall now apply the principles enunciated above to the present case in order to find out whether or not the courts below were legally justified in discharging the respondents.\n16. Respondent No. 1 was a Joint Secretary in the Ministry of Information and Broadcasting from April, 1966 to January, 1969. Later he worked as Joint Secretary in the Ministry of Foreign Trade till 12-11-1971. Thereafter, respondent No. 1 was working as Joint Secretary, Ministry of Education and Social Welfare. The second respondent worked as Land Acquisition officer in the Collectorate, Orissa from February 1972 to 18th August, 1973.\n17. In the year 1969 the All-India Radio authorities were desirous of having a piece of land for construction of quarters for their staff posted at Cuttack. In this connection, the said authorities approached respondent No. 1 who had a land along with structure in the Cantonment at Cuttack. As the All-India Radio authorities found this land suitable, they approached respondent No. 1 through his mother for selling the land to them by private negotiation. As this did not materialise, the All-India Radio authorities moved the Collector of Cuttack to assess the price of the land and get it acquired. Accordingly, the Tehsildar of the area directed the Revenue officer, Cuttack; to fix the valuation of the land of respondent No. 1. The Revenue officer reported back that the land belonged to respondent No. 1 and was his private land and its value would be fixed at Rs. 3000 per guntha. It is common ground that the land in question was situated in Cuttack Cantonment and was a Khasmahal land which was first leased out to one Mr. Boument as far back as 1-9-1943 for a period of 30 years. The lease was given for building purposes.\n18. In 1954 Mrs. Boument who inherited the property after her husband's death transferred the land to respondent No. 1 with the consent of the Khasmahal authorities. When respondent No. 1 came to know that the land in question was required by the All-India Radio authorities, he wrote a letter to Mr. S. Gill on 28th October, 1970 suggesting that the land- may be acquired but price fixed by mutual consent. It may be pertinent to mention here that in this, letter a copy of which being Ex. D-4 (12) is to be found at page 86 of the paper-book, respondent No. 1 never concealed the fact that the land really belonged to the Government. In this connection, respondent No. 1 wrote thus:-\n\"I have represented to you against the revenue authorities quoting a higher price for similar Government land more adversely situated and a lower price for my land despite its better strategic location.\"\n19. We have mentioned this fact because this forms the very pivot of the case of the appellant in order to assail the judgment of the courts below. A perusal of this letter clearly shows that respondent No. 1 made no attempt to conceal that the land in question was, a Government land which was leased out to his vendor. A copy of the original agreement which also has been filed shows that under the terms of the lease, the same is entitled to be renewed automatically at the option of the lessee and unless the lessee violates the conditions of the lease, there is no possibility of the lease being resumed. As it is, the lease had been continuing from the year 1943 and there was no possibility or its not being renewed on 1-9-1973 when the period expired. In these circumstances, therefore, it cannot be said that the letter written by respondent No. 1 referred to above was an evidence of a criminal intention on the part of respondent No. 1 to grab the huge compensation by practising fraud on the Government. Respondent No. 1 a high officer of the Government and was a lessee of the Government, a fact which he never concealed and if he was able to get a good customer for purchasing his land or acquiring the same, there was no harm In writing to the concerned authority to fix the proper valuation and take the land. There, was no question of any concealment or malpractice committed by respondent No. 1.\n20. Apart from this, the contention of the appellant that the fact that the land being Khasmahal land belonging to the Government was deliberately suppressed by the respondents is completely falsified by the circumstances discussed hereinafter:\n21. The land in question was situated in a Cantonment area and it is not disputed that all lands in the Cantonment area were Khasmahal Lands belonging to the Government.\nThe High Court in this connection has observed as follows:\n\"Government authorities admit that the land in question was known to be Khasmahal land from the very inception. This must lead to an inference that the authorities knew that the interest of the opposite party No. 1 in the land was that of a lessee and the State Government was the proprietor.\"\n22. The High Court has further observed that a number of witnesses who were examined by the police had stated that it was common Knowledge that all khasmahal lands in the Cantonment area in Cuttack were Government lands Relying on the statement of Mr. T. C. Vijayasekharan, Collector, Cuttack, the High Court observed as follows:-\n\"Shri Vijayasekharan who has admittedly played an important role in the land acquisition proceeding has said that it is a matter of common knowledge that all khasmahal lands in Cantonment area at Cuttack are Government lands. He has further categorically stated that Shri P. M. Samantray did not put undue pressure of any kind.\"\n23. Furthermore, it would appear that Mr. B. C. Mohanty, Land Acquisition officer submitted a report about the land in question on 15th February, 1971 in which he had clearly mentioned that the land in question was Government land and that respondent No. 1 was a Pattidar in respect of the land as shown in the record. Thus, one of the important premises on the basis of which the charge was sought to be framed has rightly been found by the High Court not to exist at all. The records of the Government showed the nature of the land. Respondent No. 1 at no time represented to the All-India Radio authorities or the Government that the land was his private one and the records of the Government clearly went to show that the land was a Government land. In these circumstances, therefore, it cannot be said that respondent No. 1 acted illegally in agreeing to the land being acquired by the Government.\n24. Another important circumstance relied on by the appellant was the great rapidity with which the land acquisition proceedings started and ended clearly shows that the respondents had joined hands to get the lands acquired and the compensation paid to respondent No. 1. In this connection, reliance was placed on the fact that the copies of the records of rights were prepared on 30th March, 1972 in which the land was no doubt shown as having been owned by the State. Bhujarat report was also prepared on the same date. Respondent No. 1 presented his copy of the deed of transfer also on the same date and respondent No. 2 made the award for Rs. 4,18,642.55 also on the same date. The entire amount was disbursed also on the same date and possession also was handed over on the same date. Prima facie, it would appear that the Officer acted in great hurry perhaps at the instance of respondent No. 1. These circumstances are clearly explainable and cannot be said to exclude every reasonable hypothesis bu the guilt of respondent No. 1. Admittedly, the All-India Radio authorities were in a great hurry to get the land acquired and take possession of the same. As respondent No. 1 was a high officer of the I.A.S. cadre there may have been a natural anxiety on the part of the small officers posted in the district of Cuttack to oblige respondent No. 1 by completing the proceedings as early as possible and meeting the needs of the All-India Radio.\n25. It would, however, appear that once notices u/s. 9(1) and 10(1) of the Land Acquisition Act were issued and the objection filed by the appellant was withdrawn, because there was no one else in the field, there was no impediment in the way of acquiring the land and taking possession from respondent No. 1. In fact, it would appear as pointed out by the High Court that as far back as 22nd February 1972 the Land Acquisition officer who was a person other than the second respondent had sent a letter to the Government with the counter signature of the Collector for sanctioning the estimate of acquisition of 2 acres of land belonging to respondent No. 1. Later, however, the area of the land was reduced from 2 acres to 1.764 acres and revised estimates as desired by the Revenue department were sent on 7-3-1972. This estimate amounted to Rs. 4,18,642 55 and was sent through the A.D.M's letter on 8-3-1972. The Home Department by their letter dated 11-3-1972 sanctioned the aforesaid estimate.\n26. There after, the Government indicated to the Collector that an award might be passed for acquiring 1.764 acres of land. These facts apart from negativing the allegations of criminal conduct against the respondents demonstrably prove the untruth of the circumstance relied upon in the charge-sheet, namely, that unless the respondent No. 1 and 2 acted in concert and conspiracy with each other, respondent No. 1 could not have known the exact figure of the compensation to be awarded to him. In this connection, reliance was placed on a letter written by respondent No. 1 to the Vigilance officer, L. S. Darbari on 15th March, 1972 where he had mentioned that as Karta of the H.U.F. he would be getting a compensation of Rs. 4,18,642.55 which is to be paid to him on the 10th March, 1972 and it was argued that unless the two respondents were in league with each other how could respondent No. 1 get these details. We are, however, unable to agree with this contention.\n27. We have already mentioned that a fresh estimate for 1.764 acres was prepared and the total compensation was Rs. 4,18,642.55 as only the Raiyyati or the lessee's interest was proposed to be acquired and this letter was sent to the Government for sanction and the estimate was sanctioned on 11-3-1972. It was contended that no notice was given to the Khasmahal department, so that the Government could claim compensation of the proprietary interest. It is obvious that what has been acquired in the present case is merely the Raiyyati or the lessee's interest and as the proprietary interest vests in the Government itself, there is no question of either acquiring or claiming compensation for the interest of the Government. In the case of Collector of Bombay v. Nusserwanji Rattanji Mistri & Ors. (AIR 1955 S.C. 298 1955 Indlaw SC 93) this Court observed as follows:-\n\" If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein, so that it might be in a position to pass it on absolutely for public user..................... When Government possesses an interest in land which is the subject of acquisition under the Act, that interest is itself outside such acquisition, because there can be no question of Government acquiring what is its own. An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants, but that would not make it the subject of acquisition.\"\n28. To the same effect is a later decision of this Court in the case of The Special Land Acquisition Officer, Hosanagar v. K. S. Ramachandra Rao & ors. (AIR 1972 S.C. 2224 1972 Indlaw SC 750) where this Court observed as follows:-\n\"Mr. M. Veerappa, the learned counsel for the State of Mysore, contends that the Land Acquisition officer had not assessed the compensation payable for the rights of the respondents in the land acquired .. .......We have gone through the Award made by the Land Acquisition officer. The Land Acquisition officer appears to have valued the rights of the respondents in the lands acquired. Whether the valuation made by him is correct or not cannot be gone into these proceedings.\"\n29. As the appellant was naturally interested in finalising the deal as quickly as possible, there could be no difficulty in finding out the estimates which had been sanctioned a week before respondent No. 1 wrote the letter to the Vigilance Department. This fact proves the bona-fide rather than any wrongful conduct on the part of respondent No. 1 which may lead to an adverse inference being drawn against him.\n30. Finally, it was argued that what was acquired by the Government was merely the lessee's interest, but the respondent No. 1 appears to have got compensation as the owner. This is factually incorrect. We have already referred to the circumstances which clearly show that the Government was fully aware that it was only the lessee's interest which was being acquired and even the fresh estimate for Rs. 4,18,642. 55, which was sent to the Government was shown as representing the Raiyyati interest. Mr. Agarwala appearing for the respondents fairly conceded that having regard to the nature, character and situation of the land, it could not be said that the amount of compensation awarded did not represent the market value of the lessee's interest of the land.\n31. On the other hand, in the counter-affidavit at page 87 of the paper book, it has been alleged that 16 sale-deeds executed during the year 1970 and sale-deeds executed during the year 1971 pertaining to the village in question were acquired at the rates varying from Rs. 42,165 to 750,000. The High Court has also pointed out that the records before the Trial Judge show that the Collector Vijayasekharan had valued the land at the rate of Rs. 1.70 lakhs per acre as far back 1 as 3-2-1970 and if two years later the valuation was raised to Rs. 2 lakhs it cannot be said that the land was in any way over-valued.\n32. Lastly, there does not appear to be any legal evidence to show any; meeting of mind between respondents No. 1 and 2 at any time. Although the Collector at the time of the acquisition was a distant relation of respondent No. 1 he had himself slashed down the rate of compensation recommended by the Revenue officer from Rs. 2,10,000 to Rs. 2,00,000 and it was never suggested by the prosecution that the Collector was in any way a party to the aforesaid conspiracy.\n33. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the High Court that there was no sufficient ground for trying the accused in the instant case. Moreover, this Court could be most reluctant to interfere with concurrent findings of the two courts in the absence of any special circumstances.\n34. For the reasons given above, the judgement of the High Court is affirmed and the appeal is dismissed.\n"}
+{"id": "Z2cuVixkZV", "title": "", "text": "State of Madhya Pradesh v S. B. Johari and Others\nSupreme Court of India\n\n17 January 2000\nCr.As. No. 49 of 2000 (From the Judgment and Order Dt. 24 February 1999 of the Madhya Pradesh High Court in Cr. R. No. 613 of 1998) with No. 50 of 2000\nThe Judgment was delivered by : M. B. Shah, J.\nLeave granted.\n1. The aforesaid appeals are filed by the State of Madhya.Pradesh challenging the orders passed by the High Court of Madhya Pradesh, Bench at Indore allowing Criminal Revision Applications Nos.613 of 1998 and 159 of 1999 and quashing the charges framed by the Additional Sessions Judge, Indore in Special Case No.28/96 against the respondents for the offences punishable under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1948 read with Section 120-B IPC and in the alternative for the offence punishable under Section 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988.\n2. FIR was lodged at the Police Station Bhopal to the effect that there was criminal conspiracy in purchase of medicines for S.G. Cancer Hospital, Indore. At the relevant time, Dr. C.P. Tiwari was posted as Dean, Medical College, Dr. M.S. Dwivedi was working as Superintendent, Mr. S.B. Johari (Respondent No.1 in SLP No.2854/99) was working as Medical Officer In charge of Stores and Mr. Sudhir Pingle (Sole Respondent in SLP No.2855/99) was working as Accountant in the hospital. It is alleged that all the aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their posts and also by using some forged documents that caused wrongful loss to the Government. It has been stated that though many of the items have not been purchased, amount is paid on bogus vouchers. On the basis of the material on record, it was pointed out that some medicines were purchased at Jabalpur at lesser price, roughly at half the rate. After considering the material on record, learned Sessions Judge framed the charge as stated above. That charge is quashed by the High Court against respondents by accepting the contention raised and considering details of material produced on record. The same is challenged by filing these appeals.\n3. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence.\n4. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76 1990 Indlaw SC 81, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 1977 Indlaw SC 50, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 1978 Indlaw SC 252 and Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 1979 Indlaw SC 548, and held thus: - From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.\n(emphasis supplied)\n5. In the present appeals dealing with the contention of respondent Dr. Johri, Mr. A.P. Acharya and Dr. O.P. Tiwari, the High Court observed that role of Dr. Johri in purchase of the medicines was limited to the extent that he prepared only a comparative statement of tenders and that the other two persons were members of the Purchase Committee. The Court arrived at the conclusion that comparison of different prices at different places at different periods on the basis of different transactions between different persons cannot straightway be made the basis for alleging corruption or corrupt practice on the part of the accused. The Court further observed that the trial court has not properly appreciated that there is a difference of about 550 miles between Jabalpur and Indore and therefore price difference in purchase of medicines would be there. The Court also held that the medicines were purchased at two places during different periods and therefore also, there would be a price difference. With regard to A. P. Acharya and Dr. O.P. Tiwari the Court observed that they were not shown to have any control over the purchase of the goods and, therefore, they cannot be saddled with the criminal prosecution. The Court further considered that as per the statement of Manufacturing Company the quotations given by the M/s Allied Medicine Agency, Indore were genuine and, therefore, held that charges levelled against the respondents Dr. Johri, Mr. A.P. Acharya and Dr. Tiwari cannot stand for a minute. Similarly, dealing with the contention of respondent Sudhir Pingle in Crl. Revision No.159 of 1999, the High Court observed that it cannot be disputed that respondent had prepared the bills on account of instructions given to him by superiors, namely, Dr. Johri and Dr. Tiwari and that on his own account he could not have prepared the said bills for making payment to M/s Allied Medical Agency. The Court also observed that he was neither empowered to place orders nor competent to make payment thereof unless the same was approved by the doctors who were actually in charge of the hospital. The Court, therefore, held that there was no sufficient material available for framing the charge against him.\n6. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether accused are guilty or not. It was done without considering the allegations of conspiracy relating to the charge under Section 120-B. In most of the cases, it is only from the available circumstantial evidence an inference of conspiracy is to be drawn.\n7. Further, the High Court failed to consider that medicines are normally sold at a fixed price and in any set of circumstances, it was for the prosecution to lead necessary evidence at the time of trial to establish its case that purchase of medicines for the Cancer Hospital at Indore was at a much higher price than the prevailing market rate. Further again non-joining of two remaining members to the Purchase Committee cannot be a ground for quashing the charge. After framing the charge and recording the evidence, if Court finds that other members of the Purchase Committee were also involved, it is open to the Court to exercise its power under Section 319 of the Criminal Procedure Code. Not only that, the Court erroneously considered the alleged statement of manufacturing company that quotations given by M/s Allied Medicine Agency, Indore were genuine without there being any cross-examination. The High Court ignored the allegation that many of the items have not been purchased and the amount is paid on bogus vouchers. Hence, there was no justifiable reason for the High Court to quash the charge framed by the trial court.\n8. In this view of the matter, the impugned orders passed by the High Court require to be quashed and set aside and we do so. The appeals are allowed accordingly.\nAppeals allowed.\n"}
+{"id": "WvTMVTucHY", "title": "", "text": "State Of Bihar v Ramesh Singh\nSupreme Court of India\n\n2 August 1977\nCriminal Appeal No. 51 of\n1977.\nAppeal by Special Leave from the Judgment and Order dated 18-2-1976 of the Patna High Court in Crl. Rev. No. 699/75.\nU. P. Singh and S. N. Jha, for the, Appellant\nThe Judgment was delivered by : N. L. Untwalia, J.\n1. The respondent in this appeal by special leave is a Professor of Economics in Munshi Singh College, Motihari in the State of Bihar. At about 3.00 A.M. on the 26th of November, 1973, Smt. Tara Devi, wife of the respondent, was found burning in the kitchen of his house. A hulla was raised. Chandreshwar Prasad Singh, brother of Tara Devi, who is a Professor of Botany in the said College and lives nearby came to the scene of occurrence. It is said he found the respondent and his brother standing near the burning body of Tara Devi but not taking any steps to extinguish the fire. Tara Devi died apparently as a result of the extensive burn injuries on her person. A First Information Report was lodged by Chandreshwar Prasad Singh at the Police Station charging the respondent for having committed the offences under sections 302 and 201 of the Penal Code. Eventually Charge-Sheet was submitted against him by the police and the case was committed to the Court of Sessions for trail of the respondent under section 209 of the Code of Criminal Procedure, 1973-hereinafter called the Code.\n2. When the case was opened in the Court of the IIIrd Additional Sessions Judge at Motihari in Sessions Trial No. 66/1975 by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground for proceeding with the trial against him and he should be discharged in accordance with section 227. The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975. The State of Bihar the appellant in this appeal went in revision before the Patna High Court to assail the order aforesaid of the Sessions Court. The High Court by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the Sessions Court. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial.\n3. U/s. 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either u/s. 227 or s. 228 of the Code. If \"the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing\", as enjoined by s. 227. If, on the other hand, \"the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-\n(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused, as provided in section 228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order u/s. 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one u/s. 228 and not u/s. 227.\n4. In Nirmaljit Singh Hoon v. The State of West Bengal and another, [1973] 2 S.C.R. 66 1972 Indlaw SC 492 -Shelat, J. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose, [1964] 3 S.C.R. 629 1963 Indlaw SC 398 where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 \"that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused.\" Illustratively, Shelat J, further added \"Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case.\"\n5. The fact that Tara Devi died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or whether she committed suicide by herself setting fire to , it This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge, copious reference to Modi's Medical Jurisprudence and judging the postmortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the Trial Judge . According to the persecution case the respondent was in love with one of his girl students, named, Nupur Ghosh and this led to the serious differences between the respondent and his wife, the unfortunate Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the 'alleged love-affair of the respondent led Tara Devi to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any oscular testimony of an eye witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right when he said-\"it appears that there is neither direct evidence nor any circumstantial evidence to connect the accused with the alleged murder of Tara Devi\".' He also ought not to have referred to the varying opinions of the Circle Inspector and the Superintendent of Police, Motihari as to the submission of Charge-Sheet against the respondent. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, the High Court has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on Tara Devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of Chandreshwar Singh, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said assault the respondent had given her a threat to kill her. The High Court felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added \"There may be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused.\" The said observation of the High Court is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of sections 227 and 228 of the Code. For the reasons stated above, we set aside the impugned orders of the High Court and the Sessions Court and direct that appropriate charge or charges will be framed against the respondent and the trial shall proceed further in accordance with the law.\n"}
+{"id": "wW1uhw3U3x", "title": "", "text": "Nathuni Yadav and Others v State of Bihar and Another\nSupreme Court of India\n\n20 December 1996\nAppeal (Crl.) 194 of 1989\nThe Judgment was delivered by : K. T. Thomas, J.\n1.  For Bhagelu Singh Yadav, his own residence became most devastatingly unsafe when he and his wife were gunned down by armed assailants during a summer night in the month of June, 1980. His wife Sona Devi fell down dead on the spot though Bhagelu Singh escaped death as the pellets did not injure his vital organs. But the irony of fate of his neighbour Ram Janam Rai was horrendous as he too was shot dead just because he woke up hearing the sound of commotion from his neigh-bourhood. Balroop Yadav (first cousin of Bhagelu Singh Yadav). His two sons (Nathuni Yadav and Chela Yadav) and his son-in-law (Chandrika Yadav) were charge-sheeted by the police on the aforesaid incident before the Sessions Court. After trial learned Sessions Judge acquitted all of them. But a Division Bench of the Patna High Court has reversed the acquittal and convicted them of murder and sentenced them to undergo imprisonment for life. This appeal, is filed under Section 2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Section 379 of the Code of Criminal Procedure, 1973.\n2.  During the pendency of this appeal, Balroop Yadav passed away on 17.2.1990. Consequently, the appeal against him stood abated. We heard Shri M.P. Verma, senior advocate who argued the appeal for the remaining appellants and Shri B.B. Singh, advocate for the State of Bihar.\n3.  Balroop Singh's father (Charvidhar) and Bhagelu Singh's father (Lagatu) were direct brothers, decease Bhagelu Singh had married twice and Sona Devi was his second wife. (His first wife and a daughter born in the first wedlock had died long before this incident.) Sheela Kumari (PW-6) is the daughter of Bhagelu Singh and Sona Devi. They were residing together in his house in Diliyan villlage (Rohtak District, Bihar). Appellants were also residing in the same village.\n4.  Bad blood existed between Bhagelu Singh Yadav and Balroop Yadav on account of some family feud. This ghastly incident took place around midnight on 11.6.1980. On that fateful night, Bhagelu Singh and other members of his family were sleeping on the open terrace of his residential building. Sona Devi's brother Saryu Singh (PW-4) was also sleeping on the same terrace. It was during then that the assailants jurked into the house and reached the terrace. As the dog barked, Bhagelu Singh Yadav woke up and saw the assailants armed with guns standing closely.\n5.  Appellant Chandrika opened fire at Bhagelu Singh while appellant Nathuni Yadav shot Sona Devi with another gun. Hearing the sound of nacouth their neighbour Ram Janam Rai woke up and asked from his terrace as to what was happening. Then Balroop Singh Yadav turned the mouth of his gun towards that neighbour and pulled the trigger. Ram Janam Rai slumped down and breathed his last then and there. During the shoot out Saryu Singh (PW-4) sensed that the assailants might be prowling for the little daughter Sheela Kumari also and so he took courage and lifted her up and slipped away from the scene. Assailants then fled from the scene. Many nighbourers rushed to the place, Bhagelu Singh Yadav was taken to the Government hospital Sasaram where he was treated for the injuries sustained.\n6.  We have no doubt that, on the evidence in this case. Bhagelu Singh and his wife were shot at on the ill fated night at the terrace of their residential building nor have we any doubt that their neighbour Ram Janam Rai was shot dead as he woke up in the night and expressed his inquisitiveness as to what was happening in the neighbourhood. We may point out that learned counsel for the appellant did not dispute the above points before us. The contention which learned counsel stressed was that appellants were not the assailants who intruded into the house of Bhagelu Singh Yadav.\n7.  According to the learned counsel, there was no possibility at all for the witnesses to identity the assailants as it was a moonless night and there was no lamp burning in the vicinity and hence it would have been pitch dark when the incident happened.\n8.  We have considered the said contention from all its angles. Ever assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glove of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be born in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that assailants were no strangers to the inmates of the tragedy bound house, the eye witnesses being well acquainted with the physiognomy of each one of the killers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identity the victims whom they targetted without any mistake from among those who were sleeping on the terrace. If the light then available, though meagre, was enough for the assailants why should we think that same light was not enough for the injured who would certainly have pointedly focussed their eyes on the faces of the intruders standing in front of them. What is sauce for the goose is sauce for the gander.\n9.  Apart from the evidence of PW-4 (Saryu Singh PW-6 (Sheela Kumari) and PW-10 (Bhagelu Singh) identifying the appellants as their assailants, there are certain other materials ensuring confidence in our mind that PW10 would have correctly identified his assailants as appellants.\n10.  PW2 (Muni Yadav) and PW7 (Ram Janam Rai) were very close neighbours of Bhagelu Singh Yadav. The evidence of those two witnesses is to the effect that when they heard sound of gun shots they rushed to the spot within a few minutes and saw the injured persons in bleeding condition. Those witnesses deposed further that Bhagelu Singh (PW10) and Saryu Singh (PW4) mentioned names of these appellants as the assailants who shot them. PW8 is the son of the Ram Janam Rai. He too deposed similarly that Bhagelu Singh mentioned the names of these appellants when the witness reached the spot soon after seeing his father lying dead with gunshot injury inflicted by somebody from the house of Bhagelu Singh.\n11.  The above evidence of PW2, PW7 and PW8 may not become sub-stantive evidence as res gestae. Nevertheless. Such evidence has a utility in the trial as it would fall within the ambit of section 157 of the Evidence Act. Any former statement made by a witness at or about the time when the incident took place becomes usable as of corroborative value under Section 157 of the Evidence Act. Though such statements are not part of the main transaction, they have a probative value for corroborative purposes if such statements have been made without delay. If delay was involved in making Such statement. Its utilily would be restricted to confronting the maker for contradicting him. Such a statement would have no corroborative value. If there was no appreciable delay the statement made by the witness can be used for corroborating his own testimony as provided in Section 157 of the Evidence Act.\n12.  The words \"at or about the time\" in Section 157 of the Evidence Act are the crucial words to judge the time when the statement was made. Whether the statement was made at or about the time of the incident can be decided on (he fads of each case. No hard and fast rule can be laid down for it. However. those words \"at or about the time\" in Section 157 must receive a pragmatic and liberal construction. The principle is that the time interval between the incident and the utterance of the statement should not be such as to afford occasion for reflection or even contemplation. If the time interval was so short as between the two that the mind of the witness who made the statement was well connected with the incident without anything more seeping into, such statement has a credence, and hence can be used, though not as substantive evidence, as corroborating evidence, on the principle adumberated in Section 157 of the Evidence Act.\n13.  Vivian Bose J. has observed in Rameshwar v. State of Rajasthan, AIR (1952) SC 54 1951 Indlaw SC 24 that \"there can be no hard and fast rule about\" at or about condition in section 157, The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for listening and concoction\". We respectfully follow the aforesaid observation, There is nothing on record to doubt the genuiness of the testimony of PW2 (Muni Yadav). PW7 (Ram Janam Rai) and PW8 (Ramadhar Singh) that they heard from Bhagelu Singh Yadav (PW10) that appellants were the assailants. We hold that the said statements of Bhagelu Singh Yadav (PW10) and Saryu Singh (PW4) corroborate their evidence in this case.\n14.  Learned counsel advanced an argument, very vehemently, based on perpetrate the motive attributed to the appellants for committing this dastardly murder. According to the counsel, if appellants were the murders they should have had insatiable thirst for the Wood of Sona Devi, but prosecution suggested only a pusile or fragile motive for them to perpetrate the brutal murder of an unarmed sleeping woman. What PW10 Bhagelu Singh Yadav suggested as motive for the crime is this : He had given his child Sheela Kumari in marriage to somebody else. As he had no other male progeny first appellant Balroop Yadav had an eye on his landed property. But Bhagelu Singh Yadav had gifted it away to his wife Sona Devi.\n15. This embittered the appellants and driven them to murder Sona Devi, is the case of the prosecution. Learned Sessions Judge treated it as a very weak motive for this gory murder. Learned counsel for the appellant rightly contended that by murdering Sona Devi appellants could not succeed in securing the property which was gifted away by Bhagelu Singh. Does it mean that appellants would have had no motive at all for gunning down Bhagelu Singh Yadav and his wife? The mere fact that motive alleged by the prosecution is not strong enough for others to develop such a degree of grudge would not mean that the assailants had no serious reasons to do this.\n16.  Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily he proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in Reg v. Palmer (Shorthand Report at page 308 SCC May 1850; thus: \"But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties\".\n17. Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental Condition existed in She mind of the assailant. In Atley v. State of U.P., AIR (1955) SC 8071955 Indlaw SC 135 it was held \"that is true, and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but absence of clear proof of motive does not necessarily lead to the contrary conclusion,\" In .some cases, it may not be difficult to establish motive through direct evidence. While in some other cases inferences from circumstances may help in discerning the mental propensity of the person concerned. There may also be cases in which it is not possible to disinter the mental transaction of the accused which would have impelled him to act. No proof can be expected in all Cases as to now the mind of the accused worked in a particular situation. Sometimes, it may appear that the motive established is a weak one. That by itself is insufficient to lead to any inference adverse to the prosecution.\n18.  After considering the various arguments addressed by learned counsel and after scrutinising the evidence in this case. We reach the conclusion that the High Court has rightly interfered with the order of acquittal passed by the trial Judge. The conviction and sentence passed on he appellants are well merited and warrant no interference. The appeal is accordingly dismissed. The bail bonds executed by the appellants would stand cancelled. The Chief Judicial magistrate, Rohtas Sasarara is directed to take immediate steps to put the appellants back in jail for undergoing the sentence.\nAppeals dismissed\n"}
+{"id": "TP9gyv1plB", "title": "", "text": "Angnoo and Others v State of Uttar Pradesh\nSupreme Court of India\n\n11 September 1970\nCr.A. No. 209 of 1967.\nThe Judgment was delivered by: BHARGAVA, J.\n1.  The ten appellants in this appeal were convicted for offences punishable u/s. 148 of the Indian Penal Code and Section 302, read with S. 149 of the Indian Penal Code, and each one of them was awarded concurrent sentences of two years rigorous imprisonment for the first offence and imprisonment for life for the second offence. The conviction was recorded in respect of the murder of one Mahadeo on the 12th November, 1964.\n2.  The prosecution case was that Mahadeo had appeared as a witness in an enquiry u/s. 202 of the Code of Criminal Procedure which was being held on a complaint filed by one Chotai for an offence under Section 500, IPC, against Angnoo appellant. That complaint was filed by Chotai on the ground that Angnoo had earlier lodged a false report with the police against Chotai and his brother Sumer for an offence under Section 454, IPC After Mahadeo had been examined as a witness in the enquiry, the Court issued summons against the accused. The service of the summons on Angnoo took place on 12th November, 1964.\n3. On that day, at about noon, Mahadeo had gone form his village Banyan Khera to another village Rampur, one mile away. It may be mentioned that eight of the appellants belonged to the same village Banyan Khera where Mahadeo resided, while two of them resided in neighbouring villages. When Mahadeo was returning about an hour before sunset and had reached place, two furlongs away from his own village Banyan Khera, near the filed of one Badal, the ten appellants are alleged to have come out of an ambush and attacked Mahadeo with spears and Kantas. Five of the appellants were armed with spears and the other five with Kantas. Mahadeo raised a hue can cry and also tried to defend himself with the Lathi which he was carrying. He was, however, badly injured and died as a result of those injuries on the spot.\n4. A number of witnesses had arrived near the place of occurrence and saw part of the attack on Mahadeo. When some of the witnesses waned to come near, of the appellants, Barjor fired a warning shot in the air with his pistol, so that none of the witnesses came very close. They all remained at a distance of about 50 paces from the place of incident. After having caused injuries to Mahadeo, the appellants escaped to the north through the fields and, thereafter, witnesses came near Mahadeo and found him dead. Mahadeo's brother Puttu Lal dictated a report of the incident which was written down by prosecution witness Raja Ram. It was then given to one Kallu to be taken to the Police Station Qasimpur. On the basis of that written report, the First Information Report was recorded at Qasimpur at 8-30 p.m. The offence was, however, committed at a place which fell within the circle of Police Station Auras, so that a copy of the report recorded at Police Station Qasimpur was sent to the Police Station Auras, where the information reached at 11-30 p.m. Thereafter, the case was investigated and the appellants were sent up for trial. The Trial Court relied on the evidence of five eye-witnesses and the medical evidence to record the conviction of the appellants for the offences mentioned above. The High Court upheld the conviction and dismissed the appeal filed by the appellants. Consequently, the appellants have come up in this appeal by special leave.\n5.  The Trial Court convicted the appellants on the basis of the evidence of five eye-witnesses P.W. 1, Puttu Lal, brother of Mahadeo deceased, P.W. 2 Maiku, P.W. 3 Shri. Krishna, P.W. 4 Raja Ram and P.W. 5 Juddhi. The argument that has been advanced before us on behalf of the appellants is that the evidence of these witnesses should not have been accepted by the courts because of five reasons.\n1) There was delay in lodging the First Information Report;\n2) There was conflict between the medical evidence and the evidence of the eye-witnesses;\n3) It was not probable that these witnesses could have arrived sufficiently close to the scene of occurrence in time to see the actual assault on Mahadeo;\n4) It was not very probable that they would be able to recognise all ten appellants as assailants of Mahadeo; and\n5) All the eye-witnesses are partisan witnesses and should not have been relied upon. All these arguments were advanced before the High Court also, and the High Court did not find any force in them. \nHaving heard learned counsel, we are also unable to hold that any of these grounds would justify our interference with the concurrent decision of the Trial Court and the High Court.\n6.  It is true that, according to the prosecution witnesses, the incident took place at about 4.30 p.m. The time has been estimated on the basis of the version of the witnesses that it took place one hour before sunset and, during those days, the time of sunset was about 5.30 p.m. The report was lodged at Police Station Qasimpur, five miles away at 8.30 p.m. part of the delay is explained by the circumstance that some time must have been taken in looking after Mahadeo before his brother Puttu Lal could gather his wits 4to dictate the report, and then time must have been taken in actual dictation while the report was being recorded by P.W. 4 Raja Ram. It however, appears that the report written without the aid of any artificial light and, consequently, writing of the report must have been completed by about 6-30 p.m. Thereafter, that written report was given to one Kallu to be taken to village Qasimpur and he left the place of occurrence on cycle. It is true that, normally, he should have gone straight to the police station it should have been recorded much earlier than 8.30 p.m. However, the explanation for the delay could not be put forward by the prosecution, because Kallu turned hostile and could not be examined by the prosecution for this purpose. It seems to be probable, as indicated by the High Court, that Kallu, for some reason or the other, did not proceed straight to the police station and went off for his own work and, realising that he had committed this mistake, he may have turned hostile to the prosecution. The absence of the explanation for the delay committed by Kallu, under these circumstances, cannot be considered to be a grounds for disbelieving the eye-witnesses.\n7.  So far as the question of conflict between medical evidence and the evidence of eye-witnesses is concerned, the submission is based on the fact that, amongst the 27 injuries which were received by Mahadeo, there were four blunt-weapon injuries. According to the prosecution witnesses, the weapons that were carried by the assailants and were used in the attack were a spear and Kantas. The arguments was that neither a spear not a Kanta could cause a contusion, bruises or a depression on the head and, consequently, the evidence given by the eye-witnesses does not fully explain all the injuries received by Mahadeo. It appears to us that most of these witnesses arrived at the scene of occurrence after the attack had already started and were able to see only part of the incident, so that some blows must have been inflicted on Mahadeo before their arrival and some after their arrival. It may be that they failed to notice that some of the assailants were carrying Lathis or, more probably, some of the assailants used their spears like Lathis. They gave blows wielding spears as Lathis rather than thrusting the spears every time. They may have done so even before some of the witnesses arrived. The use of a spear in such a manner will not be very unnatural if a large number of persons surround one single man and try to beat him. In such a situation, it may be easier to wield the spear as a Lathi than to try and thrust it at the person being attacked. There is, therefore, in our opinion, no conflict at all between the medical evidence and the evidence given by the eye-witnesses.\n8.  The witnesses came from different places. Puttu Lal P.W. 1 and Juddhi P.W. 5 both came from their village Banyan Khera, which was at a distance of about two furlongs from the scene of occurrence. The distance was not so great that, after hearing the first hue and cry raised by Mahadeo, these two witnesses could not have come in time to see part of the assault on Mahadeo. They both stated that they stopped at a distance of about 50 paces from the place from where Mahadeo was being beaten and saw the occurrence form that place. As pointed out by the High Court, the appellants were in the filed of Badal about 100 paces away where they were concealing themselves. It is possible that Mahadeo started raising a hue and cry as soon as he saw these appellants rushing at him. These cries having been heard by Puttu Lal and Juddhi, they must have started running immediately towards the scene of occurrence and could, therefore, very well come in time to see some of the blows falling on Mahadeo. The other three witnesses Maiku, Shri. Krishna and Raja Ram were also not much further away. In this connection, Shri. Krishna's evidence is challenged on the ground that, according to him, he arrived in village Khanjhri at about 2 or 2.30 p.m., stayed there for half an hour, and was then coming back when he saw this incident. Khanjhri is at a distance of only five furlongs from the scene of occurrence. The argument was that, if he left Khanjhri at about 3 p.m., he could not still be between that village and the scene of occurrence, because he could not have taken 1 1/2 hours to cover a distance of less than five furlongs.\n9.  This argument overlooks the circumstances that villagers have no watches or clocks and only give timing from their estimate. It can very well be that Shri. Krishna may have made a mistake of more than an hour in respect of the time of his may have made a mistake of more than an hour in respect of the time of his arrival in village Khanjhri and may have also under-estimated the period during which he stayed there before starting back. In fact, villagers have very little idea of distances also; and this is clear form the evidence of P.W. 4 Raja Ram who stated that his village was at a distance of half a mile from the scene of occurrence. According to him, he heard the shouts when he had covered about 1 1/2 filed away from the village which distance, according to him, would be 90 steps. At the same time, he stated that when he heard the shouts, he was 50 steps away from the place of occurrence. It was pointed out to him by the Court that, according to his evidence, the total distance between the scene occurrence and his village was half a mile, while, calculating from his own position, the distance would be only 90 steps plus 50 steps. He was unable to explain the discrepancy. It is obvious that he had no idea of distances. We are unable to agree with learned counsel for the appellants that, from this circumstances, an inference can at all be drawn that Raja Ram was nowhere near the scene of occurrence and did not see the assault on Mahadeo.\n10.  So far as the possibility of recognising the ten appellants is concerned, all the witnesses have stated that they arrived within a distance of about 50 steps while the assault was still going on. All the appellants were well-known to the witnesses and there is no reason to doubt their evidence that they were able to recognise all the ten of them. Persons well-known can be recognised within a very short time. The appellants were seen by them while continuing the attack on Mahadeo and while they were going away after completing the assault.\n11.  So far as the last point in concerned, it does appeal that two of the witnesses are not independent. Juddhi is the son of Chotai who has litigation with Angnoo appellant. Seven of the other accused are related to Angnoo, while the two of them are said to be his friends, these two being he Ram Adhar and Barjor Singh. Maiku once appeared as a witness for the prosecution in a case against Ram Adhar and, in that case, his evidence was disbelieved by the Court on the ground that he was a partisan witness. It, however, appears to us that at least the other three witnesses are quite reliable. Puttu Lal is, no doubt, the brother of deceased Mahadeo, but this very circumstance would, in our opinion, add to the value of his evidence, because he would be interested in ensuring that the real culprits responsible for the murder of Mahadeo are punished and not innocent persons. Shri. Krishna and Raja Ram are both totally independent. No relationship between them and any other interested person has been established. They have no motive to gave wrong evidence against the appellants.\n12.  Considering all these circumstances, we are unable to hold that the High Court committed any error in upholding the conviction of these appellants. The appeal fails and is dismissed.\nAppeal Dismissed.\n"}
