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+Masud Khan v State Of Uttar Pradesh
+Supreme Court of India
+
+26 September 1973
+Writ Petition No. 117 of 1973
+The Judgment was delivered by : A. Alagiriswami, J.
+1.  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).
+2.  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.
+3.  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.
+4.  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.
+5.  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.
+6.  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.
+7.  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:
+"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."
+It 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)
+Divon, J.
+8.  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."
+"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."
+Here 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.

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+Prabhakaran Nair, Etc. v State Of Tamil Nadu And Ors.
+Supreme Court of India
+
+3 September 1987
+Writ Petition No. 506 of 1986
+The Judgment was delivered by: Sabyasachi Mukharji, J.
+1.  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).
+2.  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.
+3. 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.
+4.  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.
+5.  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:-
+" 14. Recovery of possession by landlord for repairs or for reconstruction.
+(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-
+(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
+(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.
+(2) No order directing the tenant to deliver possession of the building under this section shall be passed-
+(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
+(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.
+(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).
+(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).
+(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."
+6.  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:
+"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."
+7.  In this connection s. 30 which exempts certain buildings may be referred to and sub-section (i) is important. It reads as follows:
+"30. Exemption in the case of certain buildings- Nothing contained in this Act shall apply to-
+(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
+(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)."
+8.  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.
+9.  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.
+10.  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.
+11. 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.
+12. 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.
+13.  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.
+14. 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.
+15.  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.
+16.  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.
+17.  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.
+18.  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.
+19. 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.
+20.  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.
+21.  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.
+22.  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.
+23.  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.
+24. 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.
+25.  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:-
+"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."
+26.  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.
+27.  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.
+28.  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.
+29.  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.
+30.  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).
+31. 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.
+32.  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.
+However, 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.
+Further, 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.
+Courts are not concerned with the unwisdom of legislation.
+"In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review.".
+33. 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.
+34. 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.
+The Court observed at pages 226to227 of the report as under:
+"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."
+35.  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:
+" 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."
+36.  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.
+37.  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.
+38. 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.
+39.  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.
+40.  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.
+41. 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.
+42.  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.
+43.  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.
+44.  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.
+45. 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.
+46.  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.
+Petition dismissed

Object_casedocs/C100.txt

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+Hiten P. Dalal v Bratindranath Banerjee
+Supreme Court of India
+
+11 July 2001
+Appeal (Cr.) 688 of 1995
+The Judgment was delivered by : Ruma Pal, J
+1. 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.
+2. 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:
+"... ... ... 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 :
+'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.'
+Having held so in the later part of the said paragraph the Lordships have come to the conclusion:
+'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:
+Such offence must relate to transactions in securities; and
+Such offence should be alleged to have been committed between 1April 1991 and on or before 6 June 1992'.
+This 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."
+The matter was thereafter placed before this Bench and heard.
+3. 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.
+the 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."
+4. 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:
+"....... Any offence relating to transactions in securities after the 1 day of April 1991 and on and before 6th June 1992....."
+5. 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.
+6. 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 :
+"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."
+7. 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 -
+"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."
+8. 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
+"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."
+9. 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.
+While reaching its conclusion, the Court observed:
+" ................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."
+10. 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 :
+"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:
+Such 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."
+11. 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.
+12. 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.
+13. 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.
+14. 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.
+15. 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
+16. 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.
+17. 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......"
+[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.]
+18. 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.
+19. 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.
+20. 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.
+21. 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.
+22. 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.
+23. 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.
+24. 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.
+25. 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.
+26. 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.
+27. 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.
+As said by the Special Court :
+"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."
+28. 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.
+29. 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.
+30. 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/-.
+Appeal dismissed.

Object_casedocs/C1000.txt

@@ -0,0 +1,33 @@
+Ashok Kumar and Others v State of Tamil Nadu
+Supreme Court of India
+
+5  May  2006
+Appeal (Crl.) 1533 of 2004
+The Judgment was delivered by : S. B. Sinha, J.
+1.  The appellants herein, namely, Ashok Kumar, Sankar and Babu (in Criminal Appeal No. 1533 of 2004) and Selvakumar (in Criminal Appeal No. 1174 of 2005) (A-1, A-3, A-4 and A-2 respectively) along with their father Chakravarti Nayinar (A-5), mother Gunasekariammal (A-7) and uncle Rajan (A-6) stood trial for commission of offences under Sections 147, 148, 341, 447, 302 read with Section 109 read with Section 