+{"id": "fSEVQOEXfn", "title": "", "text": "Anil Kumar v State of U.P.\nSupreme Court of India\n\n13 February 2003\nAppeal (Crl.) 139 of 1996\nThe Judgment was delivered by : S. N. Variava, J.\n1.  This Appeal is against a Judgment dated 22nd November, 1994. Briefly stated the facts are as follows:\n2.  On 11th June, 1978 one Manoj Kumar (P.W.2) was returning to his home. At that time he was way laid by Chaman (the Appellant in Criminal Appeal Nos. 934-936 of 1995, which Appeals have been dismissed today by a separate Judgment) and four other persons way laid him and assaulted him with iron bars, knives and Dandas. On hearing his cries his younger brother Sanjay rushed forward to protect him and embraced Manoj in order to save his life. The younger brother was only 10 years old at that time. Even on seeing that a 10 years old boy has embraced Manoj the assailants did not stop but continued to inflict knife and Danda blows even on the young boy of 10 years. On hearing the cries of Manoj and Sanjay, their father Shri Sidheswar Dwivedi, mother Smt. Kaushalya Dwivedi and sister Sangeeta rushed to save them. They were also assaulted.\n3.  Thereafter other people of the public came there and the assailants ran away. A complaint was lodged by the father Shri Sidheswar Dwivedi. In the first information report he named Chaman as having first attacked along with certain unknown persons. He thereafter named certain other persons who were supposed to have come there and helped the assailants after he reached the spot. On the basis of this complaint an investigation was made by the police. Eight accused were put up for trial. As Sanjay had died the charges were under Sections 302, 323, 325 read with 149 and Section 148 of the Indian Penal Code.\n4.  The prosecution examined a number of witnesses of whom P.W.1, was the father, P.W.2, was Manoj and P.W.4, was the mother. They were eye-witnesses who narrated the incident and identified Chaman and the Appellant. In spite of detailed cross examination their testimony could not be shaken. Their evidence was corroborated by the evidence of the Doctor who disclosed that Sanjay had died a homicidal death and that Manoj, his father and the mother had also received injuries.\n5.  After trial six persons were acquitted by the trial Court. Chaman and the Appellant were convicted by the trial Court under Sections 325 read with 149 I.P.C. for which a sentence of 4 years was imposed. They were also convicted under Sections 324 read with 149 I.P.C. and a sentence of 2 years was imposed. For offence under Sections 323 read with 149 I.P.C. a sentence of 6 months was imposed. For offence under Section 148 I.P.C. a sentence of 1 year was imposed. All the sentences were directed to run concurrently. The Appellant (as well as Chaman) filed two criminal Appeals in the High Court.\n6. The State also preferred an Appeal against the acquittal under Sections 302 read with 149 and against the acquittal of other 6 persons. The High Court heard all these Appeals together and disposed off the same by the impugned judgment. The High Court has confirmed the finding of the trial Court that the prosecution had proved its case beyond a reasonable doubt as against Chaman and the Appellant. It has also confirmed the conviction under Sections 325 read with 149, 324 read with 149, 323 read with 149 and 148 of the Indian Penal Code. But the High Court has concluded, and in our view rightly, that an offence was made out under Sections 304 Part II read with 149 I.P.C. and sentenced both Chaman and the Appellant to 5 years rigorous imprisonment. Hence this Appeal.\n7.  Mr. Tripurari Ray has submitted that both the trial Court and the High Court have erred in convicting the Appellant. He submitted that in the FIR the Appellant has not been named. He submitted that the scribe of the FIR was one Mr. Umesh Kumar Dixit who was the nephew of the complainant. He submitted that Umesh Kumar Dixit was a class-mate of the Appellant and he knew the Appellant. He submitted that as Umesh Kumar Dixit knew the Appellant he would have named the Appellant in the written complaint if the Appellant had actually been present at that time. He submitted that the prosecution did not examine Umesh Kumar Dixit and therefore the Appellant has been gravely prejudiced. He submitted that an adverse inference must be drawn against the prosecution that if Umesh Kumar Dixit had been examined the Appellant would have been able to establish that he was not present at the time of the incident.\n8. We are unable to accept the submission. Umesh Kumar Dixit was not an eye witness. He did not see the incident and did not know who were present or who the assailants were. He only scribed what was told to him by P.W.1. It has come in the evidence of P.Ws. 1, 2 and 4 that they did not know the Appellant prior to the incident. They therefore could not have named him in the FIR. As Umesh Kumar Dixit was not an eye-witness to the incident there was no necessity to examine him. Umesh Kumar Dixit could have showed no light. He could not have stated whether the Appellant was present or not. Therefore no prejudice has been caused to the Appellant.\n9.  It was next pointed out that the Appellant was arrested on 12th June, 1978. It was submitted that on the same day the Appellant was taken to the hospital. It was submitted that while taking the Appellant to the hospital no precautions were taken. It was submitted that his face was not covered. It was submitted that for this reason itself the trial gets vitiated. In support of this submission reliance was placed upon the case of S. V. Madan v. State of Mysore reported in (1980) 1 SCC 479 1979 Indlaw SC 403 wherein this Court found that there was no evidence adduced by the prosecution to show that precautions were taken to ensure that the witnesses did not see the accused and/or that the witnesses had no opportunity to see the accused before the identification parade. On this ground it was held that reliance could not be placed on an identification parade. Thus this case was based on the fact that there was no evidence that precautions were taken.\n10. We however note that P.Ws. 8 and 9, i.e. the investigating officer and the officer in-charge of the police station, have deposed that they took the Appellant in a covered condition and that whilst the Appellant was in jail he was not shown to anybody. In cross-examination their testimony, that they had taken these precautions, could not be shaken. Thus in this case there is clear evidence that precautions were taken in order to ensure that the witnesses did not have the chance to see the Appellant.\n11.  It was next submitted that even though the Appellant was arrested on 12th June, 1978 the identification parade was held only on 27th July, 1978. It was submitted that there was a delay of about 47 days in holding the test identification parade. It was submitted that the test identification parade after such a delay cannot be relied upon and on this ground also the Appellant is entitled to be acquitted. In support of this submission reliance has been placed on the case of Soni vs. State of U. P. reported in (1982) 3 SCC 368 1981 Indlaw SC 608. The entire Judgment consists of one paragraph which reads as follows:\n\"After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant.\"\n12.  It is to be seen that apart from stating that delay throws a doubt on the genuineness of the identification parade and observing that after lapse of such a long time it would be difficult for the witnesses to remember the facial expressions, no other reaSoning is given why such a small delay would be fatal.\n13. Reliance was also placed upon the case of Hari Nath vs. State of U. P. reported in (988) 1 SCC 14 1987 Indlaw SC 28066. In this case the importance of test identification parade was being considered. It was held that the test identification parade only has corroborative value and that a test identification parade should be held with reasonable promptitude after the occurrence.\n14.  Based upon the aforesaid authorities it was submitted that the law, as laid down by this Court is that if there is delay in holding the test identification parade then it is difficult to believe that the witnesses would remember the facial expressions of the accused. It was submitted that the law is that such identification becomes suspicious and the accused must be given the benefit of doubt. We are unable to accept these submissions. In the case of Brij Mohan v. State of Rajasthan reported in AIR (1994) SC 739 1993 Indlaw SC 142 the test identification parade was held after 3 months.\n15. The argument was that it was not possible for the witnesses to remember, after a lapse of such time, the facial expressions of the accused. It was held that generally with lapse of time memory of witnesses would get dimmer and therefore the earlier the test identification parade is held it inspires more faith. It is held that no time limit could be fixed for holding a test identification parade. It is held that sometimes the crime itself is such that it would create a deep impression on the minds of the witnesses who had an occasion to see the culprits. It was held that this impression would include the facial impression of the culprits. It was held that such a deep impression would not be erased within a period of 3 months.\n16.  In the case of Daya Singh vs. State of Haryana reported in AIR 2001 SC 1188 2001 Indlaw SC 20277 the test identification parade was held after a period of almost 8 years inasmuch as the accused could not be arrested for a period of 7-1/2 years and after the arrest the test identification parade was held after a period of 6 months. The cases of Hari Nath 1987 Indlaw SC 28066 (supra) as well as Soni 1981 Indlaw SC 608 (supra) were relied upon on behalf of the accused in that case. Both these cases were considered by this Court. The injured witnesses had lost their son and daughter-in-law in the incident. It was pointed out that the purpose of test identification parade is to have the corroboration to the evidence of the eye witnesses in the form of earlier identification. It was held that the substantive evidence is the evidence given by the witness in the Court.\n17.  It was held that if that evidence is found to be reliable then the absence of corroboration by the test identification is not material. It was further held that the fact that the injured witnesses had lost their son and daughter-in-law showed that there were reasons for an enduring impression of the identity on the mind and memory of the witnesses. Reliance was also placed upon the following paragraph in the case of State of Maharashtra v. Suresh reported in (2000) 1 SCC 471 1999 Indlaw SC 768:\n\"We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that he prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.\"\n18.  This Court therefore concurred with the High Court that the categorical evidence of the witnesses received corroboration from the test identification parade even though it was held late. The conviction of the Appellants in that case was upheld.\n19. In the present case also Manoj was attacked by Chaman as well as the Appellant. He had a clear look at his assailants. Thereafter his younger brother came to save him and in that process got killed. Manoj also received serious injuries. These are circumstances which would impress upon the mind of Manoj the facial expressions of the assailants. This impression would not diminish or disappear within a period of 47 days. Similar is the case of the father and the mother of Manoj. They have seen the assailants attacking their sons and one of the sons getting killed. In their memory also the facial expressions of the assailants would get embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory.\n20.  All these witnesses have identified the Appellant. We are in agreement with the trial Court as well as the Appellate Court that their evidence is believable. In this view of the matter we see no infirmity in the impugned Judgment. We see no reason to interfere. The Appeal stands dismissed. The bail bond stands cancelled. The Appellant should be taken into custody forthwith to serve out the remaining period of sentence.\nAppeal dismissed\n"}
+{"id": "XFhmiXbIwX", "title": "", "text": "Brij Mohan and Others v State of Rajasthan\nSupreme Court of India\n\n16 December 1993\nCr.As. Nos. 245-246 of 1991\nThe Judgment was delivered by: N. P. SINGH, J.\n1.  The three appellants, Brij Mohan, Gulla and Barchia, were convicted under sections 396, 397, 450 and 397/149 of the Penal Code by the learned Additional Sessions Judge, who passed sentence of death under section 396 against of the appellants and various terms of imprisonment under the remaining sections. The High Court confirmed the conviction and the sentence against each of the three appellants, including the death sentence. On basis of leave granted by this Court, the appellants have questioned, the legality of their conviction and sentence.\n2.  The prosecution case is that Chiranji Lal (P.W. 7) and the inmates of his family were sleeping in their house in the night between 11th and 12th October, 1983 in Village Baswa. At about 1-00 a.m., Chiranji Lal heard the ladies of his family weeping and crying. He came in his courtyard and saw two or three persons giving blows to Smt. Gora (PW 6) and Smt. Gulab (deceased). The culprits also gave blows to Chiranji Lal (PW-7). In the meantime his brother's wife Smt. Saroj (PW-8) came to help them and she was also given blows. Some of the culprits were standing outside the house. One of them fired a gun shot. Hearing the gun shot, Mool Chand (deceased) rushed to the house of Chiranji Lal (PW-7). The culprits assaulted him with Pharsies and Lathies. Panna Lal (deceased) whose house was also near the house of Chiranji Lal also rushed to the spot and he was shot dead by the persons, who were standing outside the house. Smt. Shakuntla (PW-14) was also assaulted and beaten when she tried to resist the culprits. Bheru Lal (deceased) whose house is also situated nearby came near the house of Chiranji Lal and one of the culprits shot at him causing his death of the spot. The culprits thereafter decamped with tin boxes, suitcases, containing clothes, silver and gold ornaments, utensils and currency notes.\n3.  Ram Swroop (PW-1), the brother of Chiranji Lal, who had also rushed to the spot hearing the gun shots, saw six or seven persons going towards the Nallah with bags, boxes and guns in their hands. He found Mool Chand, Panna Lal, Bheru Lal, Smt. Gulab, Smt. Gora (PW-6), Chiranji Lal (PW-7), and Smt. Saroj (PW-8) lying injured. He immediately rushed to the police outpost and lodged a report (Ex. P-1) at about 2-15 a.m. The police Bandikui registered a case on the basis of the said statement. Jai Singh (PW-34) arrived at the spot and inspected the site. The injured persons were sent to the Government Hospital. Mool Chand, Panna Lal, Bheru Lal and Smt. Gulab were declared to be dead. The post-mortem examination on the dead bodies of Panna Lal and Bheru Lal who was of the opinion that the death was caused due to gun shot injuries. The post-mortem examination of Smt. Gulab and Mool Chand was conducted by Dr. P. S. Agrawal (PW-19). He noticed multiple ante-mortem injuries on the dead bodies and according to him, the cause of death was the fracture of skulls. The investigating officer found six fired 12 bore cartridges lying scattered. He also noticed foot impressions around the place of incident, on basis of which he got prepared moulds of the footprints. Smt. Shakuntla (PW-14) filed the list of looted properties. Chiranji Lal (PW-7) also gave the list of the stolen properties. The investigation continued but no clue could be found.\n4.  On 15-11-1983, Shashi Kant (P.W. 16), the then Station House Officer (hereinafter referred to as the 'SHO'), Kherli, Alwar, had an encounter during the night near a hillock with some dacoits and after exchange of gun shots he arrested six persons - four men and two women. The four men, who were arrested after an encounter, were the appellants Brij Mohan, Gulla, Barchia and Nahar Singh (who died during trial). After the arrest, on search, country made pistol, some fired and live cartridges, one barrel of 12 bore gun, apart from clothes and silver ornaments were found in possession of the appellants. For that a separate case was registered and investigation proceeded. However, as the modus operandi of the dacoities committed in the instant case at Baswa and in the case pending at Police Station, Kherli, was common, the SHO, Shashi Kant (PW-16) addressed a latter (Ex. P-36) on 27-11-1983 to the SHO, Police Station, Bandikui and sent under sealed packet at the articles recovered from the accused persons at the encounter by police Kherli, Ram Kripal (PW-37), the SHO, Police Station Bandikui, who had taken up the investigation in respect of the instant case went to District Jail, Alwar, on 12-1-1984 and arrested the appellants and Nahar Singh aforesaid and brought them to Bandikui Sub-Jail on 13-1-1984. The test identification of these appellants along with Nahar Singh (deceased) was arranged on 13-1-1984 itself. The test identification was conducted by the Judicial Magistrate, Shri O. P. Gupta (P.W. 17). At the said test identification, eleven witnesses correctly identified these appellants.\n5.  Consequent to information furnished by the accused persons, while they were in police custody, on 19-1-1984, some clothes, utensils and gold and silver ornaments looted in the dacoity at Baswa were recovered which had been kept hidden and concealed in the house of the appellant Barchia. The specimen moulds of the footprints of the appellants were taken, which were sent along with the footprints lifted from the place near the occurrence, for examination to the Finger Print Bureau, Jaipur. On examination, it transpired that both the footprints tallied with each other. The six empty cartridges lifted from the place of occurrence at village Baswa were found to have been fired from the pistol and barrel of the S.B.B.L. gun recovered from the appellants in the encounter on 15-11-1983. The trial Court convicted the appellants under different sections of the Penal Code referred to above and sentenced the appellants to death, as already mentioned, for offence under S. 396. The conviction and sentence of the appellants were confirmed by the High Court, which is being questioned, in the present appeals.\n6.  Mr. Garg, appearing amicus curiae for the appellants, first challenged the claim made by the witnesses, that they had identified the appellants, during the occurrence as well as at the test identification. According to him, as the dacoity was committed during the night in a house, unless it is established on basis of reliable evidence that there was some source of light in which the witnesses could have identified the culprits, any claim of identification of the culprits, by the witnesses should no be accepted, especially, when in the first information report as well as in the statements recorded during the investigation, no source of light was disclosed. It cannot be disputed that in cases relating to dacoity, the identification by the witnesses is the main evidence, as such the prosecution has to satisfy that the witnesses were in a position to identify the culprits, during the commission of the dacoity. This claim is later tested at the test identification, which although not a substantive evidence but is a mode to verify the claim the witnesses before they identify the accused persons in Court. Any such claim that the witnesses identified the culprits during the commission of the crime has to be examined by the Court with reference to the circumstance of a particular case. The Court has to be satisfied that there was not only ample opportunity for the witnesses to identify the culprits but they had identified them with the help of some light either in the house of outside.\n7.  In the present case, all the witnesses have asserted that electric light was there in the house, as well as on the road, when the dacoity was committed. The Trial Court as well as the High Court had dealt with this aspect of the matter in detail. The factum of there being electric connection in the house and on the road was not challenged on behalf of the appellants before the Trial Court. Only a suggestion was given that during the commission of the dacoity there was no supply of the electricity. Apart from a suggestion, there is nothing on the record on the basis of which it can be held that although the village had electric connections and electric light was in the house, but just at the time of commission of the dacoity there was a power failure. The claim of the witnesses regarding identification of the culprits in the electric light cannot be rejected merely on the ground that this fact was not mentioned in the first information report or in the statements made during investigation. It appears that as the village had electricity in the houses and on roads, the informant as well as the witnesses proceeded on the assumption that they were not required to disclose the means of identification by them because that was not at all a relevant fact, necessary to be mentioned, in the first information report or in their statements before the police. In village where there is no electricity and a claim is made regarding identification of the culprits during commission of dacoity, witnesses are expected to disclose the source of light by which they have identified the culprits during the night.\n8.  It was then urged that the SHO, Kherli, Alwar, who arrested these appellants in an encounter on 15-11-1983, got them falsely implicated even in the present case, by writing the aforesaid letter dated 27-11-1983 to SHO, Police Station Bandikui. It was also suggested that before the test identification was held on 13-1-1984, the appellants were shown to the witnesses. Reference was made to suggestions given to the witnesses that they were made to identify the appellants, before they were put up for the test identification. This has been always a ground in dacoity cases to challenge the identification by witnesses at a test identification by claiming that the police officer had shown the suspects to the witnesses before they were put up for test identification. Before accepting the identification by the witnesses at a test identification, the Court has to first consider the objection to such identification.Although this task is not very easy, but the Court has to the examine on the basis of the materials on record as to whether actually the suspects, who has already been shown to the witnesses.\n9. In the instant case, it is an admitted position that SHO, Police Station, Bandikui, went to District jail, Alwar, on 12-1-1984 and took custody of the appellants in connection with the present case and brought them to Bandikui and lodged them in Sub-Jail on 13-1-1984. Same day, the test identification was held in the presence of the Judicial Magistrate, Shri O. P. Gupta (PW-17), in which as many as 11 persons from Baswa participated and they correctly identified the appellants, although they had been mixed up with 11 others at the time of the test identification. If the SHO (PW-37) wanted to first get the appellants identified by the witnesses, in normal course, it was not expected that he would have held the test identification on 13-1-1984 itself, the day the appellants were brought to Bandikui. There was no difficulty in fixing the test identification on any later date and in the meantime, the appellants could have been shown witness. But the promptness with which the test identification was held, after the appellants were taken into custody in connection, with the present case is a circumstance, which satisfies the conscious of the Court about the genuineness and fairness of the test identification. When the appellants were produced before the Magistrate on 13-1-1984 for being remanded to custody, it was specifically mentioned in order sheet that they had been produced Baparda i.e. their faces had been concealed. This precaution was necessary, so that the witnesses may not see the appellants, while being produced for remand before the Magistrate.\n10.  It was pointed out, on behalf of the appellants, that the aforesaid test identification was held virtually after three months of the occurrence and as such it was not safe to trust such identification. It is true that with lapse of time, the memory of the witnesses, who have have seen the culprits at the time of the commission of the dacoity gets dimmer and dimmer, and the earliest the test identification is held, it inspires more faith about the fairness of the test identification. But no time limit can be fixed for holding a test identification, after which the investigating officer will be debarred from putting the suspects for test identification. While accepting the position that such test identifications should be held at the earliest, at the same time it cannot be ignored that it is not always within the reach of the investigating officer or up him to hold such test identification. Any test identification can be held only if some persons are arrested, who are suspected to have participated in the dacoity in question. The position will be different where in spite of such suspects being in custody, the test identification is postponed, there being no reasonable cause for the same. Once the investigating officer suspects that persons arrested are accused in connection with a particular dacoity, they should be put up for test identification at the earliest. It is imperative duty on the part of the investigating officer to put up such suspects at test identification without any delay. That gives sanctity to the test identification.\n11.  So far the present case is concerned, as the appellants were put on test identification within 24 hours of their arrest in connection with the present case, the identification made by the witnesses cannot be rejected merely on the ground that it was not possible for them to identify after lapse of a period of three months. This was not an ordinary case of dacoity; for commission thereof, four persons were killed, one of them being a lady. The gruesome and callous manner, in which the dacoity was committed by the culprits must have left a deep impression on the minds of the witnesses, who had occasion to see such culprits in the electric light during the course of commission of assault, firing and removal of the articles from the house in question. This deep impression will also include the facial impression of the culprits, which in normal course must not have been erased only within a period of three months.\n12.  So far the recovery of the articles on basis of the information given by the three appellants from the residence of the appellant Barchia is concerned, the investigating officer as well as the witnesses, who witnessed the recovery have fully supported the prosecution case. The Trial Court as well as the High Court have examined the different aspects relating to the said recovery and have come to the conclusion that the articles removed during the dacoity had been concealed in the different parts of the residence of the appellant Barchia and were recovered pursuant to the information given by the three appellants to the investigating officer. The only objection taken on behalf of the appellants before this Court is that it looked unnatural that stolen articles would have been kept at different places by the three appellants but within the same compounds i.e. the residence of the appellant Barchia. It is very difficult for have behaved after commission of the dacoity, in respect of disposal or concealment of the booty. According to us, there is nothing unnatural or improbable on the part of the articles in keeping their share of the stolen articles concealed in the residence of one of the appellants.\n13.  In the present case, the moulds of the footprints which had been compared with the moulds prepared of the footprints of the appellants after their arrest was an important piece of evidence. Unfortunately, such moulds were not produced before the Trial Court and only the expert proved his opinion. The Trial Court accepted that circumstances, but the High Court has rejected the same on the ground that prosecution should have produced the moulds of the footprints, before the Trial Court. The same is the position in respect of the cartridges found on the spot of the occurrence. That has also been discarded by the High Court on the ground that they were not produced before the Trial Court. We have doubt about the correctness of the approach of both the courts. But, even if the two circumstance, referred to above, are not taken into consideration, the identification of the appellants by 11 witnesses, coupled with the recovery made of the stolen articles, pursuance to the information given by the appellants, prove the prosecution case beyond all reasonable doubt that these appellants along with others entered into the house of Chiranji Lal (PW-7) and while committing dacoity caused the death of Mool Chand, Panna Lal, Bheru Lal and Smt. Gulab.\n14.  The facts of the case present a very tragic situation in which for removal of certain ornaments and other household articles, the appellants have taken the lives of four persons, which depicts the cruel and callous personalities of the appellants. But the question which still remains for consideration is as to whether it will be just and proper to affirm even the sentences of death passed against the three appellants, after a lapse of 10 years since the offence was committed. A Constitution Bench of this Court in the case of Bachan Singh v. State of Punjab, 1980 Indlaw SC 586:1980 Indlaw SC 586), held that the death penalty as an alternative punishment is not unreasonable and it is in public interest, but at the same time it was pointed out that legislative policy outlined in S. 354(3) was that for persons convicted for an offence, where it is open to the Court concerned to impose a sentence of death as well as imprisonment for life,\n\"life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.\"\n15.  Indeed, the appellants caused death of four persons and that too for greed. The question, however, it should they be awarded the extreme penalty of death ? keeping in view the facts and circumstances of the case, and particularly the accepted prosecution case that both Brij Mohan and Barchia, who are alleged to be armed with fire arms did not even enter the house to commit the dacoity and remained outside the house and caused the death of two persons outside the house, it was only the other accused persons who went inside the house differently armed, the number of injuries inflicted by them on the deceased inside the house and the weapons used in causing those injuries, while committing dacoity and not keeping or using the fire arms, which were otherwise available, it is not possible to say that it is the \"rarest of the rare cases\" which may warrant the imposition of the sentence of death for the occurrence which occurred more than a decade ago.\n16. In our opinion, it will meet the ends of justice, keeping in view the peculiar facts and circumstances of the case, if we substitute the sentence of death with that of sentence for imprisonment for life of all the appellants while maintaining their conviction as recorded by the courts below.\n17.  Accordingly, the appeals are allowed to a limited extent, that the sentence of death passed against the three appellants are substituted by life imprisonment. With this modification in sentence, the appeals are dismissed.\nAppeals dismissed.\n"}
+{"id": "0tveH30S5N", "title": "", "text": "Daya Singh v State of Haryana\nSupreme Court of India\n\n20 February 2001\nCriminal Appeal No. 416 of 1998\nThe Judgment was delivered by : M. B. Shah, J.\n1. In Sessions Case No.44 of 1989, 14-accused were tried for various offences including Sections 3 and 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA Act) by the Additional Judge, Designated Court, Karnal at Ambala. The Additional Judge by his judgment and order dated 19 February 1998 convicted the appellant Daya Singh for committing the offence of murder of Gurdeep Singh and attempting to commit murder of PWs Dr. Harnam Singh and Smt. Jaswant Kaur. The appellant is also convicted under Section 302 read with Section 34 IPC for committing murder of Khushdev Singh, Gurpreet Kaur and his co-accused Gurjant Singh and sentenced to suffer imprisonment for life and to pay a fine of Rs.10000/- in default of payment of fine to undergo further RI for a period of one year. He is also convicted for the offence punishable under Section 307 read with Section 34 IPC for attempting to cause death of Ram Singh, Somnath and Hira Singh by fire- arms and is sentenced to undergo RI for a period of ten years and to pay a fine of Rs.5000/-, in default of payment of fine to undergo RI for a period of six months. In addition, he is convicted for the offence punishable under Section 5 of TADA Act for possessing one AK 47 rifle with cartridges and is sentenced to undergo RI for seven years and to pay a fine of Rs.3000/-, in default of payment of fine to undergo RI for three months. All the sentences were ordered to run concurrently. The Designated Court acquitted rest of the accused.\n2. Against the order of conviction passed by the learned Judge, accused Daya Singh has preferred Criminal Appeal No.416 of 1998. In this appeal, learned senior counsel Mr. U.R. Lalit appearing for the appellant has confined his submissions mainly with regard to reliability of evidence of PW37 Jaswant Kaur and PW38 Dr. Harnam Singh qua the identification of the appellant.\n3. The State has filed Criminal Appeal No.773 of 1998 against the acquittal order and also for enhancement of sentence. With regard to the appeal filed by the State, after going through the evidence on record, it is apparent that the order passed by the Additional Judge does not call for any interference. Confessional statements are found to be not voluntary and are held to be unreliable. There is no other evidence to connect the acquitted accused with the crime.\n4. The incident relates to attack by the terrorists on 09 April 1988 in the house of one Dr. Harnam Singh at Kurukshetra which has resulted in loss of his son Khushdev Singh, daughter-in-law Gurpreet Kaur, Gurdeep Singh son of his brother-in-law and one assailant Gurjant Singh and injuries to other persons. At the time of hearing of this appeal, prosecution version relating to the incident of the murder of four persons at the place of incident and injuries to the witnesses is not disputed. For considering the submissions and appreciating the evidence relating to the contentions raised by the learned counsel for the parties, we would refer to the evidence of Dr. Harnam Singh, PW38 and his wife Smt. Jaswant Kaur, PW37. It is the say of Dr. Harnam Singh that he is a worker of communist party and was elected as MLA in the year 1987 from Shahabad. On 09 April 1988at about 8.15 to 8.30 p.m. when he was present in his house, one person came in his courtyard and called upon him. In the courtyard two electric bulbs were on at that time. When he came out from his room, he saw one well-built Sikh gentleman aged about 26-27 years having small beard holding a revolver in his hand. He ran towards him and caught hold of him. On hearing the noise, his wife came out of the room. She also caught hold of that Sikh from his hairs. At that time, one other person came from outside holding stengun type arm. He was having a long beard and having eyes like that of a cat. That man started firing and a pellet hit his left arm. The shots also hit abdomen of his wife. At that time his son, Khushdev Singh, daughter-in-law Gurpreet Kaur and Gurdeep Singh son of his brother-in-law who were watching TV came outside. The man who was having eyes like a cat fired shots towards them and because of the injury sustained, Gurdeep Singh fell down on the main gate. His son Khushdev Singh caught hold of that man and tried to take away the stengun. It is his further say that when Khushdev Singh was holding the person, he fired shots from his fire-arm towards Khushdev Singh and Gurpreet Kaur. When Khushdev was grappling with him, he rushed to his room to make a telephone call and informed at police station that he was attacked and shots were being fired. He has further deposed that when he went outside the room, the third miscreant who was standing on the main door fired shots towards that room. During the grappling, one blanket, one shoe, one turban, one Jutti had fallen down in the courtyard. The magazine of the stengun had also fallen down. When he came out of the room after telephonic call, the miscreants had fled and saw that Gurdeep Singh was lying dead at the entrance gate. Khushdev Singh and Gurpreet Kaur, who were dragged outside by Daya Singh and with whom they were grappling, were lying in the street on the right side of the main gate in an injured condition.\n5. The terrorist who was caught and dragged out by his wife was also lying dead. Khushdev and Gurpreet were removed to the civil hospital. They succumbed to their injuries within few minutes in the hospital. Thereafter, he alongwith his wife and Hira Singh were referred to PGI Hospital. He has also deposed with regard to the investigation carried out by the police including the recovery of certain articles from the scene of offence. It is his further say that on 07 May 1988, he and his wife were taken by the police to Civil Hospital, Rajpura as it was stated that two terrorists had been shot dead and they were to be identified by them. Out of the two dead bodies, they identified one as the person who had fired shots towards him while he was standing on the main gate. With regard to the identification of the accused he stated that he could identify and recognize the person who fired shots and has identified the appellant Daya Singh. The learned Judge has noted that at that time as there was no electricity in the Court room, the accused, witnesses, advocates and he himself went outside the court room where the accused was identified by Dr. Harnam Singh in second round which took 3 to 4 minutes. In cross-examination, he has stated that he was using spectacles since last more than 40 years and he could see up to a distance of 30 to 40 or 100 yards with the help of spectacles and could identify a person from a distance of 20 to 25 yards. He has also stated that during the time of identification as there was no electric light in the court room and was dark, he was required to go outside the court room and there he had identified the accused. He has clarified what he understood by catty eyes and stated that eyes were like that of a cat and nothing more. The witness was asked whether he could say that the eye of other accused named Inderjeet Singh was like cat. To that, his reply was his eyes were normal and not like that of a cat. He has also stated that he has seen accused Daya Singh on the date of incident from a distance ranging from one yard to 3-4 yards and that Daya Singh had fired from a distance of 3 yards in the courtyard.\n6. In further cross examination, he has stated that he knew the name of accused Daya Singh prior to 06 February 1997because he was informed by the police at the time of interrogation of the accused on the basis that he was having eyes like a cat and that he came to know his name within two to four months of the occurrence. He has also stated that he along with his wife visited Central Jail, Ambala for identification of the accused, but they were informed that accused Daya Singh had refused to participate in the identification parade. It was his say that he identified the accused Daya Singh after wearing and even after removing spectacles and that at the time of identification, he had removed the spectacles in order to satisfy himself that accused Daya Singh was the same person. He had denied the suggestion that he had wrongly identified the accused at the instance of the police. In view of the limited contention raised in the appeal, other part of the evidence is not required to be referred in this appeal.\n7. Similar is the evidence of Jaswant Kaur PW37. It is her say that on 09 April 1988 at about 8.15 to 8.30 p.m. her husband Dr. Harnam Singh was working in his room and her son Khushdev Singh, daughter-in-law Gurpreet Kaur and Gurdeep Singh were watching T.V. programme. At that time, one person came from outside and called Doctor Sahib (her husband). In the courtyard, two bulbs of electricity were on at that time. On hearing the call of her husband, she went out and saw one Sikh gentleman, aged about 25-26 years-who was well built, having small beard and holding a pistol in his hand, was caught hold by her husband. She also caught hold of his hairs. Subsequently, one other Sikh who was also well built, having thick beard and eyes like cat holding firearms came towards them. He fired and the shots hit on the left arm of her husband and also on her abdomen. On hearing the sound of fire shots, Gurdeep Singh followed by her son Khushdev Singh and daughter-in-law Gurpreet Kaur came out. It is her say that again that Sikh fired shot towards Gurdeep Singh which hit his body and he died on the spot. Thereafter, Khushdev Singh and Gurpreet Kaur grappled with that Sikh who was firing shots. In the process of grappling, that Sikh, Gurpreet Kaur and Khushdev Singh went out in the street. Other Sikh who was held by her came out in the process of grappling and his pistol had fallen down in that process. One blanket, one turban and one of the shoes of that Sikh gentleman also fell in the courtyard of her house. It is her say that when they came out, they found another Sikh gentleman who was well built, tall, having whitish complexion and black and round eyes.\n8. That Sikh also fired shots from his fire-arm towards Khushdev Singh, Gurpreet Kaur and herself. Khushdev Singh and Gurpreet Kaur received injuries on various parts of their bodies. During that firing, the Sikh who was held by her also received injuries and he fell down. Khushdev Singh, Gurpreet Kaur and the Sikh who received fire shots died at the spot in the street. It is her further say that her brother Hira Singh, (PW40) also reached at the scene of occurrence on hearing noise. He received injuries by firearm. One Somnath PW47 also came there and he also received injuries. It is her say that she could identify the Sikh who had entered the courtyard of her house and had fired shots from his firearm upon her and her husband. She has admitted that her eye-sight was weak. After looking at the accused, she raised suspicion on one of the accused whose name on inquiry was revealed Daya Singh (appellant). She said that this accused is the same person who had fired shots on her and her husband. She again stated that she had recognized this accused, but as he was not opening his eyes, she has used the words that she was identifying on suspicion. The learned Judge has noted that the witness had taken nearly five minutes in identifying the accused out of all the accused present in the Court. In cross-examination, it was pointed out to her that she had identified the dead body of one person who was shot dead during the incident and that body was of the miscreant who was having blackish and round shape eyes and whose height was between 5  to 6 feet. She has further stated that at the time of incident her eye sight was normal, but subsequently one of her eyes was operated and nothing was visible from that eye and at present she could see an object from a distance of about one feet with the help of spectacle. She has also stated that accused Daya Singh has similar features which she remembered since the date of occurrence and, therefore, she was in a position to identify him even though he had not opened his eyes. She has denied the suggestion that she has wrongly identified Daya Singh at the instance of police. She has pointed out that during the incident, electric bulbs were fitted in the courtyard. She was asked with regard to the complexion of the accused and she replied that Daya Singh was having whitish complexion and that it was incorrect to suggest that Daya Singh was of fair complexion. To her, other accused namely Parshottam Singh and Jaspal Singh were shown and she was asked to differentiate between the complexion of the accused Daya Singh and those two persons. To that, she replied that she can not differentiate. Further, PW39 Ram Singh was passing by near the house of Dr. Harnam Singh and near electric poll, he was injured by a shot but had not seen as to who fired the shot. He has stated that it was dark at the scene of occurrence. Similarly, Hira Singh PW40, brother-in-law and a neighbour of Dr. Harnam Singh had also received injury at the time of incident when he came out of the house and gave Lalkara. He was also removed to the hospital. He failed to identify the accused. Similarly, one Somnath (PW47) after hearing the noise and sound of fire came to know that terrorists have come. He was going from the house of his uncle towards his house. On the way two persons came running and struck against him. One was holding a small firearm which was perhaps a revolver and other was holding firearm like stengun. He tried to catch hold of one person and collided with him. At that time, there was firing from the opposite direction and one shot hit him on his right arm. It is his say that the person who was collided with him was not present in the Court room. It is the prosecution version that FIR was lodged by one Gagandeep Singh (PW29) who was returning to his house in the evening and after hearing sound of fire shots he rushed at the scene of occurrence and found that Khushdev Singh and Gurpreet Kaur were grappling with 3 to 4 Sikhs. He raised a noise addressing to those persons and one of them ran towards him with a stengun and so being frightened he came back and hid himself. He again went at the house of Harnam Singh after 4 to 5 minutes and found that terrorists had already left. He found that Gurpreet Kaur and Khushdev Singh were seriously injured and his elder brother Gurdeep Singh was lying dead at the spot. He rushed to the police station but on the way the police met him and his statement was recorded.\n9. Prosecution has also relied upon Harbans Singh PW43, Land Acquisition Officer who was posted as Tehsildar, Kurukshetra on 02 June 1988. He had gone for conducting identification parade in Central Jail, Ambala at the instance of S.P. Kurukshetra. It is his say that he reached Central Jail at 5.00 p.m. and Daya Singh was produced before him by the jail authorities. He informed Daya Singh that he had come for conducting identification parade, but Daya Singh refused to participate on the ground that he had already been shown by the police to the expected witnesses. His statement was accordingly recorded by him and the said statement alongwith his report was sent to the S.P. Kurukshetra. In cross-examination, he has stated that he was not knowing accused Daya Singh personally, but was identified by the jail authorities. He further stated that he could not identify the accused Daya Singh out of the accused persons present in the court. He has also stated that he was not knowing Jaswant Kaur PW37 personally and could not say whether she was present outside the jail premises on that day or not. He denied the suggestion that accused Daya Singh never refused for such an identification parade and that he was deposing falsely.\n10. PW45 Roshan Singh, DIG, CISF, New Delhi has deposed that on 05 May 1988, 22 May 1998, 02 June 1998 and 14 June 1998 , he had recorded the confessional statements of number of accused. It is his say that on 29 June 1998 , he visited CIA, Kurukshetra and recorded the confessional statement of Daya Singh, which was produced as Ex. PW45/W. It is his say that the accused made the statement voluntarily which was read over to him and his signatures were taken. He also appended the certificate Ex. PW45/W-1 below the confessional statement and the said confessional statement was sent to the C.J.M., Kurukshetra on the same day in a sealed envelope. He has stated that he could not identify the persons including Daya Singh whose confessional statements were recorded by him on various dates mentioned above. In cross-examination, he has admitted that many police officers were present in the police station when confessional statements were recorded. Further as discussed by the learned Judge, he has not followed the necessary procedure of recording confessional statement and that the same is not voluntary. Therefore, the said confessional statement is rightly not relied upon by the trial court. Further almost all the confessional statements of the accused persons except that of Parshottam Singh were recorded by the Reader of the S.P., who is not examined. Other part of the prosecution evidence is not required to be reiterated as the controversy in the appeal is in a narrow-compass.\n11. The learned counsel Mr. Lalit submitted that conviction of the appellant is based solely on the identification of the accused in the Court by PW37 and PW38. He contended that the incident took place in April, 1988 and identification in the Court by Smt. Jaswant Kaur (PW37) is in November, 1996 i.e. after lapse of seven and half years. Similarly, identification by Dr. Harnam Singh (PW38) is after eight years. Therefore, on this sole ground of delay in identification, their evidence can not be relied upon for convicting the accused. He contended that it is difficult for the witnesses to identify the accused after long lapse, unless they are repeatedly seen. He pointed out that in this case there is possibility that accused could have been seen in the court before identification. He further contended that other injured witnesses namely PW29 Gagandeep Singh, who lodged FIR, PW40 Hira Singh and PW47 Somnath have not identified the accused. He pointed out that PW29 has not specifically stated about the light in the courtyard but has only stated that because of the street light he could see the accused and that Ram Singh admits that it was night time and dark at the scene of occurrence. Even Hira Singh has admitted that because of long lapse of time, he could not identify the assailants. Independent witness Tehsildar (PW43) who had gone for test identification parade has also failed to identify the accused. Similarly, the SP (PW45) who allegedly recorded the confessional statement has also failed to identify the accused. In such circumstances, it would not be safe to rely upon the evidence of the aforesaid two witnesses for convicting the accused. Lastly, he contended that even deposition of PW37 and PW38 qua identification is halting one and, therefore, also benefit of doubt is required to be given to the accused. In support of his contention he placed reliance on decision of this Court in Hari Nath and Another v. State of U.P. [AIR 1988 SC 345 1987 Indlaw SC 28066]. Learned counsel for the appellant has also relied upon the decisions of this Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh [AIR 1983 SC 367 1982 Indlaw SC 63], Wakil Singh and Others v. State of Bihar [AIR 1981 SC 1392 1981 Indlaw SC 48] and Soni v. State of UP [(1982) 3 SCC 368] 1981 Indlaw SC 608 wherein the Court has observed that identification parade after some time lapse would be of no consequence and, therefore, on the basis of such identification, accused cannot be convicted.\n12. As against this, learned counsel for the State submitted that the Designated Court has rightly convicted the accused on the basis of clinching evidence of PW37 and PW38 who apart from being injured witnesses have lost their son and daughter-in-law during the incident which had taken place in their house. It is submitted that accused were terrorists and in such cases, there is no question of having other independent witnesses. Even if independent witnesses were available, they would not dare to make any statement against the accused. He pointed out that as held by the learned Judge, investigation was sluggish but that is no ground for not relying upon the evidence of PW37 and PW38. It is his contention that it would be unreasonable to expect Superintendent of Police, who recorded the confessional statement of number of accused in the case in the year 1988, to identify the accused after lapse of seven to eight years. Similarly, the Tehsildar who had gone to hold identification parade also is not expected to identity the accused. It his contention that court has rightly relied upon the evidence of injured affected witnesses and for this purpose he referred to the observations made by the Designated Court to the effect that physical features of accused Daya Singh must have been embedded in the memory of Jaswant Kaur just like a gali stone because it was he who with his co- assailants committed the gruesome crime.\n13. At this stage we would first refer to the decisions upon which reliance is placed. In the case of Soni 1981 Indlaw SC 608 (Supra), this Court observed that delay of 42 days in holding the identification parade throws a doubt on genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering facial expression of the appellant. In the case of Mohd. Abdul Hafeez 1982 Indlaw SC 63 (Supra), the Court while dealing with a robbery case observed that as no identification parade was held, no reliance can be placed on the identification of accused after lapse of four months in the court. In the case of Hari Nath 1987 Indlaw SC 28066 (Supra), the Court observed that evidence of test identification is admissible under Section 9 of Evidence Act. But the value of test identification, apart from the other safeguards appropriate to a fair test of identification depends upon the promptitude in point of time with which the suspected persons are put up for test identification. If there is an unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test. The Court further referred to Prof. Borchards Convicting the Innocent on the basis of error in identification of the accused. The learned author has observed: The emotional balance of the victim or eye-witness is so disturbed by his extra-ordinary experience that his powers of perception become distorted and his identification is frequently most untrustworthy. Into the identification enter other motives not necessarily stimulated originally by the accused personally the desire to requite a crime, to exact vengeance upon the person believed guilty, to find a scapegoat, to support, consciously or unconsciously, an identification already made by another. Thus, doubts are resolved against the accused.\nIn the paragraphs below, the Court has observed as under:-\n14. The evidence of identification merely corroborates and strengthens the oral testimony in Court which alone is the primary and substantive evidence as to identity. In Hasib v. State of Bihar [AIR 1972 SC 283] 1971 Indlaw SC 794 this Court observed:\n15. The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding.\n16. In Rameshwar Singh v. State of J & K, [AIR 1972 SC 102 1971 Indlaw SC 210], this Court observed (at p.104):\n17. It may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the formers arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial.\n18. It is, no doubt, true that absence of corroboration by test identification may not assume any materiality if either the witness had known the accused earlier or where the reasons for gaining an enduring impress of the identity on the mind and memory of the witness are, otherwise, brought out. It is also rightly said that\n19. Courts ought not to increase the difficulties by magnifying theoretical possibilities. It is their province to deal with matters actual and material to promote order and not surrender it by excessive theorising or by magnifying what in practice is really unimportant.\n20. The question, therefore, iswhether the evidence of injured eyewitnesses PW37 and PW38 is sufficient to connect the appellant with the crime beyond reasonable doubt. For this purpose, it is to be borne in mind that purpose of test identification is to have corroboration to the evidence of the eyewitnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant. In such cases, not holding of identification parade is not fatal to the prosecution. The purpose of identification parade is succinctly stated by this Court in State of Maharashtra v. Suresh [(2000) 1 SCC 471 1999 Indlaw SC 768] as under:\n21. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.\n22. In the present case, there is no lapse on the part of the Investigating Officer in holding the test identification parade. The appellant was arrested on 28 May 1998 and the identification parade was to be held on 2nd June, but on that day accused refused to take part in the parade. For his arrest, PW45 Resham Singh, DIG and PW46 Bishan Singh, CIA Inspector have specifically stated that the appellant was arrested on 27 May 1988 by the Punjab Police and was brought at Kurukshetra on 28 May 1998 and was sent in judicial custody as he was to be identified. Further, there is no reason to disbelieve the evidence of Tehsildar who had gone there for holding the test identification parade of accused. Learned Senior Counsel Mr. Lalit repeatedly submitted that investigating officer has not produced on record the statement of the accused recorded by Tehsildar and the report submitted by him and, therefore, no credence should be given to the evidence of Tehsildar. In our view, this submission is totally misconceived. It is true that if the investigating officer had produced on record the statement of accused and the report submitted by Tehsildar, it would have corroborated his say. But in our view the evidence of such disinterested, independent, official witness does not require any corroboration. In cross-examination, the Tehsildar has specifically stated that he did not know the accused Daya Singh personally but accused was identified by the jail authorities. He has also denied the suggestion that Daya Singh never refused for such identification parade and that he was deposing falsely. Tehsildar was least interested in the prosecution or falsely involving the accused. Further, he is not expected to know the accused personally nor to remember his face for years.\n23. He was discharging his official functions and is not expected to memorise the identity of the persons whose statements he had recorded. There is no reason to hold that jail authorities have committed any mistake in producing Daya Singh before the Tehsildar for parade. Further, the evidence of Tehsildar that he had gone to Central Jail for identification parade gets corroboration from the evidence of PW38 who also went to the Central Jail, Ambala for identifying the accused, but they were informed that the accused had refused to participate in the test parade. It is to be stated that in such a situation, this Court in Suraj Pal v. State of Haryana [(1995) 2 SCC 64] 1994 Indlaw SC 549 held that substantive evidence identifying witness is his evidence made in the Court and if the accused in exercise of his own volition declined to submit for test parade without any reasonable cause, he did so on his own risk for which he cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable. The Court observed it is true that they could not have been compelled to line up for test parade but they did so on their own risk for which the prosecution could not be blamed for not holding the test parade. In that case also, the Court disbelieved the justification given by the accused for not participating in the identification parade on the ground that accused were shown by the police to the witnesses. Same is the position in the present case. Further, there is no reason to disbelieve the evidence of Dr. Harnam Singh and his wife Jaswant Kaur when they identified the accused out of 14 persons who were facing the trial. Their evidence is cogent and consistent with regard to the identification of appellant. The conduct of Dr. Harnam Singh was natural in the court premises. As there was no electricity in the court room, he identified the accused after going outside the court room in the second round which took 3-4 minutes. He had seen accused Daya Singh grappling with his son and daughter-in-law. The identification by this witness was tested in the cross-examination and in our view, he stood the test of cross-examination. He gave specific physiognomy of the accused by stating that he was having catty eyes meaning thereby the eyes like a cat. He has also stated that he had seen the accused from a distance ranging from 1 yard to 3-4 yards and that the appellant-accused had fired from 3-4 yards in the courtyard. This witness alongwith his wife has also identified the dead body of one other co-assailant Daljinder Singh alias Chandibaba on 07 May 1988. In the cross-examination, he further stated that he could identify the appellant after wearing and removing the spectacles and has done so in the court room. Similarly, Jaswant Kaur also identified the appellant as the assailant. Her evidence is so natural that it is impossible to believe that she is falsely involving the accused-appellant. In the beginning, she raised suspicion on one of the accused who was not opening his eyes as the appellant and identified the said person as the person who had fired shots on her and her husband. This identification was done after taking five minutes. She deposed that Daya Singh was having similar features which she remembers since the date of occurrence and has denied the suggestion that she has wrongly identified the accused at the instance of police. PW38 Dr. Harnam Singh who was a Doctor and also an MLA would not involve the appellant falsely in such a heinous crime. There was no reason suggested to the witness for involving the appellant in the crime. Similarly, Jaswant Kaur was also not having any interest in the accused. However, the learned counsel for the appellant, Mr. Lalit referred the say as noted by Professor Borchardsthe emotional balance of the victim or eye-witness is so disturbed by his extra-ordinary experience that his powers of perception become distorted and his identification is untrustworthy... It is true that PWs 37 and 38 have lost their son, daughter-in-law and son of brother-in- law and that it was extraordinary experience for them to be assaulted by terrorists. But, it would be difficult to hold that at that time, they had lost their power of perception. Theoretically in some cases what has been noted by the learned author may be true. For that purpose, the evidence of the witness is required to be appreciated with extra care and caution. But, where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses and with regard to their power of memorizing the identity of the assailants. Power of perception and memorising differs from man to man and also depends upon situation. It also depends upon capacity to recaptulate what has been seen earlier. But that would depend upon the strength or trustworthiness of the witnesses who have identified the accused in the Court earlier.\n24. Further in the present case, identification in the Court was out of 14 persons. That itself would lend credence to identification by the witnesses. For this purpose, learned Judge has rightly observed to the effect that physical features of accused must have been embedded in the memory of Jaswant Kaur. From the evidence and the cross-examination of these two witnesses, it is apparent that they gained enduring impression of the identity of the accused during the incident. Therefore, delay in trial by the Designated Judge for one reason or the other and thereafter identification of the accused in the Court after seven or eight years would not affect the evidence of these two witnesses. Similarly, if the prosecution was interested in falsely involving the accused, Gagandeep Singh PW29, Hira Singh PW40 and Somnath PW47 were having opportunity to identify the accused at the time of trial.\n25. However, the learned counsel for the appellant submitted that as they have not identified the accused, evidence of Jaswant Kaur PW37 and Dr. Harnam Singh PW38 becomes suspect. In our view, this reaSoning is fallacious firstly on the ground that it is not expected that all the witnesses should be in a position to identify the accused nor their evidence can be compared in the way suggested by the learned counsel. Secondly, in the present case, the aforesaid witnesses got injuries when they were outside the premises of Dr. Harnam Singh. Learned counsel for the appellant further submitted that Tehsildar PW43 who had opportunity of recording the statement of the appellant and Resham Singh, DIG PW45 who had recorded the confessional statement which runs into more than 10 pages have not identified the accused in the Court. In our view, Tehsildar and DIG were discharging their official functions and were not at all affected by the incident so as to memorise the identity of the accused. At this stage, we would note one other submission made by learned counsel Mr. U.R. Lalit with regard to two electric bulbs in the courtyard. In our view, the submission on this count does not deserve much consideration. The incident took place at evening time between 8.00 to 8.30 p.m. (in the month of April) and not dead at night, where there may be difficulty of seeing the faces of the accused. Further, it is to be born in mind that terrorists entered the house which was situated in the city, that too, of an MLA and it would be difficult to hold that two electric bulbs in the courtyard were not on at the relevant time. Therefore, the learned Judge has rightly appreciated this aspect in his judgment.\n26. We, therefore, broadly agree with the appreciation of evidence recorded by the learned Judge for convicting the accused Daya Singh and acquitting rest of the accused.\nIn the result, both the appeals are dismissed.\n"}
+{"id": "GF9IyDN8pb", "title": "", "text": "Malkhansingh and Others v State of Madhya Pradesh\nSupreme Court of India\n\n8 July 2003\nAppeal (crl.) 1299-1300 of 2002\nThe Judgment was delivered by : B. P. Singh, J.\n1.  The three appellants herein were tried by the Second Additional Sessions Judge, Vidisha, M.P. in Sessions Trial No. 76 of 1992 charged of offences under section 3(1)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989; section 376 (2)(G) and section 506 of the Indian Penal Code on the allegation that they had, on March 4, 1992, committed gang rape and criminally intimidated Kumari Lusia a tribal woman, who was posted as Assistant Teacher in the Primary Government School at Village Bagod. The trial court acquitted them of the charge under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 but found them guilty of the offence under section 376(2)(G) of the Indian Penal Code and sentenced them to ten years rigorous imprisonment and a fine of Rs.2,000/- each under that section. It further found them guilty of the offence under section 506 Part II of the Indian Penal Code for which they were sentenced to one year rigorous imprisonment. Aggrieved by the judgment and order of the trial court, the appellant Malkhansingh preferred Criminal Appeal No. 49 of 1997 while the other two appellants filed Criminal Appeal No. 76 of 1997 before the High Court of Madhya Pradesh at Jabalpur. The High Court by its impugned judgment and order of March 11, 2002 dismissed the appeals. The appellants have preferred these two appeals by special leave.\n2.  The case of the prosecution is that the prosecutrix Kumari Lusiya was working as Assistant Teacher in the Government Primary School at village Bagod. She was aged about 28 years and was unmarried. On March 4, 1992 at about 11.30 a.m. she boarded a bus to go to Bagod and alighted from the bus at about 1.00 p.m. at a place known as Zero Chain Puliya from where her school was located at a distance of about 1 kilometer. After alighting from the bus she proceeded on foot to the school in village Bagod. When she was near the tapara of Baldar Khan she noticed that she was being followed by three persons. When she proceeded some distance she suspected that some of them had come very close to her. She moved to the edge of the path-way giving way to the persons behind her to go ahead. However, one of them, later identified at appellant Maharajsingh, caught hold of her hands from behind. The prosecutrix objected and raised an alarm calling out for Baldar Khan but no one came to her rescue. On the other hand appellant Malkhansingh took out a knife and threatened her. Appellant Musab Khan also took out a knife and threatened her into silence. Two of them then dragged her towards the canal where she was further threatened and made to lie on the ground. When again she persisted in raising alarm, appellant Maharajsingh placed a knife on her neck and tried to press her neck. Thereafter the appellants Musab Khan and Malkhansingh removed her clothes and Musab Khan was the first person to sexually assault her followed by Maharajsingh and Malkhansingh. Thereafter they left her giving threats of dire consequences if she reported the matter to the police and reminded her that she would meet the same fate, which Madam Rekha had met, if she reported the matter to the police.\n3.  After the occurrence the prosecutrix left for her home at Bagod and went to school at about 3.00 p.m. On the next day she attended the school but thereafter went to Vidisha accompanied by another teacher Mangalsingh. At Vidisha she met the Deputy Director of Education, one Mr. Dutta, on March 6, 1992 to whom she narrated the incident and told him that the three boys were after her life and it was not safe for her to go back to Bagod. She requested that she may be transferred to some other school. According to the prsocutrix, Mr. Dutta attached her to a school at Khamkheda with effect from March 10, 1992. She narrated the incident to her colleague Shri Mangalsingh on March 12, 1992, who inturn reported the matter to Kaluram, PW.3, who was the President of District Teachers Association. On March 14, 1992 Shri Kaluram, PW.3, took her to the residence of Superintendent of Police, Vidisha where the prosecutrix handed over a typed complaint to the Superintendent of Police. The said complaint was forwarded to the Kotwali, Vidisha, where a crime was registered. The prosecutrix was thereafter medically examined by Dr. Manju Singhai, PW.1, on the same day at about 6.45 p.m. Her clothes were seized and handed over to the police. The Vidisha police sent the relevant papers to Police Station Satpada, since village Bagod fell within the jurisdiction of that police station. The case was investigated and ultimately Musab Khan was arrested on March 29, 1992 while the others were arrested on March 26, 1992. The appellants were put up for trial before the Additional Sessions Judge, Vidisha, where the prosecutrix identified them as the three persons who had subjected her to sexual assault and criminal intimidation.\n4.  A few facts which may be noticed at the threshold are that the investigating officer did not consider it necessary to hold the test identification parade. Surprisingly, the prosecution did not examine its witnesses Shri Mangal Singh and Shri Dutta, Deputy Director of Education, to whom she had narrated the incident on March 6, 1992. Before the trial court as well as before the High Court it was urged on behalf of the defence that there was considerable delay in lodging the first information report and therefore not much reliance could be placed upon the testimony of the prosecutrix. It was also urged that the medical evidence on record did not support the case of the prosecution. Lastly it was submitted that in the absence of a test identification parade, the identification of the appellants by the prosecutrix before the trial court had no value whatsoever and, therefore, the conviction of the appellants was not justified in law.\n5.  The trial court as well as the High Court have carefully considered the evidence on record and have come to the conclusion that the delay, if any, in lodging the first information report was fully explained by the prosecutrix and was strongly supported by the circumstantial evidence on record. The courts below have noticed the fact that the prosecutrix was living all alone and was an unmarried person, about 28 years of age. She did not have any family member to whom she could have narrated her story immediately after the occurrence. Moreover the sense of shame coupled with the fear on account of threats given out by the appellants must have deterred her from immediately reporting about the occurrence to others. Even so, according to her, she narrated the incident to Shri Dutta, Deputy Director of Education on March 6, 1992. Later she narrated the incident to one of her colleagues whom she found to be sympathetic towards her and thereafter when her cause was taken up by the teachers association, she could muster courage to lodge a report with the Superintendent of Police. The courts below have, therefore, rightly held that in the facts and circumstances of the case, the mere delay in lodging of the first information report does not discredit the prosecution case. The courts below have also examined the medical evidence on record and have observed that the medical evidence, to some extent, supported the case of the prosecution that the prosecutrix may have been subjected to forcible sexual intercourse within a week or two of her medical examination. The medical evidence also indicated that the prosecutrix was not habituated to sexual intercourse. We find no reason to dis-agree with the findings recorded by the courts below on these aspects of the matter.\n6.  The principal submission urged before the courts below as also before us is whether the conviction of the appellants can be sustained on the basis of the identification of the appellants by the prosecutrix in court without holding a test identification parade in the course of investigation. While the appellants contend that the identification in court not preceded by a test identification parade is of no evidentiary value, the prosecution contends that the substantive evidence is the evidence of identification in court and, therefore, the value to be attached to such identification must depend on facts and circumstances of each case. No general rule could be laid that such identification in the court is of no value.\n7.  It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad vs. Delhi Administration : AIR 1958 SC 350 1958 Indlaw SC 58; Vaikuntam Chandrappa and others vs. State of Andhra Pradesh: AIR 1960 SC 1340 1959 Indlaw SC 284 ; Budhsen and another vs. State of U.P. : AIR 1970 SC 1321 1970 Indlaw SC 136 and Rameshwar Singh vs. State of Jammu and Kashmir : (1971) 2 SCC 715 1971 Indlaw SC 210 ).\n8.  In Jadunath Singh and another vs. The State of Uttar Pradesh : (1970) 3 SCC 518 1970 Indlaw SC 397 the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani vs. The State of Rajasthan : (Criminal Appeal No.92 of 1956 decided on January 15, 1957) wherein it was observed :-\n\"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of P.W. 7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person, who is well-known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances.\"\nThe Court concluded :\n\"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani V. The State of Rajasthan (supra), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case.\"\n9.  In Harbajan Singh vs. State of Jammu and Kashmir : (1975) 4 SCC 480 1975 Indlaw SC 544, though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in court corroborated by other circumstantial evidence. In that case it was found that that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held :-\n\"In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh vs. State of U.P 1970 Indlaw SC 397., absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant.\"\n10.  It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.\n11.  In Ram Nath Mahto vs. State of Bihar : (1996) 8 SCC 630 1996 Indlaw SC 2988 this Court upheld the conviction of the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. This Court noticed the observations of the trial judge who had recorded his remarks about the demeanour that the witness perhaps was afraid of the accused as he was trembling at the stare of Ram Nath, accused. This Court also relied upon the evidence of the Magistrate, PW.7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the Courts below had convicted the appellant, there was no reason to interfere.\n12.  In Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1) SCC 80 1994 Indlaw SC 354 this Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.\nThereafter this Court observed :-\n\"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade.\"\n13.  In State of Uttar Pradesh vs. Boota Singh and others : (1979) 1 SCC 31 1978 Indlaw SC 291 this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.\n14.  In Ramanbhai Naranbhai Patel and others vs. State of Gujarat : (2000) 1 SCC 358 1999 Indlaw SC 855 after considering the earlier decisions this Court observed :-\n\"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) vs. V.C. Shukla wherein also Fazal Ali, J. speaking for a three Jude Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eyewitnesses.\nIt, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra and State of H.P. vs. Lekh Raj had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three- Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned counsel for the appellants that the evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them.\"\n15.  In the light of the principle laid down by this Court we may now examine the facts of this case.\n16.  It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants.\n17.  After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity.\n18.  The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.\n19.  We, therefore, find no merit in these appeals and the same are accordingly dismissed.\nAppeal dismissed\n"}
+{"id": "JtVEFEtb6F", "title": "", "text": "Subash Shiv Shankar v State of Uttar Pradesh\nSupreme Court of India\n\n14 April 1987\nCr.A. Nos. 287-288 of 1978. From the Judgment and Order Dt. 14.10.1977 of the Allahabad High Court in Cr.A. Case No. 2242 of 1972\nThe Judgment was delivered by: S. Natrajan, J.\n1. These Appeals by Special Leave arise out of a common judgment rendered by the Allahabad High Court in three Criminal Appeals filed before it by the appellants and one Raj Kishore. Appellant Subash and appellant Shiv Shankar were convicted along with Raj Kishore by the 4th Additional Sessions Judge, Bareilly u/s. 302 read with S. 34 Indian Penal Code and S. 324 read with S. 34 Indian Penal Code respectively for having committed the murder of one Ram Babu and for having caused hurt with a knife to witness Dinesh Shankar. For the said convictions they were awarded imprisonment for life and three year's R.I., respectively and the sentences were ordered to run concurrently. One Om Kumar who was also sent up for Sessions trial under the two charges mentioned above was acquitted by the Sessions Judge. The three convicted persons preferred appeals to the High Court and the High Court has confirmed the convictions and sentences awarded to Subash and Shiv Shankar but acquitted Raj Kishore.\n2. The offences in question were committed on March 12, 1971 i.e., a day after Holi Festival at about 11 a.m. on the Bareilly-Nainital Road in Bareilly. The prosecution case was that while Shiv Shankar caught hold of Ram Babu, Subash, Raj Kishore and Om Kumar repeatedly stabbed him with knives and caused fatal injuries to him. When Dinesh Shankar (P.W. 2) tried to intercede he was also stabbed by Subash and caused an injury. Besides, Dinesh Shankar (P.W. 2) the occurrence was witnessed by an uncle of Ram Babu viz. Budh Sen (P.W. 1) and Shyam Behari (P.W. 3) and some others. Ram Babu and Dinesh Shankar were taken to the hospital but Ram Babu was pronounced dead in the hospital. The motive for the occurrence was that about 15 or 20 days prior to the occurrence Ram Babu had given a machine part to Subash for being welded but Subash failed to carry out the work; nevertheless he refused to return the machine part without the repair charges being paid to him. Ram Babu refused to pay the charges and there was an altercation but the parties were pacified by Dinesh Shankar and Ram Babu took away the machine part without paying any charges to Subash. The quarrel had taken place about 3 or 4 days before the occurrence. Bearing this grudge in mind, when Ram Babu, accompanied by Budh Sen and Dinesh Shankar was proceeding to Qutabkhana to witness the Holi celebrations, Subash assisted by his three companions attacked Ram Babu in the manner set out earlier and caused fatal injuries to him. There were as many as 14 injuries on Ram Babu among which 7 were punctured wounds. Among the punctured wounds, injury nos. 7 and 8 were deep injuries which had injured the pleura, left lung, pericardium and the heart. These injuries were certified to be sufficient in the ordinary course of nature to cause death. Dinesh Shankar (P.W. 2) also had sustained an incised wound on his left thigh.\n3. Budh Sen (P.W. 1) got a report Exhibit Kha 1 written by his son and presented it at the Police Station at 1.12 p.m. Therein he has stated that accused Subash was known to him but the other three assailants were not known to him but another witness Bhuvan Chand examined as C.W. 1, had in- formed him that one Raja Ram was one of the assailants of Ram Babu. It would appear that subsequently Bhuvan Chand refused to testify out of fear of the accused and hence he was not cited as a witness in the charge-sheet. Even so, having regard to the averments in Exhibit Kha 1, the Sessions Judge examined Bhuvan Chand as a court witness. He, however, failed to corroborate Budh Sen and stated that he did not know anything about the occurrence.\n4. Subash was absconding and he surrendered before the court on 12.3.71. He was subsequently questioned by the Investigating Officer and he gave information regarding the names and addresses of the other three assailants. Raj Kishore was arrested on 23.5.1971 and Shiv Shankar was arrested on 14.6.71 from the office of the Central Excise, Bareilly where he was employed. Om Kumar surrendered himself in Court on 15.7.71. 5. Test identification parades were held for Raj Kishore and Shiv Shankar on 5.5.71 wherein Shiv Shankar was identified by Budh Sen, Dinesh Shankar and Shyam Behari but Raj Kishore was identified only by Dinesh Shankar. In the subsequent test identification parade held for Om Kumar on 27.7.71 none of the witnesses was able to identify him. The defence of all the accused was one of denial.\n6. Since accused Om Kumar was not identified by any of the witnesses at the test identification parade and since his name was not mentioned in Exhibit Kha 1 the Sessions Judge acquitted him of the charges and convicted only the two appellants and Raj Kishore. The High Court acquitted Raj Kishore because he had been identified only by Dinesh Shankar and not by the other witnesses but, however, confirmed the conviction of these two appellants and it is against such confirmation by the High Court, the appellants have preferred these Appeals.\n7. Before dealing with the case of Subash we can conveniently deal with the appeal of Shiv Shankar. Admittedly he was not known to any of the eye witnesses and his name does not also find a place in the First Information Report Exhibit Kha 1. His name came to be known only through Subash when he was questioned in the jail on 7.4.1971. Even if it were so, it is not understandable why the Investigating Officer should have taken three weeks to question Subash after his surrender in Court on 17.3.1971. Be that as it may, even after getting the name and address of Shiv Shankar from Subash, the Investigating Officer has failed to trace him and arrest him till 14.6.1971. Shiv Shankar was an employee in the office of the Central Excise Department at Bareilly itself. It is, therefore, difficult to believe that the Investigating Officer would not have been able to trace him and arrest him for nearly 9 weeks after coming to know of Shiv Shankar's name and address from Subash. As a matter of fact, the Investigating Officer has stated in his evidence that he visited the house of Shiv Shankar two or three times to arrest him but Shiv Shankar was not to be found. If Shiv Shankar was absent from the house the Investigating Officer could have easily learnt from the neighbours where he was working and where he had gone and located him and arrested him. It is not the prosecution case that Shiv Shankar was absconding. In such circumstances it is difficult to accept the prosecution case that the Investigating Officer could not trace and arrest Shiv Shankar till 14.6.71 in spite of coming to know on 7.4.71 itself that he was one of the assailants of Ram Babu.\n8. Apart from this infirmity we further find that Shiv Shankar was not put up for test Identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha 1 nor in their statements during investigation, the eye witnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had 'sallow' complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification, parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then.\nThus in the absence of any descriptive particulars of Shiv Shankar in Exhibit Kha 1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthu Swami v. State of Madras, A.I.R. 1954 S.C 4 1951 Indlaw SC 76 where an identification parade is held about 2-1/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eye witnesses. In another case Mohd. Abdul Hafeez v. State of Andhra Pradesh, A.I.R. 1983 S.C. 361 1982 Indlaw SC 63 it was held that where the witnesses had not given any description of the accused in the First Information Report, their identification of the accused at the Sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.\n9. Mr. U.R. Lalit, learned counsel for Shiv Shankar further contended that Shiv Shankar had certain distinctive features like scars on the face, reddish lips etc., and these marks of identification should have been furnished to the witnesses before they were called upon to identify Shiv Shankar at the identification parade. We do not think it necessary to go into the merits of this argument in the light of our conclusion already reached. As the conviction of Shiv Shankar is based solely with reference to his identification at the identification parade, he has to be given the benefit of doubt and acquitted in the light of our finding. Accordingly, Shiv Shankar's appeal has to succeed.\n10. Coming now to the appeal of Subash it was strenuously contended by Mr. Frank Anthony, learned counsel that the prosecution evidence suffers from numerous infirmities and as such the Sessions Judge and the High Court ought not to have convicted him. His further argument was that in any case the benefit of doubt given to Om Kumar and Raj Kishore, ought to have been given to Subash also. Mr. Anthony argued that Exhibit Kha 1 could not have been given at 1.12 p.m. because there is no evidence to show when the report was sent to the Magistrate and when it was received by him. The learned counsel referred to Gurdev Singh and others v. The State, [1963] Punjab Law Reporter, 409 where the dangers ensuing from a First Information Report not being lodged promptly have been pointed out. We are unable to accept the argument of Mr. Anthony because there are no materials to warrant an inference that Exhibit Kha 1 had been given later but ante-dated to cover up the delay in making the report. It is true that the First Information Report sent to Court does not contain the Magistrate's endorsement regarding the time of its receipt, but Ram Kishan, Head Constable (P.W. 5) has deposed that the special report was despatched to the Magistrate at 1.20 p.m. itself through constable Chiman Lal and that the General Diary contains an entry to that effect.\n11. It was seriously urged by Mr. Anthony that the motive put forward for the occurrence Was of a flimsy nature and it is unbelievable that for non-payment of repair charges Subash would have attacked Ram Babu along with his companions. This argument has to fail because Dinesh Shankar has clearly deposed that there was an altercation between Subash and Ram Babu there on four days earlier and Ram Babu took away the machine part without paying repair charges to Subash. There is, therefore, nothing improbable in Subash having nurtured a grievance against Ram Babu and wanting to settle scores with him. The evidence of the eye-witnesses is clearly to the effect that Subash told his companions on seeing Ram Babu, that he is the person who had quarrelled with him and taken away the machine part without paying the repair charges. Making common cause of his grievance Su- bash's companions had also joined him in perpetrating an attack on Ram Babu. The intent of Subash in launching an attack on Ram Babu can be gauged from the fact that when Dinesh Shankar tried to intervene, he had prevented him and inflicted a stab injury on him also.\n12. The further argument of Mr. Anthony was that Budh Sen did not have proper eye sight, that Shyam Behari was a chance witness and that Bhuvan Chand named in Exhibit Kha 1 had failed to support the prosecution case and as such there is no accept- able evidence to convict Subash. He also stated that even though Dinesh Shankar is an injured witness, there is no guarantee his evidence is truthful. None of these contentions in our opinion, has any merit. Budh Sen has stated that his eye sight is poor without glasses but with spectacles he can see well. It is not the case of the appellant that Budh Sen was not wearing his spectacles at the time of the occurrence. In so far as Dinesh Shankar and Shyam Behari are concerned, their presence at the scene cannot admit any doubt because their names find a place in Exhibit Kha I. Moreover Dinesh Shankar has sustained an injury on his left thigh. The evidence of these witnesses has been accepted by the Session Court and the High Court and we see no reason to take a different view. In so far as Bhuvan Chand (C.W. 1) is concerned, the prosecution has satisfactorily explained why he was not cited as a witness. He had no doubt furnished the name of Raja Ram alias Raj Kishore to Budh Sen but he subsequently backed out fearing reprisal at the hands of the accused. Mr. Anthony argued that even if his contentions are not accepted, Subash can be convicted only for an offence under S. 324 Indian Penal Code for the injury caused to Ram Babu as well as Dinesh Shankar. We may mention here that the Sessions Judge had framed a separate charge against the appellant Subash under S. 324 Indian Penal Code in addition to the charge u/s. 302 read with S. 34 Indian Penal Code. Mr. Anthony invited our attention to State of U.P. v. Hari Prasad, A.I.R. 1974 S.C. 1740 1973 Indlaw SC 165 and Ugar Ahir v. State of Bihar, A.I.R. 1965 S.C. 277 1964 Indlaw SC 441 to contend that when the sub-stratum of the prosecution case fails, the entire case has to fail. We find the facts in those cases were entirely different and hence they can have no relevance to this appeal. In the present case, the prosecution version fully survives in spite of the acquittal of the other accused for want of proof of identity.\n13. The last argument of Mr. Anthony was that in any event when the other accused persons are acquitted, Subash alone cannot be convicted u/s. 302 read with S. 34 Indian Penal Code in the absence of evidence to show that he caused any of the fatal injuries on Ram Babu. This argument is devoid of any merit. The case of Subash stands on a different footing from that of the other accused because he has been clearly named and the particulars of his profession and address have been furnished in Exhibit Kha 1. All the witnesses have stated that he was known to all of them. In contrast the names of the other accused were not known to the eye witnesses and the name of Raj Kishore alone had been furnished to Budh Sen by Bhuvan Chand.\n14. Besides attacking Ram Babu Subash had also attacked Dinesh Shankar. He was absconding and had later surrendered himself in court. No test identification parade was held for him because his identity was never in doubt. He had a grudge against Ram Babu and it was on his instigation the attack on Ram Babu had been launched. His case, therefore, stands on a distinctively different footing from that of the other accused persons. Even though the other accused are acquitted it is only for want of proof of their identity and not because the eye witnesses had not seen the occurrence or that the occurrence had taken place in a different manner. Subash cannot, therefore, escape the consequences of the attack jointly committed by him and his accomplices in furtherance of their common intention even though the other accused stand acquitted for want of acceptable proof of their identity. Mr. Anthony referred us to the decision in Vijay Kumar v. State of J & K, A.I.R. 1982 S.C. 1022 1982 Indlaw SC 115 to contend that when the other accused stand acquitted Subash also should be acquitted of the charge u/s. 302 read with S. 34 Indian Penal Code. The facts in that case bear no comparison with the facts in this case. On the other hand Amir Hussain v. State of U.P., A.I.R. 1975 S.C. 2211 1975 Indlaw SC 574 will be the decision apt for consideration in this case. In the above case 10 persons were acquitted by the Sessions Judge and three alone were convicted u/s. 302 read with S. 34 Indian Penal Code. Among those three, two were acquitted by the High Court and consequently only one of the accused stood convicted. The said accused appealed to this court and contended that since the other two accused had been acquitted, he should also be acquitted of the charge u/s. 302 read with S. 34 Indian Penal Code. Repelling the contention this Court held as follows:\n\"Much stress has been laid on behalf of the appellant upon the fact that despite the evidence of the above mentioned four eye witnesses, the High Court has acquitted Kari- muddin and Mohd. Ibrahim accused. It is, in our view, not necessary to express an opinion on the point as to whether those two accused were rightly acquitted or not. All that we can say is that the benefit of doubt which resuited in the acquittal of the other two accused would not vitiate the conviction of the appellant in case the evidence adduced against him is found to be satisfactory and convincing. The material on record establishes that the appellant had a motive to join in the assault on Ibrahim Pradhan. The appellant held out a threat and report about it was lodged by Ibrahim deceased at the police station about 3-1/2 months prior to the present occurrence. The evidence about the motive lends assurance to the evidence of the eye-witnesses regarding the complicity of the appellant. We would, therefore, maintain the conviction of the appellant. As regards the sentence, it may be stated that the only injury which is attributed to the appellant is an incised wound on the right arm of Ibrahim. The incised wound which was found on the scalp of Mehandi Hasan was ascribed by the eye witnesses to Karimuddin who has been acquitted. In view of the fact that a comparatively minor injury was attributed to the appellant and he is being vicariously held liable for the fatal injuries caused by the other culprits, we consider it to be a fit case in which we might substitute the lesser sentence for the extreme penalty of death. We accordingly maintain the conviction of the appellant but reduce his sentence to that of imprisonment for life.\"\n15. We are, therefore, of the view that even though the other accused stand acquitted and even though there is no evidence that Subash caused one of the fatal injuries, he cannot escape conviction u/s. 302 read with S. 34 Indian Penal Code when his participation with three other assailants in the attack on Ram Babu has been established beyond reasonable doubt by the prosecution. We, therefore, confirm his convictions and the sentences awarded therefore.\n16. In the result Crl. Appeal No. 287 of 1978 will stand dismissed while Crl. Appeal No. 288 of 1978 will stand allowed. Appellant Subash will surrender himself to custody failing which he should be arrested for serving out the sentence. Appellant Shiv Shankar will stand acquitted of the convictions u/s. 302 read with S. 34 Indian Penal Code and 324 read with S. 34 Indian Penal Code and his bail bonds will stand cancelled.\nCrl. Appeal No. 287/78 dismissed.\nCrl. Appeal No. 288/78 allowed.\nAppeals disposed of.\n"}
+{"id": "YPZTQGOAww", "title": "", "text": "State of Maharashtra v Suresh\nSupreme Court of India\n\n10 December 1999\nAppeal (Cr.) 1092-1093 of 1998\nThe Judgment was delivered by : Hon'ble Justice K. T. Thomas\n1. A gory episode is narrated in this case the gravamen of which is a grisly perpetrated rape and murder of a four year old female child. The rapist had abducted the child from her house and decoyed her to a field at Arvi (in Wardha district of Maharashtra State). After the rape and murder the mangled body of the child was dumped in the field where pulses and cotton were cultivated. The man whom the police challenged as a culprit was convicted and condemned to death penalty by the sessions court but he now stands exonerated as a Division Bench of the High Court of Bombay proclaimed him not guilty. The State of Maharashtra is not prepared to reconcile with the clean chit granted to him by the High Court and hence this appeal by special leave has been filed by the State.\n2. Sneha is the name of the little child who was subjected to the beastly sexual ravishment. She was endearingly called Gangu by her kith and kin. She had a brother younger to her the children were living in the family house which is presumably a joint family house. The life of Gangu was snuffed off on 22.12.1995.\n3. As per the prosecution version the accused (who is respondent in this appeal) was already an accused in another case facing an allegation that he committed rape and murder of one eight year old female child by name Ujawala. While he was in Jail in connection with that case he came into acquaintance with a prisoner (PW6-Sanjay) who is the brother of Gangu's father (PW5-Rameshwar). Both of them were later released from prison. (We are told that respondent was acquitted in that case).\n4. After such release from jail respondent visited Sanjay's house, and subsequently he paid frequent visits to the said house. During such visits he made himself familiar to Gangu. On 22.12.1995 respondent went to that house and when he was told that Sanjay had gone out, he left the house. Sneha was then playing near the gate of  the other house. Respondent would have moved away by alluring the little child to go with him. The fact remains that after respondent left the house in the afternoon no one in that house had seen Gangu alive.\n5. Respondent took Gangu to the shop of PW8 Mahadeo, and later to the shop of PW14 Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death.\n6. As Gangu was not seen in the house or its precincts till night falls the panic-stricken member of her family began to make hectic searches for her. As all such efforts failed her uncle Raju went to the police station and reported that Gangu was missing from that house. Next morning her father Rameshwar (PW-5) went to the police station and lodged Ext. 22-complaint in which he expressed strong suspicion against the respondent regarding the disappearance of his child.\n7. Respondent was arrested on the evening of 23.12.95. During interrogation the police came to know that dead body of the child was concealed in a farm. Though a search was made in the night to find out the spot where the body was concealed it did not fructify due to darkness. Hence the police resumed the search operation on the next morning and the spot was pointed out by the respondent wherefrom the dead body of Gangu was traced out\n8. When autopsy was conducted on the body by two doctors of the local hospital a woeful picture of sexual molestation was etched by them. Ext. 68 (Postmortem Report) contains the data, inter alia, that the vagina was torn down at the perennial region by 1\" with irregular lacerations and a fleshy torn portion was found protruding out there from. Contusions and abrasions on the labia majora of both sides besides swelling were also noticed by the doctor. There were number of contusions and abrasions on her face also. Dr. Avinash S. Lawhale, Medical Superintendent and Dr. Pathoda, Medical Officer of Rural Hospital, Arvi, District Wardha, after completing the jointly conducted autopsy reported that death of the child was due to asphyxia by rape and smothering.\n9. There is not even a speck of doubt that Gangu was kidnapped from her house and she was raped and killed on same day on the evening of 22.12.1995. In fact the Sessions Court and the High Court concurrently found the aforesaid point affirmatively. The whole endeavour was therefore confined to the question whether the crime was committed by the respondent.\n10. The trial court and the High Court focused on the circumstances which prosecution presented through the evidence for proving that the culprit in the ghastly infanticide was the respondent himself and none else. The Sessions Judge found that all those circumstances were established and they formed themselves into a completed chain unerringly pointing to the guilt of the respondent. But the Division Bench of the High Court differed from the findings of the Sessions Court regarding some of the circumstances and that resulted in exoneration of the respondent.\n11. The circumstances which prosecution presented can be recast as follows (1) Respondent visited the house of Gangu at about 3.30 P.M. and after he left the house it was realized that Gangu also disappeared; (2) PW-8 Mahadeo saw the accused and a female child together in his shop at about 4.30 P.M. on the same day; (3) PW-14 Motiram saw them together in his shop at about 4.00 P.M.; (4) A little later PW-3 Sayyed Niyamat saw them walking along the road; (5) Respondent after his arrest disclosed to PW. 26 (Police Inspector of Arvi Police Station) that the dead body of the child was concealed in the farm and he offered to hand it over. Pursuant thereto the spot was pointed out by the respondent wherefrom the dead body was recovered; (6) PW-20 Dr. Avinash S. Lawhale stated that the person who caused the injuries on the vagina of the deceased child would have sustained injuries on his male organ. When respondent was medically examined on 25.12.1995 by PW-22 Dr. Nand Kumar it was noticed that his glands penis was swollen with multiple tiny punctuated abrasions besides abrasions on the posterior aspect of both elbow joints. According to the doctor those injuries could have been caused 48 hours earlier than the time of his examination; (7) Stains of human blood and semen were detected on the under-clothes of the accused when he was arrested.\n12. The Division Bench of the High Court was not disposed to rely on the evidence of the three witnesses who claimed to have seen the respondent and the girl together though their evidence was found reliable by the trial court. Nor did the High Court concur with the Sessions Courts's finding regarding recovery of the dead body as sequel to the information supplied by the respondent. The High Court declined to take the injuries which the doctor noticed on the person of the respondent as an incriminating circumstance on the premise that it is not a conclusive circumstance. The Division Bench side-stepped the circumstance that semen and blood were detected on the under-clothes of the accused on the premise that there was delay in seizing those wearing apparels.\n13. The evidence of PW-3 Sayyed Niyamat (PW-8) Mahadeo and Motiram (PW-14) needs scrutiny by us because acceptability of that evidence will have a decisive impact on the final conclusion of this case.\n14. PW-8 Mahadeo claimed to have seen the respondent with a little girl at his grocery shop around 4 P.M. on 22.12.1995. He said that the man with the girl had purchased some peppermint from his shop presumably for appeasing the girl as she was then crying. His reason for remembering his purchase was that next he heard about the murder of a little girl and he visited the house of the girl on 24.12.1995, and identified the dead body as that of the same girl. In a test identification parade conducted by PW-26 Magistrate he identified the respondent as the person who accompanied the child. PW-3 Sayyed Nayamat gave evidence that when he was returning from his Friday Namaz he saw a young man holding a crying girl around 4.00P.M. He too gave almost the same reason for remembering it that when he heard next day about the murder of a little girl he had some doubt whether it was the same crying girl. He also identified the respondent in the test identification parade.\n15. PW-14 Motiram has a betel shop in the locality. His evidence is that a young man wearing pant and shirt visited his shop at about 4.30 p.m. and bought some \"Kharra\" from the shop. He remembered it as a little girl was with him who was found crying then. When he heard next day about the murder he felt suspicious because the young man whom he saw the previous day in his shop was a total stranger in the locality. So he informed the police about it. He too was called in the Test Identification Parade wherein he identified the respondent as the person whom he saw with the girl.\n16. If a criminal court is to view the testimony of the aforesaid three witnesses as unnatural it would be easy to brush it aside with the stereotyped reasoning that those persons had no cause to remember having seen the man with the girl accompanying him. Such a reasoning overlooks the broad aspect that a human mind, on hearing about any shocking incident, would have the tendency to recollect any previous event which could have had a connection with that incident. If as a matter of fact those witnesses had occasion to see a crying girl of that age on the very day of the gruesome episode as happened in this case, there is nothing improbable in those witnesses remembering the person who was seen in the company of that girl. If they had immediately informed the police that they noticed a similarly aged girl crying in the company of an utter stranger of that locality that cannot be brushed aside as a doubtful conduct. Either the three witnesses concocted the story falsely or what they said must be true. Why should they concoct it falsely. We are not told of any reason whatsoever for those three witnesses to bother themselves to concoct such a canard.\n17. It seems that a minor discrepancy in their evidence had affected their credibility before the High Court. They said that they went to the police station on 24.12.1995, whereas PW-26 Police Inspector said that they visited the police station only on 25.12.1995. We do not attach any significance to the aforesaid discrepancy as PW-26 should have been more correct because he was speaking with the help of investigation records while the witnesses would have spoken from their memory only. Another reason advanced by the Division Bench is that when PW-3 Sayyed Niyamat went to the bereaved house he did not inform anyone in that family as to what he saw earlier. But PW-3 himself gave an explanation for it that as members of that family were then in a shock he did not venture to tell them about it at that occasion. Here also the question is not whether PW-3 should have told them despite his hesitation but whether the witness had chosen to adopt such a reticence in a situation like that. It is not for the Court to suggest that he should have divulged it to the members of the bereaved family despite his own thinking about it. At any rate we are not impressed by the aforesaid reasoning for rejecting the testimony of an important witness like PW-3.\n18. The Division Bench then advanced a theory that there is \"an inherent incredibility in the evidence\" on the premise that a culprit kidnapping a minor girl with sinister design would normally take the precaution not to be seen by any other person on the way, but in this case the culprit along with the girl had moved from place to place in the town. We are unable to appreciate such a reasoning as proposition of human conduct. For considering that reasoning it must be remembered that Gangu would certainly have been abducted by some body (even assuming that it was not this respondent) and that person had taken the abducted girl from her house up to the farm. Unless it is suggested that there was another alternative and safer route for the culprit to take the girl unnoticed by any shopkeeper or even a pedestrian there in no rationale in the reasoning that there is \"inherent incredibility\" in the version that respondent would have taken the girl through this route.\n19. The last reasoning of the Division Bench is based on a criticism of the modes adopted by the Executive Magistrate who held the test identification parade. The aforesaid criticism was based on the evidence of two witnesses who said that the accused were taken on foot from police station to the place where the parade was conducted and that their faces were not covered during such transit.\n20. Ext 17 is the minutes of the test identification parade conducted by the Magistrate who himself was examined as PW-2. It contains the details of the steps adopted by him. Seven other persons were kept ready in the room and the witnesses were kept in another room from where they could not see the suspect Thereupon the suspect was brought from the lock up with the help of two respectable persons and all precautions were taken that the witnesses could not see the suspect during such transit. Then the suspect was permitted to stand anywhere among the 7 persons. It was thereafter that the witnesses were brought with the help of the same respectable persons and the witnesses were then asked to identify the person whom they saw on the crucial day. If potholes were to be ferreted out from the proceedings of the magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held, vide Budhsen v. State of Uttar Pradesh, [1970] 2 SCO 128 1970 Indlaw SC 136 and Ramanathan V. State of Tamil Nadu, [1978] 3 SCC 86 1978 Indlaw SC 170.\n21. When we scanned through Ex. 17 minutes of the test identification parade, we feel that the safeguards adopted by PW-2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that the Division Bench niggled on unimportant details and came to the wrong conclusion that the test identification parade was irretrievably vitiated. The reasons by which the testimony of those three witnesses had been jettisoned by the Division Bench were fatuous and we cannot support them.\n22. One of the formidably incriminating circumstances against the accused was that the dead body was recovered as pointed out by the respondent. The statement of the respondent which led to the recovery of the dead body has been incorporated in Ext. 79 and the admissible portion of it reads thus :\n\"Her dead body is kept concealed in the field; I will take it out and produce the same; come with me.\"\n23. But unfortunately the Division Bench of the High Court did not rely on the above circumstance on a very fragile reasoning. The first limb of that reasoning was based on a mistake committed by PW-3 Sayyed Niyamat in his evidence when he said that he saw the dead body of the child on 23.12.1995. Much strain is not required in holding that what PW-3 said should have been understood as 24.12.1995. The second limb of the reasoning is that two other possibilities could not have been ruled out. Of which one is that respondent would have seen someone else placing the dead body at that spot, and the second is that respondent would have been told by somebody else that the dead body was placed there.\n24. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in S. 27 of the Evidence Act.\n25. It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW-22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW-22 Dr. Nand Kumar, False answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing \"a missing link\" for completing the chain.\n26. It is disconcerting that a case like this in which the prosecution has presented such reliable and formidable circumstances forming into a completed chain and pointing unerringly to the irresistible conclusion that the little girl Gangu was raped and killed by none other than the respondent himself, ended in unmerited acquittal from the Division Bench of the High Court. Criminal justice unfortunately became a casualty in this case when the High Curt side-stepped all such circumstances and exonerated the culprit of such a grotesque crime.\n27. We, therefore, set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with the Sessions Court's view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of \"rarest of the rare cases\" envisaged by the Constitution Bench in Bachan Singh v. State of Punjab, [1980] 2 SCC 684 1980 Indlaw SC 586. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence u/s. 302 IPC, to imprisonment for life. The sentences imposed by the trial court on all other counts would remain unaltered. The bail bond shall stand cancelled. We direct the respondent to surrender to bail. We also direct the Sessions Judge, Wardha to take immediate and necessary steps to put the accused in jail if he is not already in jail, for undergoing the sentence imposed on him.\n"}
+{"id": "VHWGaub52Z", "title": "", "text": "Soni v State of Uttar Pradesh\nSupreme Court of India\n\n6 March 1981\nCr.A. No. 252 of 1981\nThe Judgment was delivered by: V. D. Tulzapurkar, J.\nSpecial leave granted.\n1.  After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant.\nWe therefore allow the appeal and acquit the appellant.\nAppeal allowed.\n"}
+{"id": "aVNqTIAae2", "title": "", "text": "Wakil Singh and Others v State of Bihar\nSupreme Court of India\n\n31 March 1981\nCr.A. No. 268 of 1976\nThe Judgment was delivered by: FAZAL ALI, J.\n1. This appeal u/s. 2 of the Supreme Court (Enlargement of the Criminal Appellate Jurisdiction) Act and also u/s. 379 of the Code of Criminal Procedure is directed against the Judgment of the Patna High Court dated April 13,  (Pat)), by which the High Court reversed the order of the Sessions Judge acquitting the appellants and convicted them u/s. 396 of the Indian Penal Code and sentenced them to imprisonment for life. The narration of the prosecution case is given in the Judgment of the High Court and it is not necessary to repeat the same here. The case arose out of a dacoity said to have been committed in the house of the complainant, PW-Darbari Sao on the night of May 24, 1965 at about 8.45 p.m. According to the prosecution some unknown persons including the appellants entered the house, assaulted inmates, killed one of them and looted away properties worth thousands of rupees. There is no clear evidence to show that the deceased Kameshwer Sao was actually killed by one of the dacoits in the course of the dacoity. Although his dead body was found but the prosecution has not been able to establish any nexus between his death and the commission of the dacoity or even his injuries. In these circumstances it is obvious that charge u/s. 396 must fail. In the instant case, however this will make no difference because after going through the judgment of the courts below and hearing the counsel for the parties, we are clearly of the opinion that the appellants are entitled to an acquittal. The four appellants were arrested between August 26 to September 2, 1965 and the first T.I. parade was held on September 4, 1965 and two other parades were held on September 8, 1965. So far as Wakil Singh is concerned, he had been identified by PWs. 2, 9 and 13. So far as PW 13 is concerned as he had not identified this appellant before the T.I. parade, he was disbelieved both by the trial Court and the High Court. The trial Court refused to act on the evidence of PW 2 also because this appellant was identified only before the committing court and not before the Sessions Court. Thus the only evidence Wakil Singh consisted of PW 9\n2.  In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial Court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial Court. The High Court, however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about 3 1/2 months after the dacoity and in view of such a long lapse of time it is not possible for any human being to remember, the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness\n3.  Lastly, since the High Court was reversing an order of acquittal, it failed to take into consideration the fact that having regard to there being only one witness who identified the accused concerned, the view taken by the trial Court could not be said to be reasonably possible. For these reasons, therefore, we are clearly of the opinion that the appellant who had been identified by only one witness must be acquitted. Thus, Wakil Singh, to start with, has been identified by PW 9 and for the reasons that we have stated above, it would be wholly unsafe to maintain his conviction on the basis of the evidence of PW 9 alone. Another circumstance against the prosecution, with respect to this appellant, is that although PW 9 was present on the September 4, 1965 when a T.I. parade was held, he was not asked to identify the appellant, but the witness identified the accused 4 days later that is to say on September 8, 1965. These circumstances also throw some doubt on the complicity of this appellant\n4.  Similarly appellant Krishndan Singh has been identified only by PW 15 and for identical reasons which we have given in the case of Wakil Singh, it will not be possible for us to uphold the conviction of this appellant also, as his conviction is based on a single identification, particularly when he was acquitted by the trial Court\n5.  As regards the other two appellants viz., Sheobalak Singh and Kuppi Singh, the High Court seems to have committed a serious error of law in convicting these appellants. It has been established that so far as Kuppi Singh is concerned he undoubtedly had smallpox marks and was identified by as many as 6 witnesses PWs. 2, 3, 5, 12, 13 and 15. The T.I. parade chart does not show that any person having smallpox marks was mixed up with this accused at the time of the parade, nor does the T.I. chart show that any precaution for concealing the pox marks was taken. The trial Court rightly pointed out that in view of the pox marks, the mistake in identification could not have been excluded. The High Court did not agree with the reasoning of the trial court because it construed the T.I. parade in a most technical fashion. It is well known that all T.I. parade contain a cyclostyled or printed certificate that necessary precautions have been taken, and the Magistrate merely signs on the dotted lines. But that by itself, would not show for the purpose of proving a criminal charge that this precaution was actually taken, unless the Magistrate himself appears as a witness and says what precautions were taken. Apart from the endorsing the certificates, the Magistrate who held the T.I. parade in this case does not state that he had taken any precaution to conceal the smallpox marks appearing on the face of Kuppi Singh by mixing other persons who had some smallpox marks.  Furthermore, the very fact that even under the stress and strain of such serious incident as the present one, as many as 6 witnesses identified Kuppi Singh without at all giving any kind of description of this accused, clearly shows that the witnesses identified him merely because of the pox marks. At any rate, here also the possibility of mistake in identification because of the pox marks cannot be reasonably excluded. For these reasons, therefore, we are unable to support the reasons given by the High Court for reversing the acquittal of Kuppi Singh also\n6.  So far as Sheobalak Singh is concerned here also, it is admitted that he had a visible cut mark on the cheek and no precaution as in the case of Kuppi Singh was taken by the Magistrate either to put some person having similar marks or to conceal this cut mark at the time of identification. Furthermore, this accused has also been identified by 4 witnesses 2, 5, 9 and 16 and the possibility that he was identified because of this particular cut mark cannot be excluded\n7.  We are fully satisfied that this was not a case which called for the interference of the High Court against the order of the acquittal passed by the Sessions Judge. The appeal is accordingly, allowed and the appellants acquitted of the charges framed against them. Krishnandan Singh who was on bail will now be discharged from his bail bonds and other appellants are directed to be set at liberty forthwith.\nAppeal allowed.\n"}
+{"id": "DXQsedBEmL", "title": "", "text": "Hasib v State of Bihar\nSupreme Court of India\n\n23 August 1971\nCr.A. No. 19 of 1967 (Cri. Appeal No. 519 of 1964, D/- 27 July 1966 - Pat.), Dt. 23 August 1971.\nThe Judgment was delivered by: DUA, J.\n1.  Five persons were tried in the Court of the Additional Sessions Judge, First Court, Monghyr for charges under Sections 395, 307 and 398, Indian Penal Code. All of them were convicted under Section 395, Indian Penal Code and acquitted of the charge under Sec. 398, Indian Penal Code. Accused, Akal Yadav, was in addition convicted under Section 307, Indian Penal Code and was sentenced to undergo rigorous imprisonment for life under each count. The other accused persons were sentenced to undergo rigorous imprisonment for ten years each under Section 395, Indian Penal Code.\n2. On appeal the High Court set aside the convictions of Akal Yadav, Anandi Yadav and Ashique Mian and allowing their appeals acquitted them. The convictions and sentences of Sheikh Hasib alias Tabarak, the appellant in this Court and of Sheikh Quddus alias Khudwa were maintained. Sheikh Hasib alias Tabarak alone has appealed to this Court with special leave u/art. 136 of the Constitution.\n3.  According to the prosecution case, on January 28, 1963 at about 7.45 p.m. several dacoits had collected on P.W.D. road near Telia Talab, Monghyr Police Station mofassil and committed dacoity in respect of the properties of a number of passersby Ganesh Prasad (P.W. 1) and his brother Kamleshwar Tanti (P.W. 2) who were going together on a cycle from Monghyr to their village Nawagarhi were held up by about 15 dacoits and were deprived of several valuable articles like watch, cycle, shirt, muffler and money. Those articles were forcily snatched from them on threat of violence. They were then made to sit on one side, away from the main road. When they were sitting there, Thakur Prasad Choudhary (P.W. 6), resident of village. Garhi Rampur and Mukhia of the village Panchayat and Ram Baran Mandal (P.W. 3) also happened to come on a rickshaw from Monghyr side and while passing by the place of occurrence they too were intercepted by the dacoits and deprived of their properties. A woman named Dayabati Devi (P.W. 4) and one Prayag Narain Gupta (P.W. 5) a homeopath doctor, who also happened to pass that way in a rickshaw were also attacked by the dacoits and forcibly deprived of their belongings.\n4. In the meantime Ram Baran Mandal (P.W. 3) and Thakur Prasad Choudhary (P.W. 6) somehow managed to escape in their rickshaw. When they reached Telia Talab crossing from where one road goes towards Jamalpur and another towards Bariarpur and the third one towards Monghyr, they saw a jeep car standing there with three Police Officers in uniform, a Sub-Inspector of Police, Deo Dutt Prasad Varma, (P.W. 8) and an Inspector of Police (Jadunandan Singh (P.W. 10) along with driver-constable (Bansidhar Singh. P.W. 9). Thakur Prasad Choudhary, Mukhia, narrated to them the occurrence of dacoity and the loss of his property and told them that the decoits were still busy in their nefarious activities.\n5.  After giving this information he accompanied those officers in the Jeep to the place of occurrence. Ram Baran (P.W. 3) went away towards his village. Thakur Prasad Choudhary pointed out to the Police Officers the place of occurrence as soon as it became visible in the light flashed by the headlights of the Jeep. The jeep stopped near the place of occurrence and it is alleged that more than eight dacoits were found present at the spot. The Inspector (P.W. 10) ordered the constable to get down and arrest the dacoits.\n6. Pursuant to this order Bansidhar, constable, got down from the jeep but one of the dacoits aimed a lathi blow at him. When the other occupants of the jeep tried to get down one of the dacoits fired at them hitting both the Inspector and the Sub-Inspector causing them bleeding injuries. The jeep then drove away towards Monghyr in order to get the Sub-Inspector and the Inspector (P.W. 8 and 10) treated in the hospital. While passing in front of the Police Station of Monghyr on their way to the Sadar Hospital, the Sub-Inspector and the Inspector informed the Policemen at the Police Station about the dacoity in question near the Telia Talab and said that since they themselves selves had sustained injuries at the hands of the dacoits they were on their way to the hospital. The dacoits had apparently disappeared in the meantime and nobody was caught at the spot.\n7.  It is not necessary to state any more facts for the purpose of the present appeal. Suffice it to say that the fate of the entire prosecution case depends on the evidence regarding the identification of the persons charged. So far as the present appellant is concerned the only evidence against him is that of his identification by Jadunandan Singh, Inspector of Police (P.W. 10). The question, therefore, arises whether his testimony relating to the identification of the appellant provides evidence which, according to the settled principles, can be considered sufficient for sustaining his conviction.\n8. Now, according to the High Court it was mentioned in the fard beyan (Ex. 1) which is treated as first information report, that the Inspector (P.W. 10) had identified two dacoits as belonging to village Banoudha. These two dacoits are Hasib and Ashique Mian, the conviction of both of whom was upheld by the High Court. Exhibit 1 was the statement made by S.I. Deo Dutt Prasad Varma (P.W. 8) to the Police in the hospital. The exact words used therein so far as relevant may herein be read :-\n\"The Inspector said that among the recognized dacoits he had recognized two dacoits well that they belonged to Banaudha a nearby village. He did not remember their names. He also said that the dacoits seemed to belong to the neighbouring villages and almost all of them were young.\"\n9. The evidence of P.W. 8 has not been relied upon by the High Court for convicting the appellant. What is relied upon is the statement in Court of P.W. 10 because the High Court felt that it was corroborated by Ex. 1. This is what the High Court has said :-\n\"Appellants Hasib and Ashique Mian both belong to village Banaudha, and it was mentioned in the fard beyan (Ex. 1) that the Inspector (P.W. 10) had identified two dacoits well as belonging to village Banaudha. This description as to the residence of two of the dacoits was given before Hasib and Ashique Mian came to be arrested in connection with this case. Therefore, it is manifest that the evidence of P.W. 10 against appellant Hasib finds sufficient corroboration from the description of the culprits given in the farde beyan. That being so, I am of the opinion that the evidence of P.W. 10 against appellant Hasib can be safely acted upon. It is true that appellant Hasib had been remanded to Police custody for nearly 48 hours after his production before the Sub-divisional Magistrate on 29-1-1963. But all the while P.W. 10 was confined to the Hospital and as such he could not have the opportunity of seeing this appellant while he was in Police custody. The complicity of this appellant in the crime has thus been established beyond all, reasonable doubts.\"\n10.  Here the High Court appears to have clearly gone wrong in law. The legal position as to the object, value and use of first information report is wellsettled. The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted.\n11. It can, however, only be used as a previous statement for the purpose of either corroborating its maker u/s. 157 of the Indian Evidence Act or for contradicting him u/s. 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses. The High Court was, therefore, in error in seeking corroboration of the testimony of P.W. 10 from the F.I.R. of which he was not the maker.\n12.  P.W. 10 is said to have later identified the present appellant in Court, as the person whom he had identified at the second test identification parade on the first day when he went for identifying the accused persons. That was on February 14, 1963. This is what he said in Court :-\n\"I 'attended' T.I. parade for two days. I 'attended' the (T.I.) parade twice on the first day and once on the second day. On the first day and at the first I identified this accused (points to accused who gives out his name as 'Akal Jadav'). He had opened fire at the time of occurrence. I identified at the second time this accused (points to accused who gives out his name as Mohammad Hasib, alias Tabarak). On the second day I identified this accused (points to one accused who gives out his name as Sheikh Quddus, alias Khudwa).\"\n13.  As observed by this Court in Vaikuntam Chandrappa v. State of Andhra Pradesh, 1959 Indlaw SC 284 the substantive evidence is the statement of a witness in Court and the purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in Court as to the identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the dacoits when P.W. 10 saw them on January 28, 1963 then the T.I. parade as against him cannot be of any assistance to the prosecution.\n14.  But otherwise too the identification proceedings in the present case do not inspire confidence. It appears that several test identification parades were held for identifying the accused persons. So far as the present appellant is concerned P.W. 10 appears to have identified him on February 14, 1963 though the appellant had been arrested as early as January 29, 1963 at about 4.15 a.m. Now, identification parades are ordinarily held at the instance of the investigating Officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines.\n15. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned, In the present case the first identification parade was held on February 6, 1963 when several accused persons were included for identification in the parade. The present appellant was not included in the parade on that day. The identification parade with respect to him was held on February 14, 1963 the reason given for this delay being that P.W. 10 was till then in the hospital.\n16.  Accordingly to his own evidence in the trial Court, however, P.W. 10 admits to have been discharged from the hospital on February 9, 1963. In his statement before the committing Magistrate (which was read as evidence by the trial Court under Section 288, Criminal P.C.) he had stated that he had come out of the Hospital 7 or 8 days after his admission. It may be recalled that he was admitted in the hospital on January 28, 1963, the night of the occurrence. This would mean that he was out of the hospital on February 6, 1963. But even if he was discharged on February 9, 1963 it is wrong to say that the test identification parade could not be held before February 14, 1963 by reason of P.W. 10 being in the hospital till then. But this apart, it is not shown that this witness even though in the hospital for treatment of his injuries to his hand and face was not in a position to be taken from the hospital for identification as soon as the appellant was arrested or at least on February 6, 1963 when identification of a number of accused persons was held. We are also not satisfied about the fairness of the identification proceedings. It may be recalled that the first identification parade was held on February 6, 1963.\n17. It, however, appears that because the result of this parade was not considered satisfactory by the investigating agency an application was made to the court of the magistrate stating that the identifying witnesses had got confused and, therefore, a fresh test identification parade should be held. Thereafter several identification parades were held on 14th, 21st and 28th February, 1963. This procedure only serves to give rise to grave suspicion about the bona fides of the investigating agency. And then we find from the evidence of Jhari Lal Mahto, Sub-Deputy Magistrate (P.W. 13) who had held the T.I. parade on February 14, 1963 that two identification parades were held on that day within half an hour of each other : one at 5 p.m. and the other at 5.30 p.m. At both these parades P.W. 10 was present.\n18.  In the first parade the appellant is stated not to have been included in the suspects to be identified. No reason is shown for his non-inclusion in that parade. It may be recalled that both the parades were held in the sub-jail in which all the accused persons were lodged. The evidence of P.W. 13 is also somewhat unsatisfactory a cross-examination a suggestion was thrown that there was some kind of interpolation in his report of the first T.I. parade held at 5 p.m. from which it could be suspected that the appellant was present in that parade but was not identified by P.W. 10. And we are far from impressed by his testimony with respect to the precautions taken by him for fair test identification parades. In hisWhether or not the appellant was included in the suspects to be identified at 5 p.m. in either case we are unable to attach much value to his identification parade.\n19. The High Court has in its judgment accepted the argument raised on behalf of the accused that they were produced in court on February 13, 1963 and has expressed its opinion that the possibility of P.W. 8 and P.W. 10 seeing the accused persons in court could not be entirely eliminated. This circumstance in our view, further weakens the value of the appellant's identification held on February 14, 1963.\n20.  There is, however, also another aspect which requires to be noticed. Now, if P.W. 10 had recognised the appellant at the time and place of the occurrence as one of the two dacoits hailing from village Banaudha then clearly the identification test of the appellant by this witness can be of little value because the accused was already known to the witness. In that event there is no question of the identification parade dated February 14, 1963 being used as corroborative evidence supporting his identification in court. As a result of the foregoing discussion we find that there is no legal evidence connecting the appellant with the alleged offence in question and we have, therefore, no hesitation in acquitting him.\nWe accordingly allow the appeal and acquit the appellant.\nAppeal allowed.\n"}
+{"id": "nBvbdFo9xb", "title": "", "text": "Shambhoo Nath Misra v State of U. P.\nSupreme Court of India\n\n14 March 1997\nAppeal (Cr.) 318 of 1997\nThe Order of the Court was as follows :\nLeave granted.\nWe have heard learned counsel on both sides.\n1. This appeal by special leave arises from the judgment and order of the learned Single Judge of Allahabad High Court, made on September 31, 1995 in Criminal Revision No. 985 of 1993.\n2. The appellant had laid a private complaint against R.D. Tripathi, the second respondent, for offences under Section 409, 420, 465, 468, 477A and 109 I.P.C., after examination, alleging that the second respondent and the Cashier had fabricated his signatures, drawn and misappropriated and amount of Rs. 443.90 which was due and payable to him. On the basis thereof, after recording his evidence and also of the court witness u/s. 202 Cr. P.C. 1973, the Magistrate dismissed the complaint holding that the sanction u/s. 197 of the Cr. P.C. was not obtained. Aggrieved by the order, the appellant went in revision before the High Court. The High Court recorded the finding that the second respondent was discharging his duties as a Government servant and was alleged to have misappropriated the amount in question by forging the signature of the appellant in the payment register. The High Court further observed that \"the offence alleged to have been committed by the respondent is related in some manner with the discharge of his official duties. There is reasonable connection between the act and discharge of his official duty. Under these circumstances, sanction under Section 197, Cr. P.C., is necessary before prosecution of this accused\". In support of it, the learned Judge-relied upon Hari Ram v. Emperor, (1939) F.C.R. p. 159, Onll's case [1948 Law Reporter 75 Indian Appeal 411948 Indlaw PC 45] and the case of B. Saha v. M.S. Kochhar, (1979) A.C.C. (16) 318. The question is : whether the view taken by the trial Court as upheld by the High Court for the aforesaid reason is correct is law?\n3. S. 197 (1) postulates that \"'when any person who is a public Servant not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the appropriate Government/authority\". The essential requirement postulated for sanction to prosecute the public servant is that the Offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of the performance of his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection u/s. 197 (1) of Cr. P. C. without previous sanction, the complaint/charge against him for alleged offence cannot be proceeded with in the trial, The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest- and sincere officer to perform his public duty honestly and to the best of his ability. The threat of persecution demoralizes the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest However, performance of Official duty Under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records finding that the crime and the official duty are not integrally connected.\n4. The question is ; when the public servant is alleged to have com-mitted the offence of fabrication of record or misappropriation of public fund etc., can he be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the fake record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc- It does not mean that it is integrally connected or inseparably inter linked with the crime committed in the course of same transaction, as was believed by the learned judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.\n5. The learned counsel for the respondent, Mr, Dhingra, has contended that the Magistrate came to the conclusion that it was not a part of the duty of the respondent to deal with either the preparation of the record or payment thereof It was the duty of the cashier and therefor, the learned Magistrate was right in his conclusion that the respondent had not com-mitted any offence. We desist to go into that aspect. It is made clear that we have not expressed any opinion on merits of the case. We have only dealt with the contention as the need for sanction and as to whether the sanction becomes necessary u/s. 197 (1) of Cr. P. C.\n6. The appeal is accordingly allowed to the above extent. The order of the Magistrate dismissing the complaint is set aside. The complaint stands restored. The Magistrate is directed to proceed further in accordance with the law and deal with the case on merits.\n"}
+{"id": "aSQHqNgAC7", "title": "", "text": "Dr. Subramanian Swamy v Dr. Manmohan Singh And Another\nSupreme Court of India\n\n31 January 2012\nCIVIL APPEAL NO. 1193 OF 2012\n(Arising out of SLP(C) No. 27535 of 2010)\nThe Judgment was delivered by : G. S. Singhvi, J.\n1. Leave granted.\n2. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988 (for short, 'the 1988 Act') and whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in cl. I(15) of the directions contained in the judgment of this Court in Vineet Narain v. Union of India (1998) 1 SCC 226 1997 Indlaw SC 1247 and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC) are the question which require consideration in this appeal.\n3. For the last more than three years, the appellant has been vigorously pursuing, in public interest, the cases allegedly involving loss of thousands of crores of rupees to the Public Exchequer due to arbitrary and illegal grant of licences at the behest of Mr. A. Raja (respondent No. 2) who was appointed as Minister for Communication and Information Technology on 16.5.2007 by the President on the advice of Dr. Manmohan Singh (respondent No. 1). After collecting information about the grant of licences, the appellant made detailed representation dated 29.11.2008 to respondent No. 1 to accord sanction for prosecution of respondent No. 2 for offences under the 1988 Act. In his representation, the appellant pointed out that respondent No. 2 had allotted new licences in 2G mobile services on 'first come, first served' basis to novice telecom companies, viz., Swan Telecom and Unitech, which was in clear violation of Cl. 8 of the Guidelines for United Access Services Licence issued by the Ministry of Communication and Information Technology vide letter No.10-21/2005-BS.I(Vol.II)/49 dated 14.12.2005 and, thereby, caused loss of over Rs. 50,000 crores to the Government.\nThe appellant gave details of the violation of Cl. 8 and pointed out that the two officers, viz., R.J.S. Kushwaha and D. Jha of the Department of Telecom, who had opposed the showing of undue favour to Swan Telecom, were transferred just before the grant of licences and Bharat Sanchar Nigam Limited (BSNL) which had never entered into a roaming agreement with any operator, was forced to enter into such an agreement with Swan Telecom. The appellant further pointed out that immediately after acquiring 2G spectrum licences, Swan Telecom and Unitech sold their stakes to foreign companies, i.e., Etisalat, a telecom operator from UAE and Telenor of Norway respectively and, thereby, made huge profits at the expense of public revenue. He claimed that by 2G spectrum allocation under respondent No. 2, the Government received only one-sixth of what it would have received if it had opted for an auction. The appellant pointed out how respondent No. 2 ignored the recommendations of the Telecom Regulatory Authority of India (TRAI) and gave totally unwarranted benefits to the two companies and thereby caused loss to the Public Exchequer. Some of the portions of the appellant's representation are extracted below:\n\"Cl. 8 has been violated as follows: While Anil Dhirubhai Ambani Group (ADAG), the promoters of Reliance Communications (R Com), had more than 10 per cent stake in Swan Telecom, the figures were manipulated and showed as 9.99 per cent holding to beat the said Clause. The documents available disclose that on March 2, 2007, when Swan Telecom applied for United Access Services Licences, it was owned 100 per cent by Reliance Communications and its associates viz. Reliance Telecom, and by Tiger Trustees Limited, Swan Infonet Services Private Limited, and Swan Advisory Services Private Limited (see Annexure I). At one or the other point of time, employees of ADAG (Himanshu Agarwal, Ashish Karyekar, Paresh Rathod) or its associate companies have been acquiring the shares of Swan Telecom itself.\nBut still the ADAG manipulated the holdings in Swan to reduce it to only 9.99 per cent. Ambani has now quietly sold his shares in Swan to Delphi Investments, a Mauritius based company owned by Ahmed O. Alfi, specializing in automobile spare parts. In turn, Swan has sold 45% of its shares to UAE's Emirates Telecom Corporation (Etisalat) for Rs.9000 crores! All this is highly suspicious and not normal business transactions. Swan company got 60% of the 22 Telecom licenced areas at a throw away price of Rs.1650 crores, when it was worth Rs.60,000 crores total.\nRoom has operations in the same circles where the application for Swan Telecom was filed. Therefore, under Cl. 8 of the Guidelines, Swan should not have been allotted spectrum by the Telecommunication Ministry. But the company did get it on Minister's direction, which is an undue favour from him (Raja). There was obviously a quid pro quo which only a CBI enquiry can reveal, after an FIR is registered. There is no need for a P/E, because the CVC has already done the preliminary enquiry.\nQuite surprisingly, the 2G spectrum licences were priced at 2001 levels to benefit these private players. That was when there were only 4 million cellphone subscribers; now it is 350 million. Hence 2001 price is not applicable today.\nImmediately after acquiring 2G spectrum licences both Swan and Unitech sold their stakes to foreign companies at a huge profits. While Swan Telecom sold its stakes to UAE telecom operator Etisalat, Unitech signed a deal with Telenor of Norway for selling its share at huge premiums.\nIn the process of this 2G spectrum allocation, the government received only one-sixth of what it would have got had it gone through a fresh auction route. The total loss to the exchequer of giving away 2G GSM spectrum in this way-including to the CDMA operators-is over Rs.50,000 crores and is said to be one of the biggest financial scams of all times in the country.\nWhile approving the 2G licences, Minister Raja turned a blind eye to the fact that these two companies do not have any infrastructure to launch their services. Falsely claiming that the Telecom Regulatory Authority of India had approved the first-cum-first served rule, Raja went ahead with the 2G spectrum allocation to two debutants in the Telecom sector. In fact earlier TRAI had discussed the spectrum allocation issue with existing services providers and suggested to the Telecom Ministry that spectrum allocation be made through a transparent tender and auction process. This is confirmed by what the TRAI Chairman N. Misra told the CII organized conference on November 28, 2008 (Annexure 2). But Raja did not bother to listen to the TRAI either and pursued the process on 'first come, first served' basis, benefiting those who had inside information, causing a loss of Rs.50,000 crores to the Government. His dubious move has been to ensure benefit to others at the cost of the national exchequer.\"\nThe request made in the representation, which was relied upon by the learned Attorney General for showing that the appellant had himself asked for an investigation, is also extracted below:\n\"According to an uncontradicted report in CNN-IBN news channel of November 26, 2008, you are said to be \"very upset with A. Raja over the spectrum allocation issue\". This confirms that an investigation is necessary, for which I may be given sanction so that the process of law can be initiated.\nI, therefore, writ to demand the grant of sanction to prosecute Mr. A. Raja, Minister for Telecom of the Union of India for offences under the Prevention of Corruption Act. The charges in brief are annexed herewith (Annexure 3).\"\n4. Since the appellant did not receive any response from respondent No.1, he sent letters dated 30.5.2009, 23.10.2009, 31.10.2009, 8.3.2010 and 13.3.2010 and reiterated his request/demand for grant of sanction to prosecute respondent No.2. In his letter dated 31.10.2009, the appellant referred to the fact that on being directed by the CVC, the Central Bureau of Investigation (CBI) had registered a first information report, and claimed that prima facie case is established against respondent No. 2 for his prosecution u/ss. 11 and 13(1)(d) of the 1988 Act.\nThe appellant also claimed that according to various Supreme Court judgments it was not necessary to carry out a detailed inquiry, and he had produced sufficient evidence for grant of sanction to initiate criminal prosecution against respondent No. 2 for the misuse of authority and pecuniary gains from corrupt practices. In his subsequent letters, the appellant again asserted that the nation had suffered loss of nearly Rs.65,000 crores due to arbitrary, unreasonable and mala fide action of respondent No.2. In letter dated 13.3.2010, the appellant referred to the proceedings of the case in which this Court refused to interfere with the order of the Delhi High Court declaring that the decision of respondent No.2 to change the cutoff date fixed for consideration of applications made for grant of licences was arbitrary and mala fide.\n5. After 1 year and 4-1/2 months of the first letter written by him, Secretary, Department of Personnel and Training, Ministry of Personnel sent letter dated 19.3.2010 to the appellant mentioning therein that the CBI had registered a case on 21.10.2009 against unknown officers of the Department of Telecommunications (DoT), unknown private persons/companies and others and that the issue of grant of sanction for prosecution would arise only after perusal of the evidence collected by the investigating agency and other material provided to the Competent Authority and that it would be premature to consider sanction for prosecution at that stage.\n6. On receipt of the aforesaid communication, the appellant filed Civil Writ Petition No. 2442/2010 in the Delhi High Court and prayed for issue of a mandamus to respondent No.1 to pass an order for grant of sanction for prosecution of respondent No. 2. The Division Bench of the Delhi High Court referred to the submission of the learned Solicitor General that when respondent No. 1 has directed investigation by the CBI and the investigation is in progress, it is not permissible to take a decision on the application of the appellant either to grant or refuse the sanction because that may affect the investigation, and dismissed the writ petition by recording the following observations:\n\"The question that emanates for consideration is whether, at this stage, when the investigation by the CBI is in progress and this Court had earlier declined to monitor the same by order dated 25th May, 2010, which has been pressed into service by the learned Solicitor General of India, it would be appropriate to direct the respondent no. 1 to take a decision as regards the application submitted by the petitioner seeking sanction to prosecute.\nIn our considered opinion, when the matter is being investigated by the CBI, and the investigation is in progress, it would not be in fitness of things to issue a mandamus to the first respondent to take a decision on the application of the petitioner.\"\n7. The special leave petition filed by the appellant, out of which this appeal arises, was initially taken up for consideration along with SLP(C) No. 24873/2010 filed by the Center for Public Interest Litigation against order dated 25.5.2010 passed by the Division Bench of the High Court in Writ Petition (Civil) No. 3522/2010 to which reference had been made in the impugned order. During the course of hearing of the special leave petition filed by the appellant, the learned Solicitor General, who had appeared on behalf of respondent No. 1, made a statement that he has got the record and is prepared to place the same before the Court.\nHowever, keeping in view the fact that the record sought to be produced by the learned Solicitor General may not be readily available to the appellant, the Court passed order dated 18.11.2010 requiring the filing of an affidavit on behalf of respondent No. 1. Thereafter, Shri V. Vidyavati, Director in the PMO filed affidavit dated 20.11.2010, which reveals the following facts:\n\"(i) On 1.12.2008, the Prime Minister perused the letter and noted \"Please examine and let me know the facts of this case\". This was marked to the Principal Secretary to the Prime Minister who in turn marked it to the Secretary. The Secretary marked it to me as Director in the PMO. I prepared a note dated 5.12.2008 factually summarizing the allegations and seeking approval to obtain the factual position from the sectoral side (in the PMO dealing with Telecommunications).\n(ii) On 11.12.2008, a copy of appellant's letter dated 29.11.2008 was sent to the Secretary, Department of Telecommunication for submitting a factual report. The Department of Telecommunication sent reply dated 13.02.2009 incorporating his comments.\n(iii) In the meanwhile, letters dated 10.11.2008 and 22.11.2008 were received from Shri Gurudas Gupta and Shri Suravaran Sudhakar Reddy respectively (copies of these letters have not been produced before the Court). The same were forwarded to the Department of Telecommunication on 25.03.2009 for sending an appropriate reply to the appellant.\n(iv) On 01.06.2009, letter dated 30.05.2009 received from the appellant was placed before respondent No.1, who recorded the following endorsement \"please examine and discuss\".\n(v) On 19.06.2009, the Director of the concerned Sector in the PMO recorded that the Minister of Telecommunications and Information Technology has sent D.O. letter dated 18.06.2009 to the appellant. When letter dated 23.10.2009 of the appellant was placed before respondent No.1, he recorded an endorsement on 27.10.2009 \"please discuss\".\n(vi) In response to letter dated 31.10.2009 of the appellant, respondent No.1 made an endorsement \"please examine\".\n(vii) On 18.11.2009, respondent No.1 stated that Ministry of Law and Justice should examine and advice. The advice of Ministry of Law and Justice was received on 8.2.2010. Para 7 thereof was as follows:\n\"From the perusal of letter dated 23.10.2009 and 31.10.2009, it is noticed that Shri Swamy wants to rely upon the action and investigation of the CBI to collaborate and strengthen the said allegation leveled by him against Shri A. Raja, Minister for Communication and Information Technology. It is specifically mentioned in Para 2 of the letter dated 31.10.2009 of Shri Swamy that the FIR was registered by the CBI and \"the substance of the allegation made by me in the above cited letters to you are already under investigation\". If it is so, then it may be stated that decision to accord of sanction of prosecution may be determined only after the perusal of the evidence (oral or documentary) collected by the investigation agency, i.e., CBI and other materials to be provided to the competent authority.\"\n(viii) On 05.03.2010, the deponent prepared a note that an appropriate reply be sent to the appellant in the light of the advice given by the Law Department and final reply was sent to the appellant after respondent No.1 had approved note dated 17.03.2010.\"\n8. The appellant filed rejoinder affidavit on 22.11.2010 along with a copy of letter dated 18.6.2009 written to him by respondent No. 2 in the context of representation dated 29.11.2008 submitted by him to respondent No.1.\n9. Although, respondent No.2 resigned from the Council of Ministers on 14.11.2010, the appellant submitted that the issues relating to his right to file a complaint for prosecution of respondent No.2 and grant of sanction within the time specified in the judgment in Vineet Narain's case should be decided.\n10. During the course of hearing, the learned Attorney General filed written submissions. After the hearing concluded, the learned Attorney General filed supplementary written submissions along with a compilation of 126 cases in which the sanction for prosecution is awaited for periods ranging from more than one year to few months\n11. Final order in this case was deferred because it was felt that the directions given by this Court in Vineet Narain's case may require further elaboration in the light of the order passed in Civil Appeal No. 10660/2010 (arising out of SLP(C) No. 24873/2010) and the fact that decision on the question of grant of sanction under the 1988 Act and other statutes is pending for a sufficiently long time in 126 cases. However, as the investigation with regard to some of the facets of what has come to be termed as 2G case is yet to be completed, we have considered it appropriate to pass final order in the matter.\n12. Appellant Dr. Subramanian Swamy argued that the embargo contained in S. 19(1) of the 1988 Act operates only against the taking of cognizance by the Court in respect of offences punishable under Sections 7, 10, 11, 13 and 15 committed by a public servant, but there is no bar to the filing of a private complaint for prosecution of the concerned public servant and grant of sanction by the Competent Authority, and that respondent No. 1 was duty bound to take appropriate decision on his representation within the time specified in cl. I(15) of the directions contained in Vineet Narain's case, more so because he had placed sufficient evidence to show that respondent No.2 had committed offences under the 1988 Act.\n13. The learned Attorney General argued that the question of grant of sanction for prosecution of a public servant charged with any of the offences enumerated in S. 19(1) arises only at the stage when the Court decides to take cognizance and any request made prior to that is premature. He submitted that the embargo contained in S. 19(1) of the Act is applicable to the Court which is competent to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant and there is no provision for grant of sanction at a stage before the competent Court applies its mind to the issue of taking cognizance.\nLearned Attorney General relied upon the judgment of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs v. Abani Kumar Banerjee AIR 1950 Cal. 437 1950 Indlaw CAL 117 as also the judgments of this Court in R.R. Chari v. State of Uttar Pradesh 1951 SCR 312 1951 Indlaw SC 84, Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252 1976 Indlaw SC 591, Ram Kumar v. State of Haryana (1987) 1 SCC 476 1987 Indlaw SC 28119, Krishna Pillai v. T.A. Rajendran, 1990 (Supp) SCC 121 1989 Indlaw SC 313, State of West Bengal v. Mohd. Khalid (1995) 1 SCC 684 1994 Indlaw SC 573, State through C.B.I. v. Raj Kumar Jain (1998) 6 SCC 551 1998 Indlaw SC 905, K. Kalimuthu v. State (2005) 4 SCC 512 2005 Indlaw SC 773, Centre for Public Interest Litigation v. Union of India (2005) 8 SCC 202 2005 Indlaw SC 874 and State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 2006 Indlaw SC 368 and argued that letter dated 29.11.2008 sent by the appellant for grant of sanction to prosecute respondent No.2 for the alleged offences under the 1988 Act was wholly misconceived and respondent No.1 did not commit any illegality or constitutional impropriety by not entertaining his prayer, more so because the appellant had himself asked for an investigation into the alleged illegal grant of licences at the behest of respondent No.2. Learned Attorney General further argued that the appellant does not have the locus standi to file a complaint for prosecuting respondent No.2 because the CBI is already investigating the allegations of irregularity committed in the grant of licences for 2G spectrum and the loss, if any, suffered by the Public Exchequer.\n14. We have considered the respective submissions. S. 19 of the 1988 Act reads as under:\n\"19. Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -\n(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;\n(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;\n(c) in the case of any other person, of the authority competent to remove him from his office.\n(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-s. (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.\n(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-\n(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;\n(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;\n(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.\n(4) In determining under sub-s. (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation. -\nFor the purposes of this section,\n(a) Error includes competency of the authority to grant sanction;\n(b) A sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.\"\n15. The question whether sanction for prosecution of respondent No.2 for the offences allegedly committed by him under the 1988 Act is required even after he resigned from the Council of Ministers, though he continues to be a Member of Parliament, need not detain us because the same has already been answered by the Constitution Bench in R. S. Nayak v. A. R. Antulay (1984) 2 SCC 183 1984 Indlaw SC 338 the relevant portions of which are extracted below:\n\"Now if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used (misused) nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to us. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used (misused) or abused would be able to decide whether the prosecution is frivolous or tendentious.\nAn illustration was posed to the learned counsel that a minister who is indisputably a public servant greased his palms by abusing his office as minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by S. 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of S. 6 would render it as a shield to an unscrupulous public servant.\nSomeone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. One can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant u/s. 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant, while abusing one office which he may have ceased to hold. Such an interpretation is contrary to all canons of construction and leads to an absurd end product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rogue's charter.\nWe would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decision in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of S. 6.\"\n16. The same view has been taken in Habibullsa Khan v. State of Orissa (1995) 2 SCC 437 1995 Indlaw SC 1517 , State of H.P. v. M. P. Gupta (2004) 2 SCC 349 2003 Indlaw SC 1126, Parkash Singh Badal v. State of Punjab (2007) 1 SCC 1 2006 Indlaw SC 941 and Balakrishnan Ravi Menon v. Union of India (2007) 1 SCC 45 2002 Indlaw SC 2306. In Balakrishnan Ravi Menon's case, it was argued that the observations made in the judgment in Antulay's case are obiter. While negating this submission, the Court observed :\n\"Hence, it is difficult to accept the contention raised by Mr. U.R. Lalit, the learned Senior Counsel for the petitioner that the aforesaid finding given by this Court in Antulay case is obiter.\nFurther, under S. 19 of the PC Act, sanction is to be given by the Government or the authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. The question of obtaining sanction would arise in a case where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has committed the offence. The word \"office\" repeatedly used in S. 19 would mean the \"office\" which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted. Sub-ss. (1) and (2) of S. 19 are as under:\n\"19. Previous sanction necessary for prosecution.\n(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--\n(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-s. (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.\"\nCls. (a) and (b) of sub-s. (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or th e State Government, as the case may be, sa nction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words \"who is employed\" in connection with the affairs of the Union or the State Government. If he is not employed then S. 19 nowhere provides for obtaining such sanction.\nFurther, under sub-section (2), the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. In case where the person is not holding the said office as he might have retired, superannuated, be discharged or dismissed then the question of removing would not arise. Admittedly, when the alleged offence was committed, the petitioner was appointed by the Central Government. He demitted his office after completion of five years' tenure. Therefore, at the relevant time when the charge-sheet was filed, the petitioner was not holding the office of the Chairman of Goa Shipyard Ltd.\nHence, there is no question of obtaining any previous sanction of the Central Government.\"\n(Emphasis supplied)\n17. The same view was reiterated in Parkash Singh Badal's case and the argument that even though some of the accused persons had ceased to be Ministers, they continued to be the Members of the Legislative Assembly and one of them was a Member of Parliament and as such cognizance could not be taken against them without prior sanction, was rejected.\n18. The next question which requires consideration is whether the appellant has the locus standi to file a complaint for prosecution of respondent No.2 for the offences allegedly committed by him under the 1988 Act. There is no provision either in the 1988 Act or the Code of Criminal Procedure, 1973 (CrPC) which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence.\nTherefore, the argument of the learned Attorney General that the appellant cannot file a complaint for prosecuting respondent No.2 merits rejection. A similar argument was negatived by the Constitution Bench in A.R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 1984 Indlaw SC 337. The facts of that case show that on a private complaint filed by the respondent, the Special Judge took cognizance of the offences allegedly committed by the appellant. The latter objected to the jurisdiction of the Special Judge on two counts, including the one that the Court set up under S. 6 of the Criminal Law Amendment Act, 1952 (for short, 'the 1952 Act') was not competent to take cognizance of any of the offences enumerated in S. 6(1)(a) and (b) upon a private complaint. His objections were rejected by the Special Judge.\nThe revision filed by the appellant was heard by the Division Bench of the High Court which ruled that a Special Judge is competent and is entitled to take cognizance of offences under S. 6(1)(a) and (b) on a private complaint of the facts constituting the offence. The High Court was of the opinion that a prior investigation under Section 5A of the Prevention of Corruption Act, 1947 (for short, 'the 1947 Act') by a police officer of the designated rank is not sine qua non for taking cognizance of an offence u/s. 8(1) of the 1952 Act. Before the Supreme Court, the argument against the locus standi of the respondent was reiterated and it was submitted that Section 5A of the 1947 Act is mandatory and an investigation by the designated officer is a condition precedent to the taking of cognizance by the Special Judge of an offence or offences committed by a public servant. While dealing with the issue relating to maintainability of a private complaint, the Constitution Bench observed:\n\"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) S. 97 of Gold Control Act, 1968 (iii) S. 6 of Import and Export Control Act, 1947 (iv) S. 271 and S. 279 of the Income Tax Act, 1961 (v) S. 61 of the Foreign Exchange Regulation Act, 1973, (vi) S. 621 of the Companies Act, 1956 and (vii) S. 77 of the Electricity Supply Act.\nThis list is only illustrative and not exhaustive. While S. 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Ss. 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender.\nTherefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait- jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision and a tangled web of argument for drawing a farfetched implication, cannot be a substitute for an express statutory provision.\"\nThe Constitution Bench then considered whether the Special Judge can take cognizance only on the basis of a police report and answered the same in negative in the following words:\n\"In the matter of initiation of proceeding before a Special Judge u/s. 8(1), the Legislature while conferring power to take cognizance had three opportunities to unambiguously state its mind whether the cognizance can be taken on a private complaint or not. The first one was an opportunity to provide in S. 8(1) itself by merely stating that the Special Judge may take cognizance of an offence on a police report submitted to it by an investigating officer conducting investigation as contemplated by Section 5- A. While providing for investigation by designated police officers of superior rank, the Legislature did not fetter the power of Special Judge to take cognizance in a manner otherwise than on police report. The second opportunity was when by S. 8(3) a status of a deemed public prosecutor was conferred on a private complainant if he chooses to conduct the prosecution. The Legislature being aware of a provision like the one contained in S. 225 of the CrPC, could have as well provided that in every trial before a Special Judge the prosecution shall be conducted by a Public Prosecutor, though that itself would not have been decisive of the matter.\nAnd the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by Special Judge did not exclude by a specific provision that the only procedure which the Special Judge can follow is the one prescribed for trial of warrant cases on a police report. The disinclination of the Legislature to so provide points to the contrary and no canon of construction permits the court to go in search of a hidden or implied limitation on the power of the Special Judge to take cognizance unfettered by such requirement of its being done on a police report alone. In our opinion, it is no answer to this fairly well- established legal position that for the last 32 years no case has come to the notice of the court in which cognizance was taken by a Special Judge on a private complaint for offences punishable under the 1947 Act.\"\nThe Court then referred to Section 5A of the 1947 Act, the provisions of the 1952 Act, the judgments in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150 1954 Indlaw SC 14, State of M.P. v. Mubarak Ali 1959 Supp. (2) SCR 201 1959 Indlaw SC 137, Union of India v. Mahesh Chandra AIR 1957 M.B. 43 1956 Indlaw MP 98 and held:\n\"Having carefully examined these judgments in the light of the submissions made, the only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by the Court of Special Judge. It also follows as a necessary corollary that provision of Section 5-A is not a condition precedent to initiation of proceedings before the Special Judge who acquires power u/s. 8(1) to take co gnizance of offences enumerated in S. 6(1)(a) and (b), with this limitation alone that it shall not be upon commitment to him by the Magistrate.\nOnce the contention on behalf of the appellant that investigation under Section 5-A is a condition precedent to the initiation of proceedings before a Special Judge and therefore cognizance of an offence cannot be taken except upon a police report, does not commend to us and has no foundation in law, it is unnecessary to refer to the long line of decisions co mmencing from Taylor v. Taylor ; N azir Ahmad v. Kin g-Emperor 1936 Indlaw PC 38 and ending with C hettiam Veettil A mmad v. Ta luk Land Board 1979 Indlaw SC 235 , laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. Once Section 5-A is out of the way in the matter of taking cognizance of offences committed by public servants by a Special Judge, the power of the Special Judge to take cognizance of such offences conferred by S. 8(1) with only one limitation, in any one of the known methods of taking cognizance of offences by courts of original jurisdiction remains undented. One such statutorily recognised well-known method of taking cognizance of offences by a court competent to take cognizance is upon receiving a complaint of facts which constitutes the offence. And S. 8(1) says that the Special Judge has the power to take cognizance of offences enumerated in S. 6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is upon commitment.\nIt therefore, follows that the Special Judge can take cognizance of offences committed by public servants upon receiving a complaint of facts constituting such offences. It was, however, submitted that even if it be held that the Special Judge is entitled to entertain a private complaint, no further steps can be taken by him without directing an investigation under Section 5-A so that the safeguard of Section 5-A is not whittled down. This is the selfsame argument under a different apparel. Accepting such a submission would tantamount to saying that on receipt of the complaint the Special Judge must direct an investigation under Section 5-A, There is no warrant for such an approach. Astounding as it appeared to us, in all solemnity it was submitted that investigation of an offence by a superior police officer affords a more solid safeguard compared to a court. Myopic as this is, it would topsy turvy the fundamental belief that to a person accused of an offence there is no better safeguard than a court. And this is constitutionally epitomised in Art. 22 that upon arrest by police, the arrested person must be produced before the nearest Magistrate within twenty- four hours of the arrest.\nFurther, numerous provisions of the Code of Criminal Procedure such as Section 161, Section 164, and S. 25 of the Indian Evidence Act would show the Legislature's hesitation in placing confidence on police officers away from court's gaze. And the very fact that power is conferred on a Presidency Magistrate or Magistrate of the first class to permit police officers of lower rank to investigate these offences would speak for the mind of the Legislature that the court is a more reliable safeguard than even superior police officers.\"\n19. In view of the aforesaid judgment of the Constitution Bench, it must be held that the appellant has the right to file a complaint for prosecution of respondent No.2 in respect of the offences allegedly committed by him under the 1988 Act.\n20. The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him. Though, the term 'cognizance' has not been defined either in the 1988 Act or the CrPC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is \"taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially\". In R. R. Chari v. State of U.P. (1951) SCR 312 1951 Indlaw SC 84, the three Judge Bench approved the following observations made by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee 1950 Indlaw CAL 117 (supra):\n\"What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence u/s. 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding u/s. 200 and thereafter sending it for inquiry and report u/s. 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation u/s. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.\"\n21. In Mohd. Khalid's case, the Court referred to S. 190 of the CrPC and observed :\n\"In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.\"\n22. In Pastor P. Raju's case, this Court referred to the provisions of Chapter XIV and Ss. 190 and 196 (1-A) of the CrPC and observed:\n\"There is no bar against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation, as contemplated by S. 173 CrPC. If a criminal case is registered, investigation of the offence is done and the police submits a report as a result of such investigation before a Magistrate without the previous sanction of the Central Government or of the State Government or of the District Magistrate, there will be no violation of S. 196(1-A) CrPC and no illegality of any kind would be committed.\"\nThe Court then referred to some of the precedents including the judgment in Mohd. Khalid's case and observed:\n\"It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.\"\n23. In Kalimuthu's case, the only question considered by this Court was whether in the absence of requisite sanction u/s. 197 CrPC, the Special Judge for CBI cases, Chennai did not have the jurisdiction to take cognizance of the alleged offences. The High Court had taken the view that S. 197 was not applicable to the appellant's case. Affirming the view taken by the High Court, this Court observed :\n\"The question relating to the need of sanction u/s. 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.\"\n24. In Raj Kumar Jain's case, this Court considered the question whether the CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report u/s. 173(2) of the CrPC. This question was considered in the backdrop of the fact that the CBI, which had investigated the case registered against the respondent u/s. 5(2) read with S. 5(1)(e) of the 1947 Act found that the allegation made against the respondent could not be substantiated. The Special Judge declined to accept the report submitted u/s. 173(2) CrPC by observing that the CBI was required to place materials collected during investigation before the sanctioning authority and it was for the concerned authority to grant or refuse sanction. The Special Judge opined that only after the decision of the sanctioning authority, the CBI could submit the report u/s. 173(2). The High Court dismissed the petition filed by the CBI and confirmed the order of the Special Judge. This Court referred to S. 6(1) of the 1947 Act and observed:\n\"From a plain reading of the above section it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, the CBI was under no obligation to place the materials collected during investigation before the sanctioning authority, when they found that no case was made out against the respondent. To put it differently, if the CBI had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet (challan) against him, then only the question of obtaining sanction of the authority under S. 6(1) of the Act would have arisen for without that the Court would not be competent to take cognizance of the charge-sheet. It must, therefore, be said that both the Special Judge and the High Court were patently wrong in observing that the CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report u/s. 173(2) CrPC.\"\n25. In our view, the decisions relied upon by the learned Attorney General do not have any bearing on the moot question whether respondent No.1, being the Competent Authority to sanction prosecution of respondent No.2, was required to take appropriate decision in the light of the direction contained in Vineet Narain's case.\n26. Before proceeding further, we would like to add that at the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed u/s. 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter.\nHowever, before issuing the process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-sheet filed under S. 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out.\n27. We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the Competent Authority before it takes a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the Competent Authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail appropriate legal remedy.\n28. In Vineet Narain's case, the Court entertained the writ petitions filed in public interest for ensuring investigation into what came to be known as 'Hawala case'. The writ petition remained pending for almost four years. During that period, several interim orders were passed which are reported as Vineet Narain v. Union of India 1996 (1) SCALE (SP) 42 1997 Indlaw SC 1247, Vineet Narain v. Union of India (1996) 2 SCC 199 1997 Indlaw SC 1247, Vineet Narain v. Union of India (1997) 4 SCC 778 1997 Indlaw SC 1247 and Vineet Narain v. Union of India (1997) 5 SCALE 254 1997 Indlaw SC 1247. The final order was passed in Vineet Narain v. Union of India (1998) 1 SCC 226 1997 Indlaw SC 1247. In (1996) 2 SCC 1991997 Indlaw SC 1247, the Court referred to the allegations made in the writ petition that Government agencies like the CBI and the revenue authorities have failed to perform their duties and legal obligations inasmuch as they did not investigate into the matters arising out of seizure of the so-called \"Jain Diaries\" in certain raids conducted by the CBI.\nThe Court took note of the allegation that the arrest of some terrorists led to the discovery of financial support to them by clandestine and illegal means and a nexus between several important politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, and proceeded to observe:\n\"The facts and circumstances of the present case do indicate that it is of utmost public importance that this matter is examined thoroughly by this Court to ensure that all government agencies, entrusted with the duty to discharge their functions and obligations in accordance with law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law: \"Be you ever so high, the law is above you.\" Investigation into every accusation made against each and every person on a reasonable basis, irrespective of the position and status of that person, must be conducted and completed expeditiously. This is imperative to retain public confidence in the impartial working of the government agencies.\"\n29. After examining various facets of the matter in detail, the three Judge Bench in its final order reported in (1998) 1 SCC 226 1997 Indlaw SC 1247 observed:\n\"These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold.\nIt also has adverse effect on foreign investment and funding from the International Monetary Fund and the World Bank who have warned that future aid to underdeveloped countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries: R. v. Secy. of State for Foreign and Commonwealth Affairs.\"\nIn paragraph 162 of the judgment, the Court gave several directions in relation to the CBI, the CVC and the Enforcement Directorate. Court gave the following direction:\n\"Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office.\"\n30. The CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab (1996) Crl. Law Journal 2962 1996 Indlaw PNH 54, State of Bihar v. P. P. Sharma 1991 Supp. 1 SCC 222 1991 Indlaw SC 1053, Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225 1995 Indlaw SC 1154, framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:\n\"2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence.\n(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department.\n(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.\n(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narain's case.\"\n31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.\n32. In the light of the above discussion, we shall now consider whether the High Court was justified in refusing to entertain the writ petition filed by the appellant. In this context, it is apposite to observe that the High Court had proceeded under a wholly erroneous assumption that respondent No.1 had directed investigation by the CBI into the allegations of grave irregularities in the grant of licences. As a matter of fact, on receipt of representation dated 4.5.2009 that the grant of licences by respondent No.2 had resulted in huge loss to the Public Exchequer, the CVC got conducted an inquiry u/s. 8(d) of the Central Vigilance Commission Act, 2003 and forwarded a copy of the report to the Director, CBI for making an investigation into the matter to establish the criminal conspiracy in the allocation of 2G spectrum under the UASL policy of the DoT and to bring to book all the wrongdoers.\nThereupon, the CBI registered FIR No.RC-DI-2009-A-0045 dated 21.10.2009 against unknown officials of the DoT, unknown private persons/companies and others for offences under Section 120-B IPC read with Ss. 13(2) and 13(1)(d) of the 1988 Act. For the next about one year, the matter remained dormant and the CBI took steps for vigorous investigation only when this Court intervened in the matter. The material placed on record does not show that the CBI had registered a case or started investigation at the instance of respondent No.1.\n33. On his part, the appellant had submitted representation to respondent No. 1 almost one year to the registration of the first information report by the CBI and highlighted the grave irregularities committed in the grant of licences resulting in the loss of thousands of crores of rupees to the Public Exchequer. He continuously pursued the matter by sending letters to respondent No.1 at regular intervals. The affidavit filed by Shri V. Vidyawati, Director in the PMO shows that the matter was placed before respondent No.1 on 1.12.2008, who directed the concerned officer to examine and apprise him with the facts of the case. Surprisingly, instead of complying with the direction given by respondent No.1 the concerned officer sent the appellant's representation to the DoT which was headed by none other than respondent No.2 against whom the appellant had made serious allegations of irregularities in the grant of licences. It was natural for respondent No.2 to have seized this opportunity, and he promptly sent letter dated 18.6.2009 to the appellant justifying the grant of licences. The concerned officer in the PMO then referred the matter to the Ministry of Law and Justice for advice.\nIt is not possible to appreciate that even though the appellant repeatedly wrote letters to respondent No.1 highlighting the seriousness of the allegations made in his first representation and the fact that he had already supplied the facts and documents which could be made basis for grant of sanction to prosecute respondent No.2 and also pointed out that as per the judgments of this Court, detailed inquiry was not required to be made into the allegations, the concerned officers in the PMO kept the matter pending and then took the shelter of the fact that the CBI had registered the case and the investigation was pending. In our view, the officers in the PMO and the Ministry of Law and Justice, were duty bound to apprise respondent No.1 about seriousness of allegations made by the appellant and the judgments of this Court including the directions contained in the judgment in Vineet Narain's case as also the guidelines framed by the CVC so as to enable him to take appropriate decision in the matter.\nBy the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.\n34. In the result, the appeal is allowed. The impugned order is set aside. It is declared that the appellant had the right to file a complaint for prosecuting respondent No.2. However, keeping in view the fact that the Court of Special Judge, CBI has already taken cognizance of the offences allegedly committed by respondent No.2 under the 1988 Act, we do not consider it necessary to give any other direction in the matter. At the same time, we deem it proper to observe that in future every Competent Authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain v. Union of India (1998) 1 SCC 226 1997 Indlaw SC 1247 and the guidelines framed by the CVC.\nAsok Kumar Ganguly, J.\n35. After going through the judgment rendered by my learned brother G.S. Singhvi, J., I am in agreement with the various conclusions reached by His Lordship. However, I have added my own views on certain important facts of the questions raised in this case.\n36. Brother Singhvi, J., has come to a finding that having regard to the very nature of the office held by respondent No.1, it may not be expected of respondent No.1 to personally look into the minute details of each and every matter and the respondent No.1, having regard to the burden of his very onerous office, has to depend on the officers advising him. At the same time it may be noted that in the course of submission, the appellant, who argued in person, did not ever allege any malafide or lack of good faith against the respondent No.1. The delay which had taken place in the office of the respondent No.1 is unfortunate but it has not even been alleged by the appellant that there was any deliberate action on the part of the respondent No.1 in causing the delay. The position of respondent No.1 in our democratic polity seems to have been summed up in the words of Shakespeare \"Uneasy lies the head that wears a crown\" (Henry, The Fourth, Part 2 Act 3, scene 1).\n37. I also agree with the conclusions of bother Singhvi, J., that the appellant has the locus to file the complaint for prosecution of the respondent No.2 in respect of the offences alleged to have been committed by him under the 1988 Act.\nTherefore, I agree with the finding of brother Singhvi, J., that the argument of the learned Attorney General to the contrary cannot be accepted. Apart from that the learned Attorney General in the course of his submission proceeded on the basis that the question of sanction has to be considered with reference to S. 19 of the Prevention of Corruption Act (hereinafter \"the P.C. Act\") or with reference to S. 197 of the Code of Criminal Procedure, 1973 (hereinafter \"the Code\"), and the scheme of both the sections being similar (Vide of the supplementary written submission filed by the learned Attorney General). In fact, the entire submission of the learned Attorney General is structured on the aforesaid assumption.\nI fail to appreciate the aforesaid argument as the same is contrary to the scheme of S. 19 of the P.C. Act and also S. 197 of the Code. In Kalicharan Mahapatra vs. State of Orissa reported in (1998) 6 SCC 411 1998 Indlaw SC 907, this Court compared S. 19 of P.C. Act with S. 197 of the Code. After considering several decisions on the point and also considering S. 6 of the old P.C. Act, 1947 which is almost identical with S. 19 of the P.C. Act, 1988 and also noting Law Commission's Report, this Court in paragraph 13 of Kalicharan 1998 Indlaw SC 907 (supra) came to the following conclusions:\n\"The sanction contemplated in S. 197 of the Code concerns a public servant who \"is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty\", whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in S. 197 of the Code.\"\n38. The above passage in Kalicharan 1998 Indlaw SC 907 (supra) has been quoted with approval subsequently by this Court in Lalu Prasad vs. State of Bihar in 2007 (1) SCC 49 2006 Indlaw SC 997. This Court held in Lalu Prasad 2006 Indlaw SC 997 (supra) that \"S. 197 of the Code and S. 19 of the Act operate in conceptually different fields\".\n39. In view of such consistent view by this Court the basic submission of the learned Attorney General to the contrary is, with respect, untenable.\n40. I also entirely agree with the conclusion of learned brother Singhvi, J., that the argument of the learned Attorney General that question for granting sanction for prosecution of a public servant charged with offences under the 1988 Act arises only at the stage of cognizance is also not acceptable.\n41. In formulating this submission, the learned Attorney General substantially advanced two contentions. The first contention is that an order granting sanction is not required to be filed along with a complaint in connection with a prosecution under S. 19 of the P.C. Act. The aforesaid submission is contrary to the settled law laid down by this Court in various judgments. Recently a unanimous three-judge Bench decision of this Court in the case of State of Uttar Pradesh vs. Paras Nath Singh, ((2009) 6 SCC 372 2009 Indlaw SC 1905), speaking through Justice Pasayat and construing the requirement of sanction, held that without sanction:\n\"......The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.\"\n42. The other contention of the learned Attorney General is that in taking cognizance under the P.C. Act the Court is guided by the provisions under S. 190 of the Code and in support of that contention the learned Attorney General relied on several judgments. However, the aforesaid submissions were made without noticing the judgment of this Court in the case of Dilawar Singh vs. Parvinder Singh alias Iqbal Singh and Another (2005) 12 SCC 709 2005 Indlaw SC 715. Dealing with S. 19 of P.C. Act and S. 190 of the Code, this Court held in paragraph 10 as follows:\n\"......The Prevention of Corruption Act is a special statute and as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateswara Rao v. Govt. of A.P 1965 Indlaw SC 245., State of Bihar v. Dr. Yogendra Singh 1982 Indlaw SC 98 and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth 1984 Indlaw SC 322.) Therefore, the provisions of S. 19 of the Act will have an overriding effect over the general provisions contained in S. 190......\"\n43. Therefore, concurring with brother Singhvi, J., I am unable to uphold the submission of the learned Attorney General.\n44. As I am of the humble opinion that the questions raised and argued in this case are of considerable constitutional and legal importance, I wish to add my own reasoning on the same.\n45. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision.\nTherefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.\n46. Time and again this Court has expressed its dismay and shock at the ever growing tentacles of corruption in our society but even then situations have not improved much. [See Sanjiv Kumar v. State of Haryana & ors., (2005) 5 SCC 517 2003 Indlaw SC 1605; State of A.P. v. V. Vasudeva Rao, (2004) 9 SCC 319 2003 Indlaw SC 997; Shobha Suresh Jumani v. Appellate Tribunal Forfeited Property & another, (2001) 5 SCC 755 2001 Indlaw SC 235; State of M.P. & ors. v. Ram Singh, (2000) 5 SCC 88 2000 Indlaw SC 521; J. Jayalalitha v. Union of India & another, (1999) 5 SCC 138 1999 Indlaw SC 1705; Major S.K. Kale v. State of Maharashtra, (1977) 2 SCC 394 1976 Indlaw SC 293.]\n47. Learned Attorney General in the course of his submission fairly admitted before us that out of total 319 requests for sanction, in respect of 126 of such requests, sanction is awaited. Therefore, in more than 1/3rd cases of request for prosecution in corruption cases against public servants, sanctions have not been accorded. The aforesaid scenario raises very important constitutional issues as well as some questions relating to interpretation of such sanctioning provision and also the role that an independent judiciary has to play in maintaining rule of law and common man's faith in the justice delivering system.\n48. Both rule of law and equality before law are cardinal questions in our Constitutional Laws as also in International law and in this context the role of the judiciary is very vital. In his famous treatise on Administrative Law, Professor Wade while elaborating the concept of rule of law referred to the opinion of Lord Griffith's which runs as follows:\n\"the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.\"\n49. I am in respectful agreement with the aforesaid principle.\n50. In this connection we might remind ourselves that courts while maintaining rule of law must structure its jurisprudence on the famous formulation of Lord Coke where the learned Law Lord made a comparison between \"the golden and straight metwand of law\" as opposed to \"the uncertain and crooked cord of discretion\".\n51. The right of private citizen to file a complaint against a corrupt public servant must be equated with his right to access the Court in order to set the criminal law in motion against a corrupt public official. This right of access, a Constitutional right should not be burdened with unreasonable fetters. When a private citizen approaches a court of law against a corrupt public servant who is highly placed, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society and maintaining equal balance in the rule of law. It was pointed out by the Constitution Bench of this Court in Sheonandan Paswan vs. State of Bihar and Others, (1987) 1 SCC 288 at page 315 1986 Indlaw SC 39:\n\"......It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak 1988 Indlaw SC 467 this Court pointed out that \"punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi......\"\n52. Keeping those principles in mind, as we must, if we look at S. 19 of the P.C. Act which bars a Court from taking cognizance of cases of corruption against a public servant under Sections 7, 10, 11, 13 and 15 of the Act, unless the Central or the State Government, as the case may be, has accorded sanction, virtually imposes fetters on private citizens and also on prosecutors from approaching Court against corrupt public servants. These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution.\nHowever, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Art. 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.\nTherefore, in every case where an application is made to an appropriate authority for grant of prosecution in connection with an offence under P.C. Act it is the bounden duty of such authority to apply its mind urgently to the situation and decide the issue without being influenced by any extraneous consideration. In doing so, the authority must make a conscious effort to ensure the rule of law and cause of justice is advanced. In considering the question of granting or refusing such sanction, the authority is answerable to law and law alone. Therefore, the requirement to take the decision with a reasonable dispatch is of the essence in such a situation. Delay in granting sanction proposal thwarts a very valid social purpose, namely, the purpose of a speedy trial with the requirement to bring the culprit to book.\nTherefore, in this case the right of the sanctioning authority, while either sanctioning or refusing to grant sanction, is coupled with a duty. The sanctioning authority must bear in mind that what is at stake is the public confidence in the maintenance of rule of law which is fundamental in the administration of justice. Delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds.\nI may hasten to add that this may not be factual position in this but the general demoralizing effect of such a popular perception is profound and pernicious. By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. In this connection, if we look at S. 19 of the P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.\n53. There are instances where as a result of delayed grant of sanction prosecutions under the P.C. Act against a public servant has been quashed. See Mahendra Lal Das vs. State of Bihar and Others, (2002) 1 SCC 149 2001 Indlaw SC 87, wherein this Court quashed the prosecution as the sanctioning authority granted sanction after 13 years. Similarly, in the case of Santosh De vs. Archna Guha and Others, (1994) Supp.3 SCC 735 1993 Indlaw SC 106, this Court quashed prosecution in a case where grant of sanction was unduly delayed. There are several such cases. The aforesaid instances show a blatant subversion of the rule of law. Thus, in many cases public servants whose sanction proposals are pending before authorities for long periods of time are being allowed to escape criminal prosecution.\n54. Art. 14 must be construed as a guarantee against uncanalized and arbitrary power. Therefore, the absence of any time limit in granting sanction in S. 19 of the P.C. Act is not in consonance with the requirement of the due process of law which has been read into our Constitution by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India and Another, (1978) 1 SCC 248 1978 Indlaw SC 212.\n55. I may not be understood to have expressed any doubt about the constitutional validity of S. 19 of the P.C. Act, but in my judgment the power under S. 19 of the P.C. Act must be reasonably exercised. In my judgment the Parliament and the appropriate authority must consider restructuring S. 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play.\n56. In my view, the Parliament should consider the Constitutional imperative of Art. 14 enshrining the rule of law wherein 'due process of law' has been read into by introducing a time limit in S. 19 of the P.C. Act 1988 for its working in a reasonable manner. The Parliament may, in my opinion, consider the following guidelines:\n(a) All proposals for sanction placed before any Sanctioning Authority, empowered to grant sanction for the prosecution of a public servant u/s. 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority.\n(b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in cl. (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time limit.\n(c) At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the chargesheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time limit.\n57. With these additional reasons, as indicated, I agree with Brother Singhvi, J., and allow the appeal and the judgment of the High Court is set aside. No costs.\nAppeal disposed of\n"}
+{"id": "YTH8xIZM1J", "title": "", "text": "Parkash Singh Badal And Anr v State Of Punjab And Ors\nSupreme Court of India\n\n6 December 2006\nAppeal (civil) 5636 of 2006\nThe Judgment was delivered by : Hon'ble Justice Dr. Arijit Pasayat\nLeave granted.\n1.  In each of these appeals challenge is to the judgment of the Punjab and Haryana High Court dismissing the petition filed by the appellant in each case questioning the validity of proceedings initiated under the Prevention of Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code, 1860 (in short the 'IPC'). In the latter category of cases the question raised is either lack of sanction in terms of S. 197 of the Code of Criminal Procedure, 1973 (in short the 'Code') or the legality thereof.\n2.  It is the stand of the appellant in each case that the proceedings were initiated on the basis of complaints which were lodged mala fide and as an act of political vendetta. It is stated that allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence. It is stated that though the High Court primarily relied on a Constitution Bench decision of this Court in R.S. Nayak v A.R. Antulay (1984 (2) SCC 183 1984 Indlaw SC 338), the said decision was rendered in the context of the Prevention of Corruption Act, 1947 (in short the 'Old Act'). It is submitted that the provisions contained in S. 6 thereof are in pari materia to S. 19 of the Act so far as relevant for the purpose of this case; the effect of S. 6(2) of the Old Act (corresponding to S. 19(2) of the Act) was lost sight of. The decision in the said case was to the effect that if an accused is a public servant who has ceased to be a public servant and/or is a public servant of different category then no sanction in terms of S. 19(1) of the Act corresponding to S. 6(1) of the Old Act is necessary.\n3.  So far as the factual scenario of these cases is concerned appellant Sri Parkash Singh Badal was at the relevant point of time the Chief Minister of the State of Punjab, Smt. Surinder Kaur is his wife and Shri Sukhbir Singh is his son. Smt. Surinder Kaur and Shri Sukhbir Singh Badal allegedly committed offences punishable u/ss. 8 and 9 of the Act. Shri Tota Singh, Shri Gurdev Singh Badal, Dr. Ratan Singh Ajnala and Shri Sewa Singh Sekhwan were Ministers during the concerned period and were at the time of taking cognizance members of Legislative Assembly. Shri Sukhbir Singh Badal was a member of the Parliament. As noted above, primary stand is that the effect of S. 6(2) of the Old Act corresponding to S. 19 (2) of the Act was not considered and in that view of the matter the judgment in Antulay's case 1984 Indlaw SC 338 (supra) is to be considered per incuriam. Additionally, it is submitted that the voluminous charge sheets filed are extremely vague and do not indicate commission of any definite offence. Some allegations of general nature have been made. The decision in P.V. Narasimha Rao v. State (1998 (4) SCC 626 1998 Indlaw SC 690) specifically dissented from the view regarding vertical hierarchy which appears to be the foundation for the conclusion that the authority competent to remove the accused from office alone could give sanction. It is submitted that the offences alleged to have been committed under IPC had close nexus with the workmen who are on official duty and therefore sanction under S. 197 of the Code is mandatory. With reference to several judgments of this Court it is submitted that even offences punishable under Sections 468, 471 and 120B have been in certain cases held to be relatable to the official duty thereby mandating sanction in terms of S. 197 of the Code.\n4.  It is pointed out that the mala fide intention is clear as all these cases were registered at Mohali Police Station which was declared to be the police station for the purpose of investigation of the concerned cases and new Court was established for the trial of the concerned cases and jurisdiction was conferred on one officer without following the process of consultation with the High Court. These are indicative of the fact that action was taken with mala fide intention only to harass the accused persons as noted above.\n5.  Learned counsel for the respondents on the other hand submitted that the decision in R.S. Nayak's case 1984 Indlaw SC 338 (supra) correctly lays down the position. Several attempts were made in the past to distinguish said case and to propound that the said decision did not indicate the correct position in law. The allegations of mala fide are clearly unfounded. No new court was established and in fact Special Judge of Special Court who was appointed to have consultation with the High Court was only designated to hear the cases. In fact for the sake of convenience these cases having link with each other can be disposed of early if they are taken up together by one Court.\n6.  In essence, it is submitted that the decision in R.S. Nayak's case 1984 Indlaw SC 338 (supra) is not per incuriam as contended. Under S. 19(1) of the Act previous sanction is prescribed for a public servant if (a) he is a public servant at the time of taking cognizance of the offence and (b) the accused continues to hold office alleged to have been mis-used at the time of taking cognizance of the offence by the Court. This is the view expressed in R. S. Nayak's case 1984 Indlaw SC 338 (supra).\n7.  S. 6 of the Old Act and S. 19 of the Act read as follows:\n\"6. Power to try summarily:- (1) Where a special Judge tries any offence specified in sub-s. (1) of section 3, alleged to have been committed by a public servant in relation to the contravention of any special order referred to in sub-s. (1) of s. 12 A of the Essential Commodities Act, 1955 (10 of 1955) or of an order referred to in cl. (a) of sub-s. (2) of that section, then, notwithstanding anything contained in sub-s. (1) of s. 5 of this Act or s. 260 of the Code of Criminal Procedure, 1973 (2 of 1974), the special Judge shall try the offence in a summary way, and the provisions of ss. 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:\nProvided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the special Judge to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the special Judge that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the special Judge shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or re-hear the ease in accordance with the procedure prescribed by the said Code for the trial of warrant cases by Magistrates. (2) Notwithstanding anything to the contrary contained in this Act or in the Code of Criminal Procedure, 1973 (2 of 1974), there shall he no appeal by a convicted person in any case tried summarily under this section in which the special Judge passes a sentence of imprisonment not exceeding one month, and of fine not exceeding two thousand rupees whether or not any order u/s. 452 of the said Code is made in addition to such sentence, but an appeal shall lie where any sentence in excess of the aforesaid limits is passed by a special Judge. 19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -\n(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;\n(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;\n(c) in the case of any other person, of the authority competent to remove him from his office.\n(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-s. (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.\n(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -\n(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;\n(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;\n(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-s. (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.\nExplanation.- For the purposes of this section,-\n(a) error includes competency of the authority to grant sanction;\n(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.\"\n8.  IPC provided for offences by or relating to public servants under Chapter IX including Ss. 161 to 165A. the Old Act was enacted on 12.3.1947, with the object of making provisions for the prevention of bribery and corruption more effective. In 1952 a Committee headed by Dr. Bakshi Tek Chand was constituted. The said Committee examined the true intent and purpose of S. 6 of the Old Act. It was inter alia noted by the Committee as follows:\n\"S. 6 of the Act prescribes that no prosecution u/s. 5(2) is to be instituted without the previous sanction of the authority competent to remove the accused officer from his office. The exact implications of this provisions have on occasions given rise to a certain amount of difficulty. There have been cases where an offence has been disclosed after the officer concerned has ceased to hold office, e.g., by retirement. In such cases it is not entirely clear whether any sanction is at all necessary. Another aspect of the same problem is presented by the type of case which, we are told, is fairly common-where an officer is transferred from one jurisdiction to another or an officer who is lent to another Department, commits an offence while serving in his temporary office and then returns to his parent Department before the offence is brought to light. In a case of this nature doubts have arisen as to the identity of the authority from whom sanction for prosecution is to be sought. In our opinion there should be an unambiguous provision in the law under which the appropriate authority for according sanction is to be determined on the basis of competence to remove the accused public servant from office at the time when the offence is alleged to have been committed.\"\n9.  The Law Commission of India in its 41st Report recommended amendment to S. 197 of the Code suggesting to grant protection of previous sanction to a public servant who is or was a public servant at the time of cognizance. Following the report of the Law Commission of India, S. 197 of the Code was amended in 1969. the Act was enacted on 9.9.1988 and the Statement of Objects and Reasons indicated widening of the scope of the definition of \"public servant\" and the incorporation of offences already covered under Ss. 161 to 165A of the IPC in the Act. New S. 19 as was enacted virtually the same as s. 6 of the Old Act. Earlier to R.S. Nayak's case 1984 Indlaw SC 338 (supra) this Court had occasion to deal with the issues in S. A. Venkataraman v. State (AIR 1958 SC 107 1957 Indlaw SC 139). In para 15 it was stated as follows :\n\"There is nothing in the words used in S. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the Court was asked to take cognizance, although he had been such a person at the time the offence was committed........ A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority...... \"\n10.  Following the decision rendered in Venkataraman's case 1957 Indlaw SC 139 (supra) and C.R. Bansi v. State of Maharashtra (1970(3) SCC 537 1970 Indlaw SC 198) the High Court accepted the view of learned trial Judge and declined relief as noted above.\n11.  The use of the expression \"is\" in S. 19 of the Act vis- '-vis the expression \"is\" or \"was\" is indicative of the legislative intent. Though certain changes were made in the Code no corresponding change was made in the Act.\n12.  Mr. P.P. Rao, learned senior counsel for the appellants in connected case contended that this was a case of casus omissus. The discussions indicate that the reports of Dr. Bakshi Tek Chand and of the Law Commission of India were to be accepted so far as they relate to covering the ex public servants. This plea shall be dealt with in the cases separately.\n13.  In reply, learned counsel for the respondents submitted that much before R.S. Nayak's case 1984 Indlaw SC 338 (supra) this Court in C.R. Bansi's case 1970 Indlaw SC 198 (supra) held as follows:\n\"But if a person ceases to be a public servant the question of harassment does not arise. The fact that an appeal is pending does not make him a public servant. The appellant ceased to be a public servant when the order of dismissal was passed. There is no force in the contention of the learned counsel and the trial cannot be held to be bad for lack of sanction under S. 6 of the Act.\"\n14.  It is their stand that where the public servant has ceased to be a public servant in one capacity by ceasing to hold office which is alleged to have been misused, the fortuitous circumstance of the accused being in another capacity holding an entirely different public office is irrelevant. It was categorically held in R. S. Nayak's case 1984 Indlaw SC 338 (supra) in para 17 that \"on analysis of the policy of the whole section the authority competent to remove the public servant from the office alleged to have mis-used is alone the competent sanctioning authority.\"\nIn that case, it was inter alia, held as follows:\n\"S. 5 of the 1947 Act defines the offence of criminal misconduct and a public servant who commits an offence of criminal misconduct is liable to be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. S. 6 provides for a sanction as a precondition for a valid prosecution for offences punishable under Sections 161, 164, 165 IPC and S. 5 of the 1947 Act. It reads as under:\n6. (1) No court shall take cognizance of an offence punishable u/s. 161 or S. 165 of the Indian Penal Code, or under sub-s. (2) of S. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction,\n(a) in the case of a person who is employed in connection with affairs of the Union and is not removable from his office save by or with the sanction of the Central Government,\n(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government,\n(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-s. (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.\nXx xx xx xx\nS. 6 bars the court from taking cognizance of the offences therein enumerated alleged to have been committed by a public servant except with the previous sanction of the competent authority empowered to grant the requisite sanction. S. 8 of 1952 Act prescribes procedure and powers of Special Judge empowered to try offences set out in S. 6 of 1947 Act. Construction of S. 8 has been a subject to vigorous debate in the cognate appeal. In this appeal we will proceed on the assumption that a Special Judge Can take cognizance of offences he is competent to try on a private complaint. S. 6 creates a bar to the court from taking cognizance of offences therein enumerated except with the previous sanction of the authority set out in clauses (a), (b) and (c) of sub-s. (1). The object underlying such provision was to save the public servant from the harassment of frivolous or unsubstantiated allegations. The policy underlying S. 6 and similar sections, is that there should not be unnecessary harassment of public servant. (See C.R. Bansi V. State of Maharashtra (1971 (3) SCR 236 1970 Indlaw SC 198). Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and S. 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under S. 6 has been held to be a trial without jurisdiction by the court. (See R.R. Chari v. State of U.P. (1963) 1 SCR 121 1962 Indlaw SC 158) and S.N. Bose v. State of Bihar (1968 (3) SCR 563 1968 Indlaw SC 41) In Mohd. Iqbal Ahmad v. State of A P. (1979(2) SCR 1007 1979 Indlaw SC 592) it was held that a trial without a sanction renders the proceedings ab initio void. But the terminus a quo for a valid sanction is the time when the court is called upon to take cognizance of the offence. If therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be a public servant, no sanction would he necessary for taking cognizance of the offence against him. This approach is in accord with the policy underlying S. 6 in that a public servant is not to be exposed to harassment of a frivolous or speculative prosecution. If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist. As a necessary corollary, if the accused has ceased to be a public servant at the time when the court is called upon to take cognizance of the offence alleged to have been committed by him as public servant, S. 6 is not attracted. This aspect is no more res integra. In S.A. Venkataraman v. State (1958 SCR 1040 1957 Indlaw SC 139) this Court held as under:\nIn our opinion, in giving effect to the ordinary meaning of the words used in S. 6 of the Act, the conclusion is inevitable that at the time a court is asked to take cognizance not only the offence must have been committed by a public servant but the person accused is still a public servant removable from his office by a competent authority before the provisions of S. 6 can apply. In the present appeals, admittedly, the appellants had ceased to be public servants at the time the court took cognizance of the offences alleged to have been committed by them as public servants. Accordingly, the provisions of S. 6 of the Act did not apply and the prosecution against them was not vitiated by the lack of a previous sanction by a competent authority.\nAnd this view has been consistently followed in C.R. Bansi case and K.S. Dharmadatan v. Central Government (1979 (3) SCR 832 1979 Indlaw SC 53). It therefore appears well settled that the relevant date with reference to which a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by S. 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused.\n(underlined for emphasis)\nXx xx xx\nOffences prescribed in Sections 161, 164 and 165 IPC and S. 5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant. A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an individual person. In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office or power flowing from the status. The holder of the office alone would have opportunity to abuse or misuse the office. These sections codify a well-recognised truism that power has the tendency to corrupt. It is the holding of the office which gives an opportunity to use it for corrupt motives.\nTherefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This interrelation and interdependence between individual and the office he holds is substantial and not severable. Each of the three clauses of subs. (1) of S. 6 uses the expression office' and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and S. 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office.\nTherefore, when a public servant is accused of an offence of taking gratification other than legal remuneration for cluing or forbearing to do an official act (S. 161 IPC) or as a public servant abets offences punishable under Ss. 161 and 163 (S. 164 IPC) or as public servant obtains a valuable thing without consideration from person concerned in any proceeding or business transacted by such public servant (S. 165 IPC) or commits criminal misconduct as defined in S. 5 of the 1947 Act, it is implicit in the various offences that the public servant has misused or abused the power of office held by him as public servant. The expression 'office' In the three sub-clauses of S. 6(1) would clearly denote that office which the public servant misused or abused for corrupt motives for which he is to the prosecuted and in respect of which a sanction to prosecute him is necessary by the competent authority entitled to remove him from that office which he has abused. This interrelation between the office and its abuse if severed would render S. 6 devoid of any meaning. And this interrelation clearly provides a clue to the understanding of the provision in S. 6 providing for sanction by a competent authority who would be able to judge the Action of the public servant before removing the bar, by granting sanction, to the taking of the cognizance of offences by the court against the public servant.\nTherefore, it unquestionably follows that the sanction to prosecute can he given by an authority competent to remove the public servant from the office which he has misused or abused because that authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of A.P.) (1979 (2) SCR 1007 1979 Indlaw SC 592). The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him, to fudge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would he in a position to know what was the power conferred on the office which the public servant holds, how that power could he abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office he by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference o knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant', sanction which is entitled to remove the public servant against whom sanction is sought from the office.\nNow if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to use. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned Counsel that a Minister who is indisputably a public servant greased his palms by abusing his office as Minister, and then ceased to hold the office before the court was called upon to take cognizance of the offence against him and therefore, sanction as contemplated by S. 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant Municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was- in affirmative.\nBut the very illustration would show that such cannot be the law. Such an interpretation of S. 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. Ode can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant u/s. 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant/while abusing one office which he may have ceased to hold. Such an interpretation in contrary to all canons of construction and leads to an absurd and product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as a rougue's charter. (See Davis & Sons Ltd. v. Atkins [1977] Imperial Court Reports, 662)\nxx xx xx\nTherefore upon a true construction of Section 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him\".\n15.  Para 22of the said judgment is also of considerable importance. It reads as follows:\n\"Re. (a) The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self-defeating. The court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act, namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it.\"\n16.  As is clear from a bare reading of the paragraph, this Court adopted a construction which is based on the avoidance of mischief rule. That being so, the plea that the effect of S. 6(2) of the Old Act was not kept in view does not merit acceptance. Though a mere reference to a provision in all cases may not in all cases imply consciousness as to the effect of that provision the case at hand does not fall to that category. In this case not only was there reference to that provision, but also this Court adopted a construction which kept in view the object of the statute and the need for interpretation in a particular way. Foundation for the interpretation is found in para 28 of the judgment. With reference to Davis & Sons Ltd. v. Atkins (1977 Imperial Court Report 662) it was held that legislation must at all costs be interpreted in such a way that it would not operate as a rogue's charter.\n17.  In Habibulla Khan v. State of Orissa and Anr. (1995 (2) SCC 437 1995 Indlaw SC 1517) it was held was as follows :\n\"However, it was contended that while the Governor had given sanction to prosecute the Chief Minister when he continued to be an MLA in the case of R.S. Nayak v. A.R. Antulay 1984 Indlaw SC 338, the question whether the sanction was necessary to prosecute an MLA as a public servant did not arise. It was, therefore, contended that although the offence alleged to have been committed was during the appellants' tenure as Ministers, the appellants continued to be MLAs and, therefore, as public servants on the day of the launching of prosecution and hence sanction of the Governor u/art. 192 of the Constitution was necessary. This question has also been answered in R.S. Nayak v. A.R. Antulay 1984 Indlaw SC 338. Referring to this Court's decision in State (S.P.E., Hyderabad) v. Air Commodore Kailash Chand 1979 Indlaw SC 111 this Court held : :\n\"We would however, like to make it abundantly clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which he is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of S. 6. Therefore, upon a true construction of Section 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him.\"\n18.  The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.\n19.  In other words, where the Act performed under the colour of office is for the benefit of the officer or for his own pleasure S. 19(1) will come in. Therefore, S. 19(1) is time and offence related.\n20.  This Court in Shreekantiah Ramayya Munipalli v. The State of Bombay reported in (1955 (1) SCR 1177 1954 Indlaw SC 175 at pages1186-1187) held as follows:\n\"We have therefore first to concentrate on the word \"offence\".\nNow an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an \"entrustment\" and/or \"dominion\"; second, that the entrustment and/or dominion was \"in his capacity as a public servant\"; third, that there was a \"disposal\"; and fourth, that the disposal was \"dishonest\". Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the Act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the Act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the Act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done : in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.\nthe Act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus \"wilfully suffer\" another person to use them dishonestly : s. 405 of the Indian Penal Code. In both cases, the \"offence\" in his case would be incomplete without proving the official act.\" (underlined for emphasis)\n21.  The main contention advanced by Shri Venugopal Learned senior counsel appearing for the appellant is that a public servant who continues to remain so (on transfer) has got to be protected as long as he continues to hold his office. According to the learned counsel, even if the offending act is committed by a public servant in his former capacity and even if such a public servant has not abused his subsequent office still such a public servant needs protection of S. 19(1) of the Act. According to the learned counsel, the judgment of this Court in R.S. Nayak's case 1984 Indlaw SC 338 (supra) holding that the subsequent position of the public servant to be unprotected was erroneous. According to the learned counsel, the public servant needs protection all throughout as long as he continues to be in the employment.\n22.  The plea is clearly untenable as S. 19(1) of the Act is time and offence related.\nS. 19(1) of the Act has been quoted above.\n23.  The underlying principle of Sections 7, 10, 11, 13 and 15 have been noted above. Each of the above Sections indicate that the public servant taking gratification (S.7), obtaining valuable thing without consideration (S.11), committing acts of criminal misconduct (S.13) are acts performed under the colour of authority but which in reality are for the public servant's own pleasure or benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts. Therefore, if a public servant in his subsequent position is not accused of any such criminal acts then there is no question of invoking the mischief rule. Protection to public servants under S. 19(1)(a) has to be confined to the time related criminal acts performed under the colour or authority for public servant's own pleasure or benefit as categorized under Sections 7, 10, 11, 13 and 15. This is the principle behind the test propounded by this court, namely, the test of abuse of office. Further, in cases where offences under the Act are concerned the effect of S. 19 dealing with question of prejudice has also to be noted.\n24.  In Balakrishnan Ravi Menon v. Union of India 2002 Indlaw SC 2306 (SLP (Crl.) No.3960 of 2002 decided on 17.9.2002) a similar plea was rejected. It was inter alia held as follows:\n\"Hence, it is difficult to accept the contention raised by U.R. Lalit, the learned senior counsel for the petitioner that the aforesaid finding given by this Court in Antulay's case 1984 Indlaw SC 338 is obiter. Further, under S. 19 of the PC Act, sanction is to be given by the Government or the authority which would have been competent to remove the public servant from his office at the time when offence was alleged to have been committed. The question of obtaining sanction would arise in a case where the offence has been committed by a public servant who is holding the office and by misusing or abusing the powers of the office, he has committed the offence. The word 'office' repeatedly used in S. 19 would mean the 'office' which the public servant misuses or abuses by corrupt motive for which he is to be prosecuted.\nCls. (a) and (b) of sub-s. (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, sanction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words \"who is employed\" in connected with the affairs of the Union or the State Government. If he is not employed then S. 19 nowhere provides for obtaining such sanction. Further, under sub-s. (2) the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. In case where the person is not holding the said office as he might have retired, superannuated, discharged or dismissed then the question of removing would not arise.\"\n25.  The effect of sub-ss. (3) and (4) of S. 19 of the Act are of considerable significance. In Sub-S. (3) the stress is on \"failure of justice\" and that too \"in the opinion of the Court\". In sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the \"failure of justice\" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby. S. 19(1) is a matter of procedure and does not go to root of jurisdiction as observed in para 95 of the Narasimha Rao's case (supra). Sub-s. (3)(c) of S. 19 reduces the rigour of prohibition. In S. 6(2) of the Old Act (S. 19(2) of the Act) question relates to doubt about authority to grant sanction and not whether sanction is necessary.\nIn Halsbury's Laws of England, 4th Edn., Vol.26 it is stated:\n\"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force.\"\n26.  In Govt. of A.P. v. B. Satyanarayana Rao (2000 (4) SCC 262 2000 Indlaw SC 318) it has been held as follows :\n\"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.\"\n\"Incuria\" literally means \"carelessness\". In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The \"quotable in law\" as held in Young v. Bristol Aeroplane Co. Ltd. (1944 (2) All ER 293) is avoided and ignored if it is rendered \"in ignoratium of a statute or other binding authority\". Same has been accepted, approved and adopted by this Court while interpreting Art. 141 of the Constitution which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd. (1991 (4) SCC 139 1991 Indlaw SC 702). To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.\n27.  The above position was highlighted in Babu Parasu Kaikadi (dead) by Lrs. v. Babu (dead) thr. Lrs. (2004 (1) SCC 681 2003 Indlaw SC 1124 and Sunita Devi v. State of Bihar and Anr. (2005 (1) SCC 608 2004 Indlaw SC 1553)\n28.  As regards applicability of S. 197 of the Code, the position in law has been elaborately dealt with in several cases.\n29.  In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257 1987 Indlaw SC 28505), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-\n\"It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that S. 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the Acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.\"\n30. The protection given under S. 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the Act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection.\nThe question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before S. 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the Act, because the Act can be performed both in the discharge of the official duty as well as in dereliction of it. the Act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the Act which is important and the protection of this section is available if the Act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the Act done and the official duty, nor is it possible to lay down any such rule. This aspect makes it clear that the concept of S. 197 does not immediately get attracted on institution of the complaint case.\n31.  At this juncture, we may refer to P. Arulswami v. State of Madras (AIR 1967 SC 776 1966 Indlaw SC 65), wherein this Court held as under:\n\"It is not therefore every offence committed by a public servant that requires sanction for prosecution u/s. 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the Act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the Act that is important and if it falls within the scope and range of his official duties the protection contemplated by S. 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.\"\nS. 197(1) and (2) of the Code reads as under :\n\"197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -\n(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;\n(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.\n(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.\"\n32.  The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by S. 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence, by any court, is barred by S. 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty.\nThe section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means 'taking notice of'. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.\n33.  Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar (1979 (4) SCC 177 1979 Indlaw SC 215), it was held :\n\"The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in S. 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of S. 197 (1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.\"\n34.  Use of the expression, 'official duty' implies that the Act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.\n35.  It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the Act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under S. 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44 1955 Indlaw SC 44) thus:\n\"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty ... there must be a reasonable connection between the Act and the discharge of official duty; the Act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.\"\n36.  If on facts, therefore, it is prima facie found that the Act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of S. 197 of the Code cannot be disputed.\n37.  The above position was highlighted in State of H.P. v. M.P. Gupta (2004 (2) SCC 349 2003 Indlaw SC 1126), State of orissa through Kumar Raghvendra Singh & Ors. v. Ganesh Chandra Jew (JT 2004(4) SC 52 2004 Indlaw SC 218), Shri S.K. Zutshi and Anr. v. Shri Bimal Debnath and Anr. (JT 2004(6) SC 323 2004 Indlaw SC 594), K. Kalimuthu v. State by DSP (2005 (4) SCC 512 2005 Indlaw SC 773) and Rakesh Kumar Mishra v. The State of Bihar and Anr. (2006 (1) SCC 557 2006 Indlaw SC 589).\nIn Rakesh Kumar Mishra's case (supra) it was inter alia observed as follows:\n\"In S. A. Venkataraman v. The State (AIR 1958 SC 107 1957 Indlaw SC 139) and in C. R. Bansi v. The State of Maharashtra (1970 (3) SCC 537 1970 Indlaw SC 198) this Court has held that:\n\"There is nothing in the words used in S. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed.\"\nWhen the newly-worded section appeared in the Code (S. 197) with the words \"when any person who is or was a public servant\" (as against the truncated expression in the corresponding provision of the old Code of Criminal Procedure, 1898) a contention was raised before this Court in Kalicharan Mahapatra v. State of Orissa (1998 (6) SCC 411 1998 Indlaw SC 907) that the legal position must be treated as changed even in regard to offences under the Old Act and New Act also. The said contention was, however, repelled by this Court wherein a two-Judge Bench has held thus:\n\"A public servant who committed an offence mentioned in the Act, while he was a public servant, can be prosecuted with the sanction contemplated in S. 197 of the Act if he continues to be a public servant when the court takes cognizance of the offence. But if he ceases to be a public servant by that time, the court can take cognizance of the offence without any such sanction.\"\nThe correct legal position, therefore, is that an accused facing prosecution for offences under the Old Act or New Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where S. 197 of the Code has application.\nS. 197(1) provides that when any person who is or was a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government and (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government.\nWe may mention that the Law Commission in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed:\n\"it appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by S. 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant\".\nIt was in pursuance of this observation that the expression 'was' come to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted.\"\n38.  In P.K. Pradhan v. State of Sikkim (2001 (6) SCC 704 2001 Indlaw SC 20078) it has, inter alia, held as follows:\n\"The legislative mandate engrafted in sub-s. (1) of S. 197 debarring a court from taking cognizance of concerned in a case where the Acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is prohibition imposed by the Statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in S. 197 of the Code: \"any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.\" The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the Act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the Act and the official duty. It does not matter even if the Act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the Act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly I excess of the needs and requirements of the situation.\"\n39.  The question relating to the need of sanction under S. 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.\n40.  So far as the question about the non application of mind in the sanction or absence of sanction is concerned, this has been answered in the first question i.e. where the public servant has ceased to be a public servant since he has ceased to hold the office where the alleged offence is supposed to have been taken place, the other questions really become academic.\n41.  A plea has been taken that charge sheet is a bundle of confusions and no definite material is placed on record to substantiate the allegation of commission of any offence. This assertion has been refuted by learned counsel for the respondent-State with regard to various definite materials indicating commission of offence. Particular reference has been made to the following:\n42.  Pages 396-397, Volume 3 discloses how Rs.9 crores were recycled by Badal family through the accounts of K.S. Siddhu into the project ORBIT Resort.\n43.  Pages 398-399, 404-407, 416-420, 448 establishes facts showing recycling of several crores of rupees with the aid of Narottam Singh Dhillon, an NRI and close to Badal family. Illegally earned money used to be deposited in the account of Narottam Singh Dhillon who used to then get FDRs issued and thereafter used to take loans against the FDRs. His bank account shows operation during 1997-2002. This loan money has been given to Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal as loans which have never been returned. This recyling involved making of fake entries in the bank. There is evidence showing taking of gratification in transfers, postings and promotions.\n44.  Pages 430-434 show purchases of property and shares in the name of Satnam Singh and Namta Singh who were close to Badal family and the transfer of their interest to SB in the year 2001.\n45.  Pages 489-494: Evidence collected shows amassing of benami property in the name of Shri Harbans Lal and his family members who are close to Badal family.\n46.  Pages 499-502: reveals routing of black money into the transport companies being run by the Badal family.\n47.  Pages 553-566 present a detailed analysis of the assets of Badal family generated during the check period. Total disproportionate asset is to the tune of Rs.78.39 crores. But disproportion could not be explained. Present market worth is over Rs.500 crores.\n48.  At pages 571-580 there is evidence to show flow of money from abroad.\n49.  At page 582, it is specifically concluded that Parkash Singh Badal colluded with his wife and son and other persons and committed corruption at large scale and huge wealth and money was amazed which is more than their disclosed income.\n50.  Page 611 onwards relates to only of the income and wealth tax returns of Badal family during the check period. Thus all relevant facts disclosing the offences committed by Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal in collusion with each other and with other persons is clearly set out in the charge sheet and the same was submitted to the Speaker along with relevant materials. The charge sheet is neither jumbled nor unclear and sanctioning authority applies his mind.\n51.  As regards the plea relating to non-definite offence, a few provisions of the Code need to be noted. Sections 173, 215 and 220 reads as follows:\n\"173. Report of police officer on completion of investigation.- (1) Every investigation under this Chapter shall be completed without unnecessary delay.\n(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-\n(a) the names of the parties;\n(b) the nature of the information;\n(c) the names of the persons who appear to be acquainted with the circumstances of the case;\n(d) whether any offence appears to have been committed and, if so, by whom;\n(e) whether the accused has been arrested;\n(f) whether he has been released on his bond and, if so, whether with or without sureties;\n(g) whether he has been forwarded in custody u/s. 170.\n(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the Action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.\n(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.\n(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.\n(5) When such report is in respect of a case to which s. 170 applies, the police officer shall forward to the Magistrate along with the report-\n(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;\n(b) the statements recorded u/s. 161 of all the persons whom the prosecution proposes to examine as its witnesses.\n(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.\n(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-s. (5).\n(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-s. (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding, such evidence in the form prescribed; and the provisions of sub-ss. (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-s. (2).\n215. Effect of errors.- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.\n220. Trial for more than one offence.- (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.\n(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of properly as provided in sub-s. (2) of s. 212 or in sub-s. (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.\n(3) If the Acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.\n(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.\n(5) Nothing contained in this section shall affect s. 71 of the Indian Penal Code (45 of 1860).\nS. 72 IPC is also relevant. Same reads as follows:\n\"72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which.--In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences, he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all\".\nThe report in terms of S. 173 of the Code is in the nature of information to the Magistrate. Statutory requirement is complied with if the requisite information is given. It purports to be an opinion and therefore elaborate details are not necessary. In K. Veeraswami v. Union of India and Ors. (1991 (3) SCC 655 1991 Indlaw SC 711) it was held as follows: \"The charge sheet is nothing but a final report of police officer u/s. 173(2) of the Cr.P.C. The S. 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody u/s. 170. As observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar (1980 (3) SCC 152 1979 Indlaw SC 363); that the statutory requirement of the report u/s. 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report u/s. 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by S. 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence.\"\n52.  Mere non-description of the offences in detail is really not material. At the stage of framing charge it can be urged that no offence is made out.\n53.  With reference to the absence of allegations u/ss. 8 and 9 of the Act, it is submitted whether the charge sheet has reference to any particular material referred to in it and the relevance of it is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the Court is primarily concerned with the question as to whether charge is to be framed in respect of any offence and whether there prima facie appears existence of any material and not the sufficiency of the materials. Therefore, the appellants' stand that the charge sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by learned counsel for the respondent-State.\n54.  It is the stand of the State that the appellant-Parkash Singh Badal was the fulcrum around which the entire corruption was woven by the members of his family and others and it was his office of Chief Minister-ship which had been abused. Therefore, Ss. 8 and 9 of the Act would not be applicable to him and would apply only to his wife, son and others. It is the stand of the appellants that in the documents filed only S. 13(1) has been only mentioned and not the exact alleged infraction. It is to be noted that the offence of criminal mis-conduct is defined in S. 13. Five clauses contained in the said provision represent different types of infraction under which the offence can be said to have been committed. If there is material to show that the alleged offence falls in any of the aforesaid categories, it is not necessary at the stage of filing of the charge sheet to specify as to which particular clause covers the alleged offence. It is the stand of the respondent-State that clauses (a), (b) (d) and (e) are all attracted and not cl. (c). Therefore, the sanctioning authority has rightly referred to S. 13(1) and that does not make the sanction order vulnerable.\n55.  The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard.\n56.  The sanction in the instant case related to offences relatable to Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.\n57.  Great emphasis has been led on certain decisions of this Court to show that even in relation to offences punishable u/s. 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra's case (supra). That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.\n58.  The offence of cheating u/s. 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.\n59.  In Baijnath v. State of M.P. (1966 SCR 210 1965 Indlaw SC 455) the position was succinctly stated as follows:\n\"it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by S. 197 of the Code of Criminal Procedure will be attracted.\"\n60.  So far as the appellant Sukhbir Singh Badal is concerned, the stand is that he being a member of the Parliament is a public servant and cannot be charged with offences u/ss. 8 and 9 of the Act. His contention is that Sections 8, 9, 12, 14 and 24 of the Act are applicable to private persons and not to public servants. The opening word of Ss. 8 and 9 is \"whoever\". The expression is very wide and would also cover public servants accepting gratification as a motive or reward for inducing any other public servant by corrupt or illegal means. Restricting the operation of the expression by curtailing the ambit of Ss. 8 and 9 and confining to private persons would not reflect the Actual legislative intention.\n61.  If S. 8 is analytically dissected then it would read as below:\n(i) Whoever\n(ii) Accepts or obtains gratification from any person\n(iii) For inducing any public servant (by corrupt or illegal means)\n(iv) To render or attempt to render any services or disservice (etc.)\n(v) With any public servant (etc.)\n62.  So far as S. 9 is concerned the only difference is that inducement is \"by the exercise of personal influence\". The above analysis shows that public servants may be involved. Ss. 8 and 9 of the Act correspond to Ss. 162 and 163 of IPC. During the currency of Old Act, Ss. 161 to 165A of IPC were operating. This Court had occasion to examine S. 5(1)(d) of the Old Act and Ss. 161 and 162 IPC. It has been held that they constitute different offences. [See Ram Krishan and Anr. v. State of Delhi (AIR 1956 SC 476 1956 Indlaw SC 134)] In view of the above, it would not be permissible to contend that a public servant would be covered by S. 13(1)(d) (similar to s. 5(1)(d) of Old Act) and therefore the public servant would not be covered by Ss. 8 and 9 of the Act. The offences under S. 13(1)(d) and the offences u/ss. 8 and 9 of Act are different and separate. Assuming, S. 13(1)(d)(i) covers public servants who obtain for 'himself or for any other person' any valuable thing or pecuniary advantage by corrupt or illegal means, that would not mean that he would not fall within the scope of Ss. 8 and 9. The ingredients are different. If a public servant accepts gratification for inducing any public servant to do or to forbear to do any official act, etc. then he would fall in the net of Ss. 8 and 9. In S. 13(1)(d) it is not necessary to prove that any valuable thing or pecuniary advantage has been obtained for inducing any public servant.\n63.  Another difference is that S. 13(1)(d) envisages obtaining of any valuable thing or pecuniary advantage. On the other hand Ss. 8 and 9 are much wider and envisages taking of \"any gratification whatever\". Explanation (b) of S. 7 is also relevant.\n64.  The word 'gratification' is not restricted to pecuniary gratifications or to gratifications estimable in money. Thus, Ss. 8 and 9 are wider than S. 13(1)(d) and clearly constitute different offences.\n65.  S. 24 envisages the making of a statement by a person in any proceeding against the public servant for an offence u/ss. 7 to 11 or Ss. 13 and 15. It is clear from S. 24 that there can be a proceeding against public servant for which offence u/ss. 7 to 11 which per se includes Ss. 8 and 9. On the face of this provision, it cannot be contended that a public servant cannot be proceeded against Ss. 8 and 9.\n66.  Great emphasis has been led by the appellants on some factual scenario to show that the complainant was close to incumbent Chief Minister and he has been rewarded subsequently for making the complaint. In essence, the plea is that mala fides are involved. This allegation of mala fides is also linked with the so called conferment of power with the particular police station at Mohali and conferment of jurisdiction on a particular Special Judge by Notification dated 17.11.2003.\n67.  A plea of mala fides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegation and suspicions would not be sufficient. The person against whom mala fides conduct is attributed is interestingly not a party in the proceedings.\n68.  So far as the allegation that political opponent had lodged the complaint is concerned, that itself is not sufficient for the Court to interfere. When the allegation is made, investigation is undertaken to find out whether there is any substance in the allegation. Merely because the political opponent was the complainant that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof.\n69.  Before dealing further whether the submissions ought to prevail, the legal principles governing the registration of a cognizable offence and the investigation arising thereon need to be noted. S. 154(1) is the relevant provision regarding the registration of a cognizable offence and that provision reads as follows:\n\"154. Information in cognizable cases.-(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in his behalf\".\n70.  The above sub-section corresponds to S. 154 of the Old Code (Act of 1898 to which various amendments were made by Act 26 of 1955 and also to S. 154 of the Code of Criminal Procedure of 1882 (Act 10 of 1882) except for the slight variation in that expression 'local government' had been used in 1882 in the place of 'State Government'. Presently, on the recommendations of the Forty-first Report of the Law Commission, the sub-ss. (2) and (3) have been newly added but we are not concerned with those provisions as they are not relevant for the purpose of the disposal of this case except for making some reference at the appropriate places, if necessitated. S. 154(1) regulates the manner of recording the first information report relating to the commission of a cognizable offence.\n71.  The legal mandate enshrined in S. 154 (1) is that every information relating to the commission of a 'cognizable offence' (as defined u/s. 2 (c) of the Code) if given orally ( in which case it is to be reduced into writing) or in writing to \"an officer incharge of a police station\" (within the meaning of S. 2(o) of the Code) and signed by the informant should be entered in a book to be kept by such officer in such form as the State Government may prescribe which form is commonly called as \"First Information Report\" and which act of entering the information in the said form is known as registration of a crime or a case.\n72.  At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of S. 154 (1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered u/s. 156 of the Code to investigate, subject to the proviso to S. 157 thereof.\nIn case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-s. (3) of S. 154 of the Code.\n73.  It has to be noted that in S. 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression \"information\" without qualifying the same as in S. 41(1)(a) or (g) of the Code wherein the expressions, \"reasonable complaint\" and \"credible information\" are used. Evidently, the non-qualification of the word \"information\" in S. 154(1) unlike in S. 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case.\nA comparison of the present S. 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word \"information\" without qualifying the said word. S. 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer incharge of a police station should be reduced into writing which provision was subsequently modified by S. 112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an officer incharge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the Code. An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.\n74.  It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer incharge of a police station satisfying the requirements of S. 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.\n75.  In this connection, it may be noted that though a police officer cannot investigate a non-cognizable offence on his own as in the case of cognizable offence, he can investigate a non- cognizable offence under the order of a Magistrate having power to try such non-cognizable case or commit the same for trial within the terms u/s. 155(2) of the Code but subject to S. 155(3) of the Code. Further, under subs. (4) to Section 155, where a case relates to two offences to which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officer can investigate such offences with the same powers as he has while investigating a cognizable offence.\n76.  The next key question that arises for consideration is whether the registration of a criminal case under S. 154(1) of the Code ipso facto warrants the setting in motion of an investigation under Chapter XII of the Code.\n77.  S. 157(1) requires an Officer Incharge of a Police Station who 'from information received or otherwise' has reason to suspect the commission of an offence-that is a cognizable offence-which he is empowered to investigate under Section 156, to forthwith send a report to a Magistrate empowered to take cognizance of such offence upon a police report and to either proceed in person or depute any one of his subordinate Officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. This provision is qualified by a proviso which is in two parts (a) and (b). As per Cl. (a) the Officer Incharge of a Police Station need not proceed in person or depute a subordinate officer to make an investigation on the spot if the information as to the commission of any such offence is given against any person by name and the case is not of a serious nature.\nAccording to Clause (b), if it appears to the Officer Incharge of a Police Station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Sub-s. (2) of S. 157 demands that in each of the cases mentioned in Cls. (a) and (b) of the proviso to Sub-s. (1) of Section 157, the Officer Incharge of the Police Station must state in his report, required to be forwarded to the Magistrate his reasons for not fully complying with the requirements of Subs. (1) and when the police officer decides not to investigate the case for the reasons mentioned in Cl. (b) of the proviso, he in addition to his report to the Magistrate, must forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause the case to be investigated. S. 156(1) which is to be read in conjunction with S. 157(1) states that any Officer Incharge of a Police Station may without an order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of the concerned police station would have power to enquire into or try under provisions of Chapter XIII. S. 156(3) vests a discretionary power on a Magistrate empowered under S. 190 to order an investigation by a police officer as contemplated in S. 156(1). It is pertinent to note that this provision does not empower a Magistrate to stop an investigation undertaken by the police. (State of Bihar and Anr. v. J.A.C. Saldanha and Ors. (1980 (1) SCC 554 1979 Indlaw SC 344) In that case, power of the Magistrate under S. 156(3) to direct further investigation after submission of a report by the investigating officer u/s. 173(2) of the Code was dealt with. It was observed as follows:\n\"The power of the Magistrate under S. 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under S. 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in S. 173(8).\"\n78.  The above position has been highlighted in State of Haryana and Ors. v. Bhajan Lal and Ors. (1992 Supp (1) SCC 335 1990 Indlaw SC 91).\n79.  In State of Punjab and Anr. v Gurdial Singh and Ors. (1980 (2) SCC 471 1979 Indlaw SC 83) it was observed as follows:\n\"If the use of the power is for the fulfilment of a legitimate object the Actuation or catalysation by malice is not legicidal.\"\n80.  At this stage it needs to be clarified that the obligation to register a case is not to be confused with the remedy if same is not registered. Issue of the remedy has been decided by this Court in several cases. (See Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) SCC 768 2004 Indlaw SC 874)\n81.  The ultimate test therefore is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent or a person with political difference raises an allegation of commission of offence. Therefore, the plea of mala fides as raised cannot be maintained.\n82.  So far as conferment of jurisdiction with the police station over the whole State is concerned, it appears that the same was created on 31.10.1994 by the then Government of Chandigarh and by order dated 20.4.1995 the office of Superintendent of Police, Vigilance Flying Squad-I/Criminal Investigation Agency, Chandigarh was shifted to Police Station, Mohali. This order continued to operate subsequently. As rightly contended by learned counsel for the respondent- State, the fresh notification was issued creating some more police stations qua other districts. It is pointed out that PS Mohali falls within the Ropar district and within the area of Special Judge, Ropar as was specified in consultation with the Punjab and Haryana High Court. The Special Judges are transferred by the High Court and, therefore, the allegation of choosing any Special Judges with oblique motive is clearly without any substance. The notification regarding the reorganization of the police station with Police Station, Mohali having jurisdiction over the whole State of Punjab was notified on 19.12.2002.\n83.  At this juncture, it is relevant to note that allegations of impropriety were made because of the Notification dated 17.11.2003 relating to jurisdiction of the Special Judge. A few relevant aspects need to be noted at this juncture. The Court of Special Judge, Ropar was created by Notification dated 5.1.1990 of the State Government which was issued in consultation with the High Court for the area of Ropar District. Another Notification was issued on 5.9.2000 in consultation with the High Court. By this Notification, Sessions Judges in the State of Punjab were appointed as Special Judges within their respective districts. The Notification dated 31.10.1994 creating P.S., Chandigarh with Statewide jurisdiction which was shifted to P.S., Mohali by order dated 20.4.1995 was already in existence when Sessions Judges were made Special Judges. There is no dispute about this fact.\n84.  The controversy revolves around the Notification dated 19.10.2002 regarding P.S., Mohali with Statewide jurisdiction. According to learned counsel for the respondent-State it represents a continuity and there was no new creation. So far as the Notification dated 17.11.2003 is concerned, undisputedly, the expression used is \"appoint\". It was clarified that though the said expression has been used, it did not actually mean appointment of a Sessions Judge and First Additional Sessions Judge, Ropar as Special Judges. They were already appointed and designated as stated in the Notification itself. What was intended related to allocation of cases registered at P.S., Mohali to the existing Courts of Special Judges, Ropar. There is also no dispute that P.S., Mohali falls within the area of district Ropar over which Special Judges, Ropar had jurisdiction as approved by the High Court.\n85.  Stand of learned counsel for the State is that since the impugned notification allocated certain cases to Courts of Special Judges already established with the consultation with the High Court, no further consultation was required.\n86.  It is pointed out that said re-allocation does not impinge upon the control of the High Court as envisaged by Art. 235 of the Constitution.\n87.  There is no doubt that the control of the High Court is comprehensive, exclusive and effective and it is to subserve the basic feature of Constitution, i.e. independence of judici ary. [See High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr. (1998 (3) SCC 72 1998 Indlaw SC 161) and Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by Lrs. and Anr. (1999 (7) SCC 725 1999 Indlaw SC 711)]\n88.  Arts. 233 and 234 of the Constitution are not attracted because this is not a case where appointment of persons to be Special Judges or their postings to a particular Special Court is involved. It is however factually conceded that the expression \"notwithstanding the jurisdiction of other Special Judges in the State of Punjab\" is not necessary.\n89.  Once group of cases are allocated to Special Court, consequentially other Special Courts cannot deal with them. Use of the afore-said expression was really un-necessary. We consider it to be severable and so direct.\n90.  At this juncture, it is to be noted that learned counsel for the State submitted that to avoid any fear of forum shopping, the State is even willing to abide by the decision of this Court if the trial takes place in Chandigarh or wherever this Court directs, and to show that the State has no intention to the trial being conducted at a particular place and to prove its transparency the stand is taken. We do not think it necessary to so direct, because the expression \"notwithstanding the jurisdiction of other Special Judges in the State of Punjab\" has already been stated to be unnecessary and would be of no consequence. That being so, the plea in that regard as raised by the appellants also fails.\n91.  Since all the challenges have been held to be without substance, the inevitable result is that the appeals deserve to be dismissed which we direct.\nAppeals dismissed.\n"}
+{"id": "xG7YXipN2I", "title": "", "text": "Rajib Ranjan and others v R. Vijay Kumar\nSupreme Court of India\n\n14 October 2014\nCr.A. No(s). 729-732 of 2010\nThe Judgment was delivered by : Arjan Kumar Sikri, J.\n1. These appeals are filed by four appellants, who were arrayed as accused persons in the complaint case No.183/2007 filed by the respondent herein before the Court of Judicial Magistrate No.II, Tiruchirapalli, Tamil Nadu. The complaint has been filed under Sections 120-B, 468, 420 and 500 of the Indian Penal Code (for short 'the IPC'). The learned Judicial Magistrate took cognizance of the said complaint and summoned the appellants. The appellants (who were arrayed as accused Nos.3, 4, 5 and 6) challenged the said summoning orders and sought quashment of the complaint by filing petition u/s. 482 of the Code of Criminal Procedure (for short 'the Cr.P.C.) inasmuch as according to them the allegations in the complaint did not make out any offence under the aforesaid provisions of the IPC; the complainant had neither any locus standi nor any legal status to prefer any such complaint; the appellants being public servants and Gazetted officers of the State Government of Chhattisgarh, no such criminal proceedings could be initiated against them without prior sanction from the appointing authority as per S. 197 of the Cr.P.C.; and the complaint was blatant misuse and abuse of the process of Court which was filed by the complainant after exhausting the civil remedies in which he had failed. The High Court, after examination of the matter, has not found any merit in any of the aforesaid contentions raised by the appellants and, consequently, dismissed their petitions.\n2. Before we advert to the submissions of the appellants, which are mirror image of what was argued before the High Court, it would be appropriate to traverse through the relevant facts and events leading to the filing of the said complaint by the complainant. These are as under:\nThe Chhattisgarh State Electricity Board (for short 'the CSEB') issued an advertisement inviting tender (NIT) bearing No. T- 136/2004 dated 02.06.2004 for its work at Hasedeo Thermal Power Station (Korba West) towards Designing, Engineering, Testing, Supply, Erection & Commission of HEA Ignition system. The applications received there under were required to be processed in three stages successively namely; Part-I (EMD); Part-II (Techno- Commercial Criteria) and Part III (Price Bid). The respondent herein submitted an application on 26.08.2004 as Chief Executive Officer of M/s Control Electronics India (CEI) requesting for Tender Document. The application was rejected on the ground that it was accompanied by incomplete documents i.e. non-submission of documentary evidence of past performance and experience of the respondent. The respondent made a complaint dated 06.09.2004 against appellant No. 3 herein alleging that the Tender Documents were not issued to the respondent. It was followed by several letters requesting for issuance of Tender Documents. He was informed that rather than pressurising the appellants here or other officials, he should furnish documents as per pre-qualifying condition of the Tender. In response thereto, vide his letter dated 05.11.2004, the respondent filed a copy of purchase order dated 28.01.2002 placed by Jharkhand State Electricity Board (for short 'the JSEB') and assured to supply other documentary evidence (performance report) subsequently. On such assurance, the Tender Documents were issued to the respondent. The respondent vide his letter dated 08.12.2004, mentioned that the Performance Report was enclosed in Part-II. However, the said report was not found enclosed and even after repeated requests from the CSEB to furnish documents, respondent did not fulfill the necessary requirement. As the respondent did not submit the necessary documents, the CSEB sought the information from the Chief Engineer of JSEB (arrayed in the complaint as accused No.2) vide letter dated 10.12.2004 about the performance of the respondent. Appellant No.2 herein was also deputed to get the desired information from JSEB. After meeting the officials of JSEB, appellant No.2 submitted his report stating that the works carried out by the respondent were not satisfactory as many defects were found therein. As per the appellants, even technical expertise was sought from SE (ET & I) KW (CSEB) and found that the respondent was not technically suitable as per the technical vetting and comparative data of SE (ET & I) KW letter dated 04.02.2005. On that basis, tender of the respondent was rejected. The appellants submit that as an outburst, in not getting the Tender in his favour, the respondent made complaints alleging irregularities to various fora including the State Government, which ordered the CSEB to conduct an enquiry. The CSEB submitted its report on 21.02.2006 stating that there were no such irregularities and that the respondent had not furnished the necessary documents despite repeated requests. At this stage, the respondent filed the Civil Suit (26-A/06) before the Civil Judge Class-II, Korba against the CSEB. However, the respondent moved an application seeking to withdraw the said suit. In any case he did not appear on the date fixed and accordingly the suit was dismissed for non-prosecution on 12.09.2006. The respondent herein then filed a Writ Petition No.2951 of 2006 before the Chhattisgarh High Court which was dismissed on 25.06.2007. Even costs of Rs.25,000/- was imposed while dismissing the writ petition with the observations that it was abuse of the process of Court. Thereafter, SLP No.15897 of 2007 was preferred by the respondent which also came to be dismissed vide order dated 14.09.2007. After the exhaustion of these remedies, albeit unsuccessfully, the respondent filed a complaint before K.K. Nagar P.S., Thirucharapalli, Tamil Nadu. The police authorities refused to register the same on the ground that it is a civil dispute. It is, thereafter, that the respondent filed the said Criminal Complaint under Sections 120-B, 468, 420 & 500 IPC before the trial Court, which was registered as C.C. No. 183/07 and the trial Court issued summons to the appellants herein and accused No.1 (Successful Bidder) & accused No. 2 (then Chief Engineer, JSEB). Petitions of the appellants seeking quashing of the said complaint have been dismissed by the order of the High Court, which is impugned before us.\n3. A reading of the said complaint reveals the following broad allegations levelled by the respondent:\n(a) The respondent/complainant alleges that the appellants and accused No.1 (Successful Bidder) & accused No. 2 (then Chief Engineer, JSEB) had conspired secretly to disentitle the complainant's company by creating a discredit and for the said purpose, they were in constant touch so as to create the said Performance Report Cum Certificate, which was issued by accused No.2.\n(b) The respondent/complainant alleges that the said conspiracy started with an agreement entered into by the 1st accused and the appellants herein and they planned to fabricate the said certificate dated 28.12.2004. For this purpose, accused No. 2 was approached so as to tailor the certificate totally discrediting the CEI (Company of the Complainant) with reference to supply and service relationship with Patratu Thermal Power Station (for short 'the PTPS') and JSEB.\n(c) The respondent/complainant alleges that the said Certificate cum Report is false, fabricated, motivated and malafide and the same was contrary to the minutes of meeting that the complainant and his officials had with the officials of PTPS and JSEB. He further alleges that for the said reasons, the accused No. 2 was demoted from his post.\n(d) The respondent/complainant alleges that on suspicion of such Certificate Cum Report, the complainant visited the CSEB and on verifying about the same, he found that the said tender was being given to Company of the 1st accused against the Complainant's Company and so he wrote a letter to the Chief Secretary and Chairman of JSEB for verifying and cancelling such certificate. He also wrote to many officials of the CSEB.\n(e) The respondent/complainant alleges that the said Certificate is perse defamatory as against the complainant's company and is a crude attempt to favour accused No.1 by spoiling the image of the Complainants company. He further alleges that this caused a wrongful loss to the complainant's company by robbing its due chance to get a contract for the Boiler Plant Units at Korba.\n4. After recording preliminary evidence, the Magistrate took cognizance of the complaint which order was challenged in the High Court. Before the High Court, the appellants, inter alia, contended that the allegations made by the respondent under Sections 120-B, 468, 420 & 500 of IPC pertained to the award of tender in favour of accused No.1 in which the respondent was also a competing party. It was also pleaded that the said complaint has been lodged as an afterthought, having failed in the civil suit for injunction which was dismissed and likewise, after unsuccessful attempt to challenge the award of contract in favour of accused No.1 as the writ petition of the respondent was dismissed by the High Court. Thus, the lodging of complaint before Judicial Magistrate-II, Tiruchirapalli was nothing but abuse of process of law. The appellants also contended that the respondents herein had no locus standi nor any legal status to prefer the said complaint, as CEI is not a registered company, having a legal entity. The appellants further relied on Naresh Kumar Madan v. State of M.P., (2007) 4 SCC 766 2007 Indlaw SC 333 wherein it has been held that an employee working in the Electricity Board is covered under the definition of 'Public Servant' and State of Maharashtra v. Dr. Budhikota Subbarao, (1993) 2 SCC 567 1993 Indlaw SC 955 for the proposition that the absence of sanction order from the appropriate authority under S. 197 Cr.P.C for prosecuting a public servant, vitiates the proceedings.\n5. The respondent refuted the aforesaid submissions by arguing that the appellants herein had deliberately conspired and had committed the offences against the complainant and therefore he has a right to lodge a complaint for the offences committed by the appellants along with accused No. 2 (Chief Engineer, JSEB) in rejecting the tender submitted by the complainant with a view to accept the tender of the 1st accused. It was argued that they conspired and created false document with an idea of rejecting the claim of the complainant. The respondent further submitted that complainant's locus standi as a company was not questioned in the earlier proceedings before the Chhattisgarh High Court and that the Judicial Magistrate had applied his mind and after satisfying himself that the complainant/respondent has got legal status to lodge the said complaint, had taken cognizance of the offences committed by the accused persons. It was also contended that the question of obtaining sanction under S. 197 Cr.P.C. will not arise in so far as the present complaint is concerned, as the accused are charged for conspiracy, cheating, criminal breach of trust and defamation. He further submitted that his allegation in the complaint pertained to the fabrication of the Certificate-cum-Report dated 28.12.2004 which was used against him in rejecting his tender and 1st accused was favoured with the award of work. Therefore, they had committed offences against the complainant and damaged the reputation of the respondent/ complainant.\n6. The High Court while dismissing the petition of the appellants recorded that:\n(a) As far as mandatory provisions of S. 197 Cr.P.C is concerned, the High Court accepted that the appellants are 'Public Servants'. It also observed that if the accusation against the appellants under Sections 120-B, 468, 420 & 500 IPC are connected with the discharge of their duty viz. if the said acts had reasonable connection with discharge of his duty then applicability of S. 197 cannot be disputed. However, on going through the allegations in the complaint, the High Court held that even though the appellants are 'Public Servant', the alleged offences committed by them are cognizable offences are not in discharge of their normal duties, in which component of criminal breach of trust is found as one of the elements and hence the provisions of S. 197 Cr.P.C. are not attracted.\n(b) It has also been observed that the evidence regarding the allegations made in the complaint have to be recorded and gone into by the trial court after the evidence have been adduced by the complainant. It is only thereafter the lower Court, can decide as to whether the allegations about the falsity of the Certificate with conspiracy of accused No. 2 and the appellants herein are correct or not.\n7. It is clear from the above that primarily two questions arise for consideration namely:\n(a) Whether prior sanction of the competent authority to prosecute the appellants, who are admittedly public servants, is mandatory under S. 197 of the Code?\n(b) Whether, on the facts of this case, the complaint filed by the respondent is motivated and afterthought, after losing the battle in civil litigation and amounts to misuse and abuse of law?\nWe would like to remark that having regard to the facts of this case the two issues are interconnected and narratives would be overlapping, as would become apparent when we proceed with the discussion hereinafter.\n8. For this purpose, we would first like to point out that the High Court has itself taken note of the judgment of this Court in the Case of Naresh Kumar Madan 2007 Indlaw SC 333 (supra) to hold that the appellants are covered by the description of public servants within the meaning of S. 21 of IPC. Following observations therefrom have been quoted:\n\"The officers of the State Electricity Board are required to carry out public functions. They are public authorities. Their action in one way or the other may entail civil or evil consequences to the consumers of electrical energy. They may prosecute a person. They are empowered to enter into the house of the Board's consumers. It is only for proper and effective exercise of those powers, the statute provides that they would be public servants, wherefore a legal fiction has been created in favour of those employees, when acting or purported to act in pursuance of any of the provisions of the Act within the meaning of S. 21 of the Indian Penal Code. Indian Penal Code denotes various persons to the public servants. It is, however, not exhaustive. A person may be public servant in terms of another statute. However we may notice that a person, who, inter alia, is in the service or pay of the Government established by or under a Central, Provincial or State Act, would also come within the purview thereof. S. 2 (1) (c) of the 1988 Act also brings within its embrace a person in the service or pay of a corporation established by or under a Central Act.\"\n9. The question is of the applicability of S. 197 of the Code. Said provision with which we are concerned is reproduced below:\n\"Prosecution of Judges and public servant. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any ofence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-\n(a) In the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;\n(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.\"\n10. This provision makes it clear that if any offence is alleged to have been committed by a public servant who cannot be removed from the office except by or with the sanction of the Government, the Court is precluded from taking cognizance of such offence except with the previous sanction of the competent authority specified in this provision.\n11. The sanction, however, is necessary if the offence alleged against public servant is committed by him \"while acting or purporting to act in the discharge of his official duties\". In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, following yardstick is provided by this Court in Dr. Budhikota Subbarao 1993 Indlaw SC 955 (supra) in the following words:\n\"If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of S. 197 of the Code cannot be disputed.\"\n12. This principle was explained in some more detail in the case of Raghunath Anant Govilkar v. State of Maharashtra 2008 Indlaw SC 158, which was decided by this Court on 08.02.2008 in SLP (Crl.) No.5453 of 2007, in the following manner:\n\"On the question of the applicability of S. 197 of the Code of Criminal Procedure, the principle laid down in two cases, namely, Shreekantiah Ramayya Munipalli v. State of Bombay 1954 Indlaw SC 175 and Amrik Singh v. State of Pepsu 1955 Indlaw SC 9 was as follows:\nIt is not every offence committed, by a public servant that requires sanction for prosecution under S. 197 (1) of Criminal Procedure Cod; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary.\nThe real question therefore, is whether the acts complained of in the present case were directly concerned with the official duties of the three public servants. As far as the offence of criminal conspiracy punishable under Sections 120-B read with S. 409 of the Indian Penal Code is concerned and also S. 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in S. 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under S. 197 of the Code of Criminal Procedure is, therefore, no bar.\"\n13. Likewise, in Shambhoo Nath Misra v. State of U.P. and others, (1997) 5 SCC 326 1997 Indlaw SC 1818, the Court dealt with the subject in the following manner:\n\"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained.\"\n14. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of S. 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations namely the allegations pertain to fabricating the false records which cannot be treated as part of the appellants normal official duties.\nThe High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied. If one looks into the allegations made in the complaint as stand alone allegations, probably what the High Court has said may seem to be justified. However, a little deeper scrutiny into the circumstances under which the complaint came to be filed would demonstrate that allegation of fabricating the false record is clearly an afterthought and it becomes more than apparent that the respondent has chosen to level such a make belief allegation with sole motive to give a shape of criminality to the entire dispute, which was otherwise civil in nature. As noted above, the respondent had in fact initiated civil action in the form of suit for injunction against the award of the contract in which he failed. Order of civil court was challenged by filing writ petition in the High Court. Plea of the respondent was that the action of the Department in rejecting his tender and awarding the contract to accused No.1 was illegal and motivated. Writ petition was also dismissed with cost. These orders attained finality. It is only thereafter criminal complaint is filed with the allegation that accused No.1 is favoured by creating a false certificate dated 28.12.2004. We would dilate this discussion with some elaboration, hereinafter.\n15. As already pointed above, tender was floated by the CSEB and the CEI herein was one of the parties who had submitted its bid through the respondent. However, tender conditions mentioned certain conditions and it was necessary to fulfill those conditions to become eligible to submit the bid and have it considered. As per the appellants, tender of the respondent was rejected on the ground that plant and equipment erected by the respondent at Patratu Thermal Power Station, Patratu, Jharkhand was not functioning well. This information was received by the Tender Committee from JSEB. When the report was sought by CSEB in December, 2004, the Tender Committee took the view that the respondent did not fulfill the pre-qualifying conditions and rejected his tender. Before doing so, the respondent was asked time and again to send the performance report which he had promised but he failed to comply even when he had assured to do the needful. In fact, that itself was sufficient to reject that bid of the respondent as it was non compliant with the tender conditions. Still, in order to verify the claim of the respondent and to consider his bid on merits, though not strictly required, the appellant R.C. Jain was deputed to get the desired information from JSEB. He met the officials of JSEB and submitted his report to the effect that the works carried out by the respondent at Patratu Thermal Power Station was not satisfactory. Even, Shri B.M. Ram, General Manager of the said Power Station furnished his report dated 28.12.2004 wherein it was summed up that due to the defects in the scanning system, supplied by the respondent, generation had been adversely effected and the said Electricity Board was not satisfied with the equipment supplied by the respondent. In spite of the aforesaid material, the tender Committee acted with caution and even the technical expertise was sought. Even the report of the technical experts went against the respondent as it opined that the respondent was not technically suitable on the technical vetting and comparative data. On the basis of the aforesaid material, the respondent's tender document was not opened and returned and he was informed accordingly. All this has clearly happened in furtherance of and in discharge of the official duties by the appellant. In the facts of the present case, we are of the view that allegations of fabricating the records are mischievously made as an afterthought, just to give colour of criminality to a civil case.\n16. As pointed out above, the respondent had even filed the civil suit challenging the decision of the Electricity Board in returning his tender documents on the ground that the same were not as per pre- qualifying conditions of the tender. He had thus resorted to the civil remedy. However, he failed therein as for the reasons best known to him, he sought to withdrew the same and accordingly the same was dismissed for non-prosecution. It is trite that once the suit is withdrawn, that acts as constructive res judicata having regard to the provision of Order XXIII Rule 1 of the Code of Civil Procedure. Also, when suit is dismissed under Order IX Rule 8 CPC, fresh suit under Order IX Rule 9 is barred. The legal implication would be of that the attempt of the respondent in challenging the decision of the Tender Committee in not considering his tender remained unfaulted. Even when the respondent himself invited order of dismissal in the civil suit, curiously enough, he filed a writ petition against the order passed in the civil court dismissing his suit for non-prosecution, but the same was also dismissed by the High Court on 25.06.2007 and even a cost of Rs.25,000/- was imposed on the respondent as the said writ petition was perceived by the High Court as 'abuse of process of the court'. SLP preferred by the respondent was also dismissed by this Court on 14.09.2007. It is only thereafter the respondent filed the criminal complaint out of which present proceedings emanate. No doubt, the respondent in his complaint has right to colour his complaint by levelling the allegations that the appellants herein fabricated the records. However, on the facts of this case, it becomes difficult to eschew this allegation of the respondent and we get an uncanny feeling that the contents of FIR with these allegations are a postscript of the respondent after losing the battle in civil proceedings which were taken out by him challenging the action of the Department in rejecting his tender. When he did not succeed in the said attempt, he came out with the allegations of forgery. It is thus becomes clear that the action of the respondent in filing the criminal complaint is not bonafide and amounts to misuse and abuse of the process of law.\n17. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 1990 Indlaw SC 91, this Court has laid down principles on which Court can quash the criminal proceedings u/s. 482 of Cr.P.C. These are as follows:\n\"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.\n(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s. 156 (1) of the Code except under an order of a Magistrate within the purview of S. 155 (2) of the Code.\n(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.\n(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 155 (2) of the Code.\n(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.\n(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.\n(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.\"\nPrinciple Nos.6 and 7 are clearly applicable in the present case.\n18. Having regard to the circumstances narrated and explained above, we are also of the view that attempt is made by the respondent to convert a case with civil nature into criminal prosecution. In a case like this, High Court would have been justified in quashing the proceedings in exercise of its inherent powers u/s. 482 of the Code. It would be of benefit to refer to the judgment in the case of Indian Oil Corpn. v. NEPC India Ltd. and others, (2006) 6 SCC 736 2006 Indlaw SC 430, wherein the Court adversely commented upon this very tendency of filing criminal complaints even in cases relating to commercial transaction for which civil remedy is available is available or has been availed. The Court held that the following observations of the Court in this behalf are taken note of:\n\"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 2000 Indlaw SC 603, this Court observed:\n\"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction u/s. 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.\"\n14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power u/s. 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.\"\n19. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 2007 Indlaw SC 1024, the Court reiterated the scope and ambit of power of the High Court u/s. 482 of the Code in the following words:\n\"23. This Court in a number of cases has laid down the scope and ambit of courts' powers u/s. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power u/s. 482 CrPC can be exercised:\n(i) to give effect to an order under the Code;\n(ii) to prevent abuse of the process of court, and\n(iii) to otherwise secure the ends of justice.\n24. Inherent powers u/s. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.\nDiscussion of decided cases\n25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP : [1964] A.C. 1254  Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, [1977] A.C. 1  stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.\n46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts u/s. 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.\"\n20. As a result, these appeals are allowed. Order of the High Court is set aside. Consequently, cognizance taken by the learned Magistrate and orders summoning the appellants as accused is hereby set aside resulting into the dismissal of the said complaint. There shall however be no order as to costs.\nAppeals allowed\n"}
+{"id": "LVOkVEUVB5", "title": "", "text": "Manager, R.B.I., Bangalore v S. Mani and Others\nSupreme Court of India\n\n14 March 2005\nAppeal (Civil)  6306-6316 of 2003\nThe Judgment was delivered by : S. B. Sinha, J.\n1.  The Respondents herein were Ticca Mazdoors working under the Appellant herein. Ticca Mazdoors are intermittently appointed by the Reserve Bank of India whenever absence of regular Class IV employees takes place. They are not engaged everyday or continuously. Their engagement depends upon the need of the Appellant. They are never regarded as regular Mazdoors. Two waiting lists are maintained by the Appellant. The first waiting list contains the names of such of them who may be appointed as regular Mazdoors whereas the second list is maintained for those who are to be engaged as Ticca Mazdoors. The name of the respondents figured in the second list. They were appointed in the said category as Ticca Mazdoor between the period 14th March, 1980 and 8th August, 1982 for the purpose of their appointment as regular Mazdoors. The Respondents herein, except Respondent No. 6, were interviewed on different dates between January, 1982 and May, 1982. Allegedly, during interview, they produced transfer certificates but their answers to the questions posed in this behalf were not in conformity therewith, whereupon a verification was made and it was found that the said certificates were forged and fabricated. Three first information reports were lodged by the officers of the Appellant herein for furnishing false certifications by the Respondents.\n2. In the criminal case, however, they were acquitted by three different judgements passed on 20th April, 1987, 5th August, 1987 and 24th September, 1987. Between October, 1987 and August, 1988, the Respondents submitted fresh school transfer certificates and requested the Appellant herein to reemploy them. As their request for reemployment was not accepted, an industrial dispute was raised resulting in a reference made by the Central Government for adjudication thereof to the Central Government Industrial Tribunal, Bangalore. The Industrial Tribunal by an award dated 18.12.1997 held that the Respondents having completed 240 days of service; and their terminations having been brought about without complying with the provisions of Section 25F of the Industrial Disputes Act, and, thus, being illegal they were entitled to be reinstated in the Bank's services as per the prevailing rules and conditions of the service with full back wages.\n3.  The Appellant herein filed a Special Leave Petition against the said award which was dismissed as withdrawn with liberty to it to approach the High Court. The Appellant filed writ petitions before the Karnataka High Court. By an order dated 30th November, 1998, the writ petitions were dismissed by the learned Single Judge whereagainst writ appeals were filed by the Appellant which were marked as WA No. 3700 of 1999 and 5301 to 5310 of 1999. By reason of the impugned judgment dated 25th June, 2002, the Division Bench allowed the said appeal in part modifying the award of the Tribunal as also the learned Single Judge to the effect that the back wages be paid from 23rd July, 1993 instead of their respective dates of retrenchment.\n4. The Division Bench, however, gave liberty to the Appellant to hold domestic enquiry against the Respondents for the alleged misconduct committed by them. The Division Bench in issuing the aforesaid direction inter alia held that as the Respondents were not regularized in services for the alleged misconduct of producing false certificates, the same would amount to stigma and loss of confidence of the Appellant in them.\n5.  Mr. Mahendra Anand, learned senior counsel appearing on behalf of the Appellant would contend that as the Respondents herein did not report for duty between December, 1982 and March, 1987, they must be held to have abandoned their services.\n6.  The learned counsel would contend that the learned Tribunal committed a serious error of law insofar as it failed to take into consideration the fact that the Respondents were not able to prove that they had completed 240 days of service during a period of 12 months preceding the order of termination and in that view of the matter the question of compliance of Section 25F of the Industrial Disputes Act did not arise at all. Our attention was also drawn to the fact that during pendency of aforementioned industrial adjudication the management and the Union had arrived at a settlement pursuant whereto or in furtherance whereof all posts had been filled up. In any event, it was urged, only because the Respondents have allegedly completed 240 days of work, the same by itself would not confer any right on them to be regularized in service. Reliance in this connection has been placed on Maharashtra State Cooperative Cotton Growers' Marketing Federation Ltd. and Another Vs. Employees' Union and Another [1994 Supp. (3) SCC 385] 1994 Indlaw SC 1275\n7.  The learned counsel would submit that no adverse inference could have been drawn for non-production of attendance register as sufficient explanation therefor had been furnished. Reliance in this connection has been placed on Municipal Corporation, Faridabad Vs. Siri Niwas [(2004) 8 SCC 195] 2004 Indlaw SC 719.\n8.  It was further urged that the burden of proof in that behalf lay upon the Respondents and in support thereof reliance has been placed on M.P. Electricity Board Vs. Hariram [(2004) 8 SCC 246] 2004 Indlaw SC 829.\n9.  The Tribunal, according to Mr. Anand, misdirected itself in passing the impugned award insofar as it considered irrelevant factors and failed to take into consideration the relevant facts. The learned counsel has further placed before us some school transfer certificates produced by some of the Respondents in December, 1982 and March, 1987 with a view to show that the action taken by the Appellant herein was not wholly arbitrary so as to justify a direction for reinstatement of the Respondents in service only on the ground that they stood acquitted in the criminal cases. The judgments of the criminal court having been rendered by giving benefit of doubt to the Respondents herein, the learned counsel would submit, the same itself could not have been a ground for grant of relief. Reliance in this connection has been placed on Union of India and Another Vs. Bihari Lal Sidhana [(1997) 4 SCC 385] 1997 Indlaw SC 3017.\n10.  Mr. N.G. Phadke, learned counsel appearing on behalf of the Respondents, on the other hand, supported the award of the Tribunal and consequently the judgments of the learned Single Judge and the Division Bench of the Karnataka High Court contending that\n(i) . the Respondents' contentions that they continued in service, from March 1980 to August 1982 as disclosed in their pleadings and representations, having not been denied, the same must be held to have been admitted.\n(ii) . as the Appellant herein could not prove its case that the Respondents had abandoned their services, the Tribunal rightly placed the onus of proof on it;\n(iii) as despite an order made in this behalf the Appellant did not produce attendance registers, the impugned award could have been passed upon drawing an adverse inference.Reliance in this behalf has been placed on H.D. Singh Vs. Reserve Bank of India and Others [(1985) 4 SCC 201] 1985 Indlaw SC 280.\n(iv) in any event, the Appellant never raised a contention that the Respondents had not worked for more than 240 days during preceding 12 months.\n(v) the order of the Division Bench being a consent order, no appeal lies thereagainst.\n(vi) although by reason of the Respondents' being reinstated in service, they would continue to have the status of Ticca Mazdoors, but having regard to the intervening circumstances, viz., the settlement arrived at by and between the Appellant and the Union, they would be entitled to be regularized in services in terms of the decision of this Court in Chief General Manager, Reserve Bank of India Vs. General Secretary, Reserve Bank Workers Organisation [2001 (2) LLJ 487] 2001 Indlaw SC 355; and\n(vii) section 25F of the Industrial Disputes Act being mandatory in nature, the provisions thereof are required to be complied with even when the workmen were employed as Badli Workers or Ticca Mazdoors as daily wager. Reliance in this behalf has been placed on The State Bank of India Vs. Shri N. Sundara Money [(1976) 1 SCC 822] 1976 Indlaw SC 4, H.D. Singh 1985 Indlaw SC 280 (supra), Management of M/s. Willcox Buckwell India Ltd. Vs. Jagannath and Others [(1974) 4 SCC 850] 1973 Indlaw SC 462, L. Robert D'Souza Vs. Executive Engineer, Southern Railway and Another [(1982) 1 SCC 645] 1982 Indlaw SC 79, Samishta Dube Vs. City Board, Etawah and another [1999 Lab. I.C. 1125] 1999 Indlaw SC 982 and Moolchand Kharati Ram Hospital K. Union Vs. Labour Commissioner and Others [2000 (2) LLJ 1411] 2000 Indlaw SC 2977.\nSTATUS OF TICCA MAZDOORS:\n11.  As noticed hereinbefore, Ticca Mazdoors are not regarded as regular Mazdoors. Two waiting lists are maintained by the appellant. The first waiting list contains the names of such Mazdoors who may be appointed as regular Mazdoors whereas the second list is maintained for those who are to be engaged as Ticca Mazdoors.\n12.  The service of Ticca Mazdoors being not permanent in nature can be dispensed with subject to compliance of the statutory or contractual requirements, if any. Their status is not higher than that of a temporary workman or a probationer. (See Civil Appeal No. 4868 of 1999, Karnataka State Road Transport Corporation & Another Vs. S.G. Kotturapp & Anr. 2005 Indlaw SC 144, disposed of on 3rd March, 2005)\nEFFECT OF JUDGMENT OF ACQUITTAL:\n13.  The Appellant's contention as regard holding of interview of the Respondents herein in December, 1982 and March, 1987 is not denied or disputed. It is also further not in dispute that their educational qualifications and other details were required to be verified. Institution of three criminal cases stands admitted. Before us a judgment passed in the criminal cases has been produced, from a perusal whereof it would appear that the contention raised by the Respondents herein that they had never produced any transfer certificate at the time of interview was not raised. If the contention of the Appellant as regard production of transfer certificates by the Respondents at the time of their interview finds acceptance, then concededly the said certificates vis-'-vis the certificates produced by the Respondents in the year 1987 are different in several respects, including the name of the father and name of the school, date of birth, etc. It is true that the certificates produced by them in 1987 were found to be genuine but the same by itself would not lead to a conclusion, as suggested by Mr. Phadke, that the Respondents themselves did not produce the said certificates before the interview board or the same were manufactured by the officers of the Reserve Bank of India.\n14.  It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding upon the employer. The employer had no occasion to initiate departmental proceeding against the Respondents. They were not regularly employed. They, according to the Appellant, filed forged and fabricated documents and as such were not found fit to be absorbed in regular service. The effect of a judgment of acquittal vis-'-vis the alleged misconduct on the part of the workmen fell for consideration before this Court in Bihari Lal Sidhana 1997 Indlaw SC 3017 (supra) wherein it was held:\n\"5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control & Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money.\"\n15.  Recently in Krishnakali Tea Estate Vs. Akhil Bharatiya Chah Mazdoor Sangh and Another [(2004) 8 SCC 200] 2004 Indlaw SC 890, one of us, Santosh Hegde, J., speaking for a 3-Judge Bench observed:\n\"25. The next contention addressed on behalf of the respondents is that the Labour Court ought not to have brushed aside the finding of the criminal court which according to the learned Single Judge \"honourably\" acquitted the accused workmen of the offence before it. We have been taken through the said judgment of the criminal court and we must record that there was such \"honourable\" acquittal by the criminal court. The acquittal by the criminal court was based on the fact that the prosecution did not produce sufficient material to establish its charge which is clear from the following observations found in the judgment of the criminal court: \"Absolutely in the evidence on record of the prosecution witnesses I have found nothing against the accused persons. The prosecution totally fails to prove the charges under Sections 147, 353, 329 IPC.\"\n26. Learned counsel for the respondents in regard to the above contention relied on a judgment of this Court in the case of Capt. M. Paul Anthony. In our opinion, even that case would not support the respondents herein because in the said case the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence, this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. It is to be noted that in that case the finding by the Tribunal was arrived at in an ex parte departmental proceeding. In the case in hand, we have noticed that before the Labour Court the evidence led by the management was different from that led by the prosecution in the criminal case and the materials before the criminal court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion dehors the finding of the criminal court\"\nIt was observed:\n\"From the above, it is seen that the approach and the objectives of the criminal proceedings and the disciplinary proceedings are altogether distinct and different. The observations therein indicate that the Labour Court is not bound by the findings of the criminal court.\"\n16.  In Cholan Roadways Limited Vs. G. Thirugnanasambandam [2004 (10) SCALE 578] 2004 Indlaw SC 1069, this Court held:\n\"It is further trite that the standard of proof required in a domestic enquiry vis-'-vis a criminal trial is absolutely different. Whereas in the former 'preponderance of probability' would suffice; in the latter, 'proof beyond all reasonable doubt' is imperative.\"\n17.  The contention that the Respondents had not produced such certificates or the same have been fabricated at the instance of some officers of the Reserve Bank of India, therefore, does not find our acceptance. It is rejected accordingly.\nSECTION 25F OF THE INDUSTIRAL DISPUTES ACT:\n18.  The provisions contained in Section 25F of the Industrial Disputes Act are required to be complied with if the workmen concerned had completed 240 days of service in a period of 12 months preceding the order of termination. The Tribunal admittedly based its decision on the following:\n(i) The Appellant did not produce the attendance register.\n(ii) There was circumstantial evidence to show that the Respondents herein had made several representations between March, 1987 and April, 1990.\n(iii) The witness examined on behalf of the Appellant MW3 conceded that the workmen had worked for 240 days.\n19.  The workmen raised a contention of rendering a continuous service between April, 1980 to December, 1982 in their pleadings and representations. Admittedly, the Appellant herein in their rejoinder denied and disputed the said facts stating:\n\"(i) as regards paragraph 1, it is denied that the I Party has worked continuously from April, 1980 to December, 1982. The factual position is that the I party was engaged off and on from August 80 to January 83 depending upon the availability of casual vacancies on various dates and the need for engaging ticcas.\"\n20.  The concerned workmen in their evidence did not specifically state that they had worked for 240 days. They merely contended in their affidavit that they are reiterating their stand in the claim petition.\n21.  Pleadings are no substitute for proof. No workman, thus, took an oath to state that they had worked for 240 days. No document in support of the said plea was produced. It is, therefore not correct to contend that the plea raised by the Respondents herein that they have worked continuously for 240 days was deemed to have been admitted by applying the doctrine of non-traverse. It any event the contention of the Respondents having been denied and disputed, it was obligatory on the part of the Respondents to add new evidence. The contents raised in the letters of the Union dated 30th May, 1988 and 11th April, 1990 containing statements to the effect that the workmen had been working continuously for 240 days might not have been replied to, but the same is of no effect as by reason thereof, the allegations made therein cannot be said to have been proved particularly in view of the fact that the contents thereof were not proved by any witness. Only by reason of non-response to such letters, the contents thereof would not stand admitted. Evidence Act does not say so.\n22.  The Appellant, therefore, cannot be said to have admitted that the Respondents had worked for more than 240 days.\nNON-PRODUCTION OF THE DOCUMENTS:\n23.  It is no doubt true that the industrial tribunal by an order dated 12th May, 1993 inter alia directed the Appellant to produce register of workmen for the period between April, 1980 and December, 1982 in respect of the first party workmen and attendance register. The Tribunal, however, in its award noticed the explanation of the Appellant that the attendance registers being old and hence could not be produced holding:\n\"Of course, it is true that the 2nd party had given an explanation namely those attendance registers are very old and hence could not be produced. But this explanation cannot be acceptable, because as I pointed out earlier, apart from the attendance registers, there may be other relevant records to show that the 1st parties either worked continuously as alleged by the 1st parties or only during the leave vacancy with break of service.\"\nThe learned Tribunal further held:\n\"Therefore, the materials placed before this Tribunal lead to the only conclusion that the 2nd party is not in a position to prove their case namely the concerned 1st parties 1 to 11 had abandoned themselves without any proper reasons.\"\n24.  An adverse inference, therefore, was drawn for non-production of the attendance register alone, and not for non-production of the wage-slips. Reference to 'other relevant documents' must be held to be vague as the Appellant herein had not been called upon to produce any other document for the said purpose.\n25.  It appears that the learned Tribunal considered the matter solely from the angle that the Appellant has failed to prove its plea of abandonment of service by the Respondents.\n26.  The question came up for consideration before this Court recently in Siri Niwas 2004 Indlaw SC 719 (supra) wherein it was held:\n\"15A Court of Law even in a case where provisions of the Indian Evidence Act apply, may presume or may not presume that if a party despite possession of the best evidence had not produced the same, it would have gone against his contentions. The matter, however, would be different where despite direction by a court the evidence is withheld. Presumption as to adverse inference for non-production of evidence is always optional and one of the factors which is required to be taken into consideration in the background of facts involved in the lis. The presumption, thus, is not obligatory because notwithstanding the intentional non-production, other circumstances may exist upon which such intentional non-production may be found to be justifiable on some reasonable grounds.\"\n27.  Referring to the decision of this Court in Indira Nehru Gandhi Vs. Raj Narain [1975 Supp SCC 1] 1975 Indlaw SC 473, this Court observed:\n\"Furthermore a party in order to get benefit of the provisions contained in S. 114(f) of the Indian Evidence Act must place some evidence in support of his case. Here the Respondent failed to do so.\"\nIn Hariram 2004 Indlaw SC 829 (supra), this Court observed:\n\"11. The above burden having not been discharged and the Labour Court having held so, in our opinion, the Industrial Court and the High Court erred in basing an order of reinstatement solely on an adverse inference drawn erroneously.\"\n28.  As noticed hereinbefore, in this case also the Respondents did not adduce any evidence whatsoever. Thus, in the facts and circumstances of the case, the Tribunal erred in drawing an adverse inference.\nBURDEN OF PROOF:\n29.  The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle. It held that the burden of proof was upon the Appellant on the premise that they have failed to prove their plea of abandonment of service stating:\n\"It is admitted case of the parties that all the 1st parties under the references CR No. 1/92 to 11/92 have been appointed by the 2nd party as ticca mazdoors. As per the 1st parties, they had worked continuously from April, 1980 to December, 1982. But the 2nd party had denied the above said claim of continuous service of the 1st parties on the ground that the 1st parties has not been appointed as regular workmen but they were working only as temporary part time workers as ticca mazdoor and their services were required whenever necessary arose that too on the leave vacancies of regular employees. But as strongly contended by the counsel for the 1st party, since the 2nd party had denied the above said claim of continuous period of service, it is for the 2nd party to prove through the records available with them as the relevant records could be available only with the 2nd party.\"\n30.  The Tribunal, therefore, accepted that the Appellant had denied the Respondents' claim as regard their continuous service.\n31.  In Range Forest Officer Vs. S.T. Hadimani [(2002) 3 SCC 25] 2002 Indlaw SC 843, it was stated:\n\"In our opinion the Tribunal was not right in placing the onus on the management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in the year preceding his termination. Filing of an affidavit is only his own statement in his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to the conclusion that a workman had, in fact, worked for 240 days in a year. No proof of receipt of salary or wages for 240 days or order or record of appointment or engagement for this period was produced by the workman. On this ground alone, the award is liable to be set aside.\" [See also Essen Deinki Vs. Rajiv Kumar, (2002) 8 SCC 400] 2002 Indlaw SC 1184\"\nIn Siri Niwas 2004 Indlaw SC 719 (supra), this Court held:\n\"The provisions of the Indian Evidence Act per se are not applicable in an industrial adjudication. The general principles of it are, however applicable. It is also imperative for the Industrial Tribunal to see that the principles of natural justice are complied with. The burden of proof was on the respondent herein to show that he had worked for 240 days in preceding twelve months prior to his alleged retrenchment. In terms of Section 25-F of the Industrial Disputes Act, 1947, an order retrenching a workman would not be effective unless the conditions precedent therefor are satisfied. Section 25-F postulates the following conditions to be fulfilled by employer for effecting a valid retrenchment :\n(i). one month's notice in writing indicating the reasons for retrenchment or wages in lieu thereof;\n(ii) payment of compensation equivalent to fifteen days, average pay for every completed year of continuous service or any part thereof in excess of six months.\"\nIt was further observed:\n\"14 As noticed hereinbefore, the burden of proof was on the workman. From the Award it does not appear that the workman adduced any evidence whatsoever in support of his contention that he complied with the requirements of Section 25B of the Industrial Disputes Act. Apart from examining himself in support of his contention he did not produce or call for any document from the office of the Appellant herein including the muster rolls. It is improbable that a person working in a Local Authority would not be in possession of any documentary evidence to support his claim before the Tribunal. Apart from muster rolls he could have shown the terms and conditions of his offer of appointment and the remuneration received by him for working during the aforementioned period. He even did not examine any other witness in support of his case.\"\nYet again in Hariram 2004 Indlaw SC 829 (supra), it was opined:\n\"10. We cannot but bear in mind the fact that the initial burden of establishing the factum of their continuous work for 240 days in a year rests with the respondent applicants.\"\n32.  Mr. Phadke placed strong reliance on H.D. Singh 1985 Indlaw SC 280 (supra) to contend that adverse inference was drawn therein for non-production of certain documents. H.D. Singh 1985 Indlaw SC 280 (supra) was rendered on its own fact. In that case, a Special Leave Petition was entertained by this Court directly from the Award passed by the Industrial Tribunal. Before this Court, both the parties filed affidavits and several documents. The workmen therein categorically disclosed the number of days they had worked in each year. In that case the name of the workman was struck off as he had allegedly concealed his educational qualification; purportedly on the basis of a confidential circular issued by the bank on June 27, 1976 to the effect that the matriculates will not be retained in the list. As the workman therein in reply to the letter of the Bank stated that he was not a matriculate in 1974 and he passed the examination only in 1975, he was not given any work even after July, 1976 without issuing any written notice terminating his services. Holding that the workman had been retrenched from service, as noticed hereinbefore, affidavits of the parties were filed and, thus, some evidence had been adduced. The number of actual days worked by the workman therein was also brought on records by the Respondent. The said decision, thus, having been rendered in the fact situation obtaining therein does not constitute a binding precedent.\nCIRCUMSTANTIAL EVIDENCE:\n33.  The Tribunal also relied upon some purported circumstantial evidence to hold that the workmen had completed 240 days of work in the following terms:\n\"That apart, the circumstantial evidence also would show that the plea of the abandonment had been taken by the 2nd party only for the sake of defence in this case and it is not a real one. In order to explain the same when we perused the admitted documents Exs. M1 to M7 together with the admitted evidence of MW3 at para 5 of his deposition, we would see that from 3.3.87 till 11.4.90 either almost all the 1st parties before this Tribunal had continuously requested the management for their reinstatement alleging that they served in the 2nd party Bank continuously from April, 1980 to December, 1982. They also pleaded the same in their respective claim petitions before us. But the management as per Exs. M8 dated 8.5.1991 had not denied the alleged claim of continuous service of the 1st parties at their earliest opportunity. But, on the other hand, Ex.M8 would show that for absorption of the 1st parties the 2nd party had put some other conditions and demanded the 1st parties workmen for their signature if they agreed for those conditions. If that be the case, it could be seen that, at the earliest point of time, the 2nd party Bank had not denied the said claim of continue service made by 1st parties. Hence, the documents Exs. M1 to M8 would also disqualify the 2nd party from claiming said plea namely since because the 1st parties had worked temporarily that too only on leave vacancy they are not entitled for any benefits under the provisions of the I.D. Act.\"\n34.  It is difficult to accept the logic behind the said findings.\n35.  Only because the Appellant failed to prove their plea of abandonment of service by the Respondents, the same in law cannot be taken to be a circumstance that the Respondents have proved their case.\n36.  The circumstances relied upon, in our opinion, are wholly irrelevant for the purpose of considering as to whether the Respondents have completed 240 days of service or not. A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their case.\nADMISSION BY MW3\n37.  We have been taken through the deposition of Shri S. Nagarajan, MW3. He was examined as a witness to prove production of the certificates by the Respondents. He had verified transfer certificates filed subsequently by the Respondents and the same were found to be all genuine. He did not make any admission as regard the continuous working of the Respondents for a period of more than 240 days nor is there even a suggestion to that effect on behalf of the Respondents herein.\n38.  The Tribunal's findings are, thus, based on no evidence and must be held to be irrational.\nJUDICIAL REVIEW:\n39.  The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. He apparently posed unto itself wrong questions. He placed onus of proof wrongly upon the Appellant. His decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out.\nIn Cholan Roadways Limited 2004 Indlaw SC 1069 (supra), this Court held:\n\"34. In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in \"preponderance of probability\" and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.\"\nThe Appellant in para 13.14 of the writ petition contended:\n\"13.14 For that the Industrial Tribunal erred in holding that all the Ticca Mazdoors are workmen as they have completed 240 days of continuous service during the year 1980-1982, merely because the Petitioner could not produce the attendance registers for the relevant period as the same being old, and destroyed after expiry of its stipulated period of preservation of 5 years were not available with the Petitioner Bank.\"\n40.  Neither the learned Single Judge nor the Division Bench adverted to the said question at all. The learned Single Judge without considering the contentions raised by the Appellant held:\n\"The Tribunal has extensively dealt with the points of dispute relating to justification of the Bank in terminating the services of the workmen. In paragraphs 16 to 49 the Tribunal has elaborately discussed facts, evidence and the material placed on record with reference to the case laws relating to 'retrenchment'. In this view of the matter, it is wholly unnecessary to refer Mr. Padke, learned counsel for respondents 1 to 11. The Tribunal has recorded a finding that the action of the Bank amounts to retrenchment as defined u/s. 2() of the Act and there is violation of mandatory requirement Section 25-F of the Act. Therefore, this Court should not interfere with the findings of fact recorded by the Tribunal.\"\n41.  The Division Bench unfortunately in its judgment did not take into consideration the relevant questions. It proceeded on a pre-supposition that the Bank intended to reinstate the workmen. The Division Bench without any detailed discussion observed:\n\"The submission of Mr. Kasturi, learned senior counsel for the Bank has some force in so far as both the order of the Tribunal and the learned Single Judge proceeded on the footings that the termination was contrary to Section 25F of the Industrial Dispute Act.\"\n42.  Laying emphasis on the alleged right of the Respondents to be regularized in their services and denial thereof by the Appellant herein, the Division Bench held that discontinuance of the workmen on the ground that they filed forged certificates cast a stigma and, on that ground, it upheld the award of the learned Industrial Tribunal as also the judgment of the learned Single Judge.\n43.  The Division Bench, however, relying on or on the basis of, the decision of this Court in Chief General Manager, Reserve Bank of India 2001 Indlaw SC 355 (supra) directed that the backwages shall be paid only from 23.7.1993.\nEFFECT OF THE ORDER OF REINSTATEMENT:\n44.  The terms and conditions of settlement by and between the Reserve Bank of India and the Reserve Bank Workers Federation although not produced before us, the same appear in a judgment of this Court in M.G. Datania & Ors. Vs. Reserve Bank of India & Anr. 1995 Indlaw SC 2356 [Civil Appeal No. 7407 of 1994, disposed of on 28th November, 1995]; the relevant portion whereof is as under:\n\"Terms of Settlement:\n(i) The existing arrangement or practice of engaging persons on daily wages purely on temporary and ad hoc basis in Class IV in various cadres shall be discontinued forthwith.\n(ii) The leave reserve in the case of mazdoors employed in Cash Department shall be increased from the existing level of 15% to 25%.\n(iii) The leave reserve in other categories in Class IV shall be increased from the existing level of 15% to 20%.\n(iv) The additional posts that may be created or may arise as a consequence of paragraphs (ii) and (iii) above, together with existing vacancies, if any, shall be utilized for giving (a) full time employment to part-time employees to the extent possible and (b) regular full-time or part-time employment, as the case may be, to the ticcas who have rendered continuous service of three years or more as on 19th November, 1992. However, if the number of available vacancies at a particular centre is less than the number of such ticcas at that centre to be given regular full-time/ part time appointments, the ticcas in excess of the available vacancies at that centre shall have to move at their own cost to another centre where vacancies are available after absorbing eligible ticcas at that centre on a returnable basis as and when vacancies arise in the parent centre. Such repatriation being in the nature of request transfer shall be at their own cost and also subject to usual terms and conditions prescribed in respect of request transfers. Such of the ticcas who are not willing to the above arrangements shall have no claim to be absorbed in the Bank.\n(v) The Federation shall not under any circumstances insist on engagement of ticcas on daily wage basis for carrying out Bank's work smoothly and without any hindrance or disturbance in any Section/ Department including Cash Department of the Bank irrespective of number of employees absent for any reason whatsoever. In other words, not withstanding any absenteeism in Class IV cadre (any group), the work of the Bank shall be carried on by and with the assistance of the employees present on any given day. If, however, there is an increase in the Bank's normal work on a long term basis it would review the overall strength in Class IV cadre at the centre concerned in the normal course.\"\n45.  One of the terms, therefore, postulates that regular full time or part time Ticcas whether in regular full time or part time employment who have rendered continuous service of three years or more as on 19th November, 1992 were entitled to be considered for absorption in the additional posts that were required to be created by reason of such settlement. Such settlement had been arrived having regard to the fact that the same Ticca Mazdoors had been working for a long time.\n46.  Absorption of the Ticca Mazdoors in the services of the Appellant was not automatic. The concerned workmen were required to fulfill the conditions laid down therefor.\n47.  Would by reason of the order of reinstatement, the status of the Respondents change is, the question.\n48.  In law, 240 days of continuous service by itself does not give rise to claim of permanence. Section 25F provides for grant of compensation if a workman is sought to be retrenched in violation of the conditions referred to therein. [See Maharashtra State Cooperative Cotton Growers' Marketing Federation Ltd. 1994 Indlaw SC 1275 (supra). See also Madhyamik Siksha Parishad, U.P. Vs. Anil Kumar Mishra and others, etc., AIR 1994 SC 1638] 1992 Indlaw SC 1292\nIn A. Umarani (supra), this Court held:\n\"Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any \"State\" within the meaning of Art. 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. Vs. Suresh Kumar Verma and Another, (1996) 7 SCC 562) 1996 Indlaw SC 3143.\"\n49.  Yet again, in Executive Engineer, ZP Engg. Divn. And Another Vs. Digambara Rao and Others [(2004) 8 SCC 262 2004 Indlaw SC 823] this Court held:\n\"It may not be out of place to mention that completion of 240 days of continuous service in a year may not by itself be a ground for directing an order of regularization. It is also not the case of the Respondents that they were appointed in accordance with the extant rules. No direction for regularization of their services was, therefore, could be issued.\"\n50.  Furthermore, a direction for reinstatement for non-compliance of the provisions of Section 25F of the Industrial Disputes Act would restore to the workmen the same status which he held when terminated. The Respondents would, thus, continue to be Ticca Mazdoors, meaning thereby their names would continue in the second list. They had worked only from April, 1980 to December, 1982. They did not have any right to get work. The direction of continuity of service per se would not bring them within the purview of terms of settlement. Even in the case of a statutory corporation in S.G. Kotturappa 2005 Indlaw SC 144 (supra), this Court observed:\n\"It is not a case where the Respondent has completed 240 days of service during the period of 12 months preceding such termination as contemplated under Section 25-F read with Section 25-B of the Industrial Disputes Act, 1947. The Badli workers, thus, did not acquire any legal right to continue in service. They were not even entitled to the protection under the Industrial Disputes Act nor the mandatory requirements of Section 25-F of the Industrial Disputes were required to be complied with before terminating his services, unless they complete 240 days service within a period of twelve months preceding the date of termination.\"\nIt was further held:\n\"The terms and conditions of employment of a Badli worker may have a statutory flavour but the same would not mean that it is not otherwise contractual. So long as a worker remains a Badli worker, he does not enjoy a status. His services are not protected by reason of any provisions of the statute. He does not hold a civil post. A dispute as regard purported wrongful termination of services can be raised only if such termination takes place in violation of the mandatory provisions of the statute governing the services. Services of a temporary employee or a badli worker can be terminated upon compliance of the contractual or statutory requirements.\"\n51.  Mr. Phadke, as noticed hereinbefore, has referred to a large number of decisions for demonstrating that this Court had directed reinstatement even if the workmen concerned were daily wagers or were employed intermittently. No proposition of law was laid down in the aforementioned judgments. The said judgments of this Court, moreover, do not lay down any principle having universal application so that the Tribunals, or for that matter the High Court, or this Court, may feel compelled to direct reinstatement with continuity of service and backwages. The Tribunal has some discretion in this matter. Grant of relief must depend on the fact situation obtaining in a particular case. The industrial adjudicator cannot be held to be bound to grant some relief only because it will be lawful to do so.\n52.  In Haryana State Coop. Land Dev. Bank Vs. Neelam [JT 2005 (2) SC 600] 2005 Indlaw SC 175, this Court observed:\n\"It is trite that the courts and tribunals having plenary jurisdiction have discretionary power to grant an appropriate relief to the parties. The aim and object of the Industrial Disputes Act may be to impart social justice to the workman but the same by itself would not mean that irrespective of his conduct a workman would automatically be entitled to relief. The procedural laws like estoppel, waiver and acquiescence are equally applicable to the industrial proceedings. A person in certain situation may even be held to be bound by the doctrine of Acceptance Sub silentio.\"\nOTHER CONTENTIONS:\n53.  We have noticed hereinbefore that the Appellant herein raised a specific plea denying or disputing the claim of the Respondents that they had completed 240 days of work. Such a plea having been raised both before the Industrial Tribunal as also before the High Court, we cannot accept that the Appellant had abandoned such a plea. Even in this Special Leave Petition, it is contended:\n\"(3) For that the High Court ought to have held that the disengagement of the Ticca Mazdoors (Respondents), who were daily wage casual workers, did not involve any retrenchment and as such there was no question of reinstatement of Respondents will full backwages from 23.7.1993.\"\n54.  The contention of Mr. Phadke that they have abandoned the said plea cannot be accepted. Similarly, the contention of Mr. Phadke raised before us that the order passed by the Division Bench was a consent order is unacceptable. The Division Bench does not say so. Such a contention has been raised only on the basis of a statement made by the Respondents in the Counter-affidavit wherein the reference had been made to one order of the Division Bench asking the parties to make endeavour for settlement. The Respondents contend that the order of the Division Bench is virtually a consent order. No settlement admittedly had been arrived at. A party to the lis, in absence of a statutory interdict, cannot be deprived of his right of appeal. The High Court has passed the judgment upon consideration of the rival contentions raised at the Bar. It arrived at specific findings on the issues framed by it. It has, for the reasons stated in the impugned judgment, affirmed the findings of the Industrial Tribunal as also the learned Single Judge. The impugned order of the Division Bench, in our opinion, by no stretch of imagination, can be said to have been passed with consent of the parties.\nHowever, we agree with the opinion of the Tribunal that the plea of abandonment of service by the Respondents in the facts and circumstances of the case was wholly misconceived.\nCONCLUSION:\n55.  For the reasons, aforementioned, the impugned judgments cannot be sustained which are accordingly set aside. The appeals are allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.\nAppeals allowed.\n"}
+{"id": "UnAvwSWJfd", "title": "", "text": "Municipal Council, Sujanpur v Surinder Kumar\nSupreme Court of India\n\n5  May  2006\nAppeal (civil) 2474 of 2006 (Arising out of S.L.P.(C ) No. 17977 of 2004)\nThe Judgment was delivered by: S. B. Sinha, J.\nLeave granted.\n1.  The appellant herein being aggrieved by and dissatisfied with the judgment and order dated 29.4.2004 passed by a Division Bench of the Punjab and Haryana High Court at Chandigarh in Civil Writ Petition No. 4988 of 2002 affirming the award dated 22.11.2001 of the Labour Court, Gurdaspur is before us. It is not in dispute that the Appellant herein is a statutory body and being a local authority, governed by the Punjab Municipal Act. The terms and conditions of service, including recruitment of its employees, are governed by statutory rules.\n2.  The respondent herein was appointed on 1.4.1994. He continued to work up to 31.7.1996. His services were terminated on 16.7.1997 by issuing a notice of termination. Questioning the validity and legality thereof, an industrial dispute was raised which culminated in a reference made by the appropriate governments under Industrial Disputes Act ('the Act') in exercise of its power u/s. 10 (1)(c) thereof the following dispute to the Labour Court, Gurdaspur:\n\"Whether termination of services of Shri Surinder Kumar, workman is justified and in order? If not, to what/exact amount of compensation is he entitled?\"\n3.  A plea was raised in the said proceedings on behalf of the appellant herein that the respondent was appointed on a supervisory post and, thus, was not a 'workman' within the meaning of S. 2(S) of the Act.\n4.  It is not in dispute that the respondent was appointed on daily wages. Before the Labour Court, the appellant raised a plea that the respondent was appointed on the post of Supervisor, on the recommendation of one Shri R.S. Puri, M.L.A., Sujanpur and then a Minister in the Government of Punjab. The Labour Court by reason of the impugned award, inter alia, held that although the second respondent was appointed with the designation of a Supervisor and was expected to look after the development work being carried out by the appellant and other construction works under the Nehru Rojgar Yojana, he was merely discharging the duties of a workman.\n5.  It was held by the Labour Court that the respondent completed 240 days of work within a period of twelve months preceding his termination. The Labour Court proceeded on the basis that the workman having completed 240 days of work in a calendar year, it was the bounden duty of the Appellant to produce the entire relevant records but the same had not been done. It is not in dispute that the attendance records of March 1994 and from April 1994 to February 1996 were produced but the attendance registers from March 1996 onwards were not produced. It, however, does not appear from the impugned award that the respondent had called for the records from the office of the appellant.\n6.  The Labour Court upon arriving at a finding that in terminating the services of the respondent, the appellant had not complied with the statutory requirements contained in Section 25F of the Industrial Disputes Act as no compensation had been paid to him in terms thereof, the respondent shall be directed to be reinstated in service with full back wages and allied benefits from the date of termination i.e. July 1997 till actual reinstatement. A writ petition filed before the High Court by the appellant herein against the said award was dismissed.\n7.  Before the High Court, a specific plea was raised by the Appellant that the initial appointment of the respondent was contrary to the recruitment rules. The High Court's attention was further drawn to the fact that the respondent was appointed in a Supervisory capacity to look after the construction work of the MC building and other construction works under the Nehru Rojgar Yojana.\n8.  The High Court, however, rejected the said contentions of the Appellant relying on or on the basis of the findings of the Labour Court that the work for which the respondent was appointed had been existing. It opined that its jurisdiction in the matter of issuing a writ of certiorari is limited. It further refused to go into the question as regards the payment of entire back wages stating that the appellant herein had neither pleaded nor produced any evidence to show that the respondent was gainfully employed after termination of his service.\n9.  The High Court's jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In the Judicial Review of Administrative Action, IVth edition p.136, S.A De Smith has summed up the position:\n\"The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, intelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence.\"\n[See also S.N. Chandrashekar and Anr. v. State of Karnataka and Ors. 2006 (2) SCALE 248 2006 Indlaw SC 40 and Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group & Ors., 2006 (3) SCALE 1 2006 Indlaw SC 1611].\n10.  The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. [See U.P. State Brassware Corporation & Ors. v. Udit Narain Pandey, JT 2005 (10) SC 344 2005 Indlaw SC 806 and State of M.P. v. Arjan Lal Rajak, (2006) 2 SCC 6102006 Indlaw SC 260].\n11.  Equally well settled is the principle that the burden of proof, having regard to the principles analogus to S. 106 of the Evidence Act that he was not gainfully employed, was on the workman. [See Manager, Reserve Bank of India, Bangalore v. S. Mani & Ors., (2005) 5 SCC 100 2005 Indlaw SC 216]\n12.  It is also a trite law that only because some documents have not been produced by the management, an adverse inference would be drawn against the management. [See S. Mani 2005 Indlaw SC 216 (supra)]\n13.  Apart from the aforementioned error of law, in our considered opinion, the Labour Court and consequently the High Court completely misdirected themselves insofar as they failed to take into consideration that relief to be granted in terms of Section 11A of the said Act being discretionary in nature, a Labour Court was required to consider the facts of each case therefor. Only because relief by way of reinstatement with full back wages would be lawful, it would not mean that the same would be granted automatically.\n14.  For the said purpose, the nature of the appointment, the purpose for which such appointment had been made, the duration/tenure of work, the question whether the post was a sanctioned one, being relevant facts, must be taken into consideration.\n15.  It is not disputed that the appointment of the respondent was not in a sanctioned post. Being a 'State' within the meaning of Art. 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of the Constitutional scheme enshrined u/arts. 14 and 16 of the Constitution of India would be void in law. [See M.V. Bijlani v. Union of India & Ors., (2006) 4 SCALE 147 2006 Indlaw SC 122, State of Punjab v. Jagdip Singh & Ors., 1964 (4) SCR 964 1963 Indlaw SC 314 and Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCALE 1972006 Indlaw SC 125].\n16.  If a post is not a sanctioned one, again, appointment therein would be illegal. In M.P. Housing Board & Anr. v. Manoj Shrivastava [(2006) 2 SCC 702 2006 Indlaw SC 259], this Court stated the law in the following words:\n\"A person with a view to obtain the status of a \"permanent employee\" must be appointed in terms of the statutory rules. It is not the case of the respondent that he was appointed against a vacant post which was duly sanctioned by the statutory authority or his appointment was made upon following the statutory law operating in the field.\nThe Labour Court unfortunately did not advert to the said question and proceeded to pass its award on the premise that as the respondent had worked for more than six months satisfactorily in terms of cl. 2(vi) of the Standard Standing Orders, he acquired the right of becoming permanent. For arriving at the said conclusion, the Labour Court relief only upon the oral statement made by the respondent.It is one thing to say that a person was appointed on an ad hoc basis or as a daily-wager but it is another thing to say that he is appointed in a sanctioned post which was lying vacant upon following the due procedure prescribed therefor.\nIt has not been found by the Labour Court that the respondent was appointed by the appellant herein, which is \"State\" within the meaning of Art. 12 of the Constitution, upon compliance with the Constitutional requirements as also the provisions of the 1972 Act or the Rules and Regulations framed thereunder.\"\n17.  Yet again, in Haryana State Agricultural Marketing Board v. Subhash Chand & Anr. [(2006) 2 SCC 794 2006 Indlaw SC 329], this Court held:\n\"In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd Edn., Vol. 4 at p. 4470, the expression \"status\" has been defined as under:\n\"Status\" is a much discussed term which, according to the best modern expositions, includes the sum total of a man's personal rights and duties (Salmond, Jurisprudence 253, 257), or, to be verbally accurate, of his capacity for rights and duties. (Holland, Jurisprudence 88)\nThe status of a person means his personal legal condition only so far as his personal rights and burdens are concerned. Duggamma v. Ganeshayya, AIR at p.101 [Evidence Act (1 of 1872), Section 41]\nIn the language of jurisprudence 'status' is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. (Roshan Lal Tandon v. Union of India).\nThe word \"privilege\" has been defined, at p. 3733, as under:\nPrivilege is an exemption from some duty, burden, or attendance to which certain persons are entitled; from a supposition of law, that the stations they fill, or the offices they are engaged in, are such as require all their care; that therefore, without this indulgence, it would be impracticable to execute such offices, to that advantage which the public good requires. A right or immunity granted as a peculiar benefit; advantage or favour; a peculiar or personal advantage or right, especially when enjoyed in derogation of a common right.\n* * *\nImmunity from civil action may be described also as a privilege, because the word 'privilege' is sufficiently wide to include an immunity. The word 'privilege' has been defined as a particular and peculiar benefit or advantage enjoyed by a person .. 'Privileges' are liberties and franchises granted to an offence, place, town or manor, by the King's great charter, letters patent, or Act of Parliament.\nIn view of the aforementioned definitions of the expressions \"status\" and \"privilege\" it must be held that such \"status\" and \"privilege\" must emanate from a statute. If legal right has been derived by the respondent herein to continue in service in terms of the provisions of the Act under which he is governed, then only, would the question of depriving him of any status or privilege arise. Furthermore, it is not a case where the respondent had worked for years. He has only worked, on his own showing, for 356 days whereas according to the appellant he has worked only for 208 days.\nTherefore, the Fifth Schedule of the Industrial Disputes Act, 1947 has no application in the instant case. In view of the above, the dispensing with of the engagement of the respondent cannot be said to be unwarranted in law.\"\n[See also BHEL v. B.K. Vijay & Ors., (2006) 2 SCC 654 2006 Indlaw SC 1529].\n18.  In the instant case, the respondent was appointed in violation of the rules. He was appointed at the instance of a Member of the Legislative Assembly who was a minister at the relevant time. No appointment could have been made at his instance. No authority howsoever high may be cannot direct recruitment of persons of his choice.\n19.  Having regard to the factual circumstances of this case, we are of the opinion that grant of monetary compensation would sub-serve the interests of justice.\n20.  We, therefore, allow the appeal and set aside the directions of the Labour Court and direct that in place of the respondent being reinstated with back wages, the Appellant would pay monetary compensation to him, quantified at Rs.50,000/-. We make no order as to costs.\nAppeal allowed.\n"}
+{"id": "z52Dm7tO4f", "title": "", "text": "Union of India and Others v Jaipal Singh\nSupreme Court of India\n\n3 November 2003\nAppeal (Civil) 8565 of 2003\nThe Order of the Court was as follows :\nLeave granted.\n1.  The above appeal has been filed against the order of the Division Bench of the High Court of Punjab and Haryana and Chandigarh dated 30.10.2001 in CWP No. 12929 of 1999 whereunder the Division Bench has allowed the writ petition filed by the respondents and granted relief, as prayed for, directing re-instalment of the respondent with full back wages and consequential benefits.\n2. The respondent was involved in a criminal case and he was charge-sheeted for an offence under Section 302 read with Section 34 of the IPC along with his brother and though he was convicted by the learned Additional Sessions Judge, Rewari for the same by a judgment dated 05.03.1997, on further appeal, before the High Court, the Division Bench of the High Court returned a verdict of acquittal.\n3. As a consequence thereof, since, he was not reinstated inspite of the order of acquittal, he moved the High Court and obtained orders, as noticed supra. Aggrieved, the appellants have come before this Court.\n4.  Heard Mr. Raju Ramachandran, learned Additional Solicitor General appearing for the appellants, who placed strong reliance upon the decision of this Court in [1996] 11 SCC 603 1996 Indlaw SC 1409: Ranchhodji chaturji thakore v. Superintendent engineer, gujarat electricity board, Himmatnagar (Gujarat) and Anr. 1996 Indlaw SC 1409 wherein this Court, in a case identical to the facts of the present case, has chosen to order only reinstatement but denied back-wages on the ground that the department was in noway concerned with the criminal case and, therefore, cannot be saddled with liability also for back wages for the period when he was out of service during/after conviction suffered by the respondent in the criminal case. Per contra, Mr. Ranbir Singh Yadav, learned counsel for the respondent sought to place reliance upon an order of this judgment of the very same High Court dated 19.07.2001 in CWP No. 10201 of 2000. Learned counsel for the respondent, by inviting our attention to the judgment of the High Court in that case contended that on facts the case on hand was also similar to the case considered therein but this Court dismissed the special leave petition when the relief granted for reinstatement and back wages was contested by the authorities before this Court.\n5.  On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefore does not constitute any declaration of law by this Court or constitute a binding precedent.\n6. Per contra, the decision relied upon for the appellant is one on merits and for reasons specifically recorded therefore and operates as a binding precedent as well.\n7. On going through the same, we are in respectful agreement with the view taken in [1996] 11 SCC 603 1996 Indlaw SC 1409 (supra).\n8. If prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and it after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well.\n9. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service.\n10. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent.\n11. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations.\n12. Consequently, the order of the High Court in so far as it directed payment of back wages are liable to be and is hereby set aside.\n13.  The respondent will be entitled to back wages from the date of acquittal and except for the purpose of denying the respondent actual payment of back wages, that period also will be counted as period of service, without any break.\n14. The re-instatement, if not already done, in terms of the order of the High Court will be done within thirty days from today.\nThe appeal is allowed and disposed of on the above terms.\nAppeal allowed\n"}
+{"id": "elKPoh3pKM", "title": "", "text": "Ranchhodji Chaturji Thakore v The Superintendent Engineer, Gujaratelectricity Board, Himma\nSupreme Court of India\n\n28 October 1996\nS.L.P. (C) No. 22538 of 1996 (CC No. 5509 of 1996)\nThe Order of the Court was as follows:\n1. Delay condoned.\n2. This case does not warrant interference for the reason that, admittedly, the petitioner was charged for an offence u/s. 302 read with 34 Indian Penal Code, 1860 for his involvement in a crime committed on October 1, 1986. The Sessions Judge had convicted the petitioner u/s. 302 read with 34 Indian Penal Code, 1860 and sentenced him to undergo imprisonment for life. On that basic the respondents had taken action to have him dismissed from service since he was working as Junior Clerk in the respondent-Electricity Board. The petitioner challenged the validity of the dismissal order by way of a special civil application filed u/art. 226 of the Constitution. Pending disposal, the Division Bench of the High Court by its judgment dated October 14, 1992 acquitted him of the offence.\n1. Consequently, while disposing of the writ petition, the learned single judge directed the respondent to reinstate him into the service with continuity of the service, but denied back wages. The petitioner then filed letters Patent Appeal No.319/93 which was dismissed by the impugned order dated August 26, 1993. Thus, this special leave petition.\n3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the c rime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties.\n2. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single judge and the Division Bench have not committed any error of law warranting interference.\n4. The special leave petition is accordingly dismissed.\nPetition dismissed.\n"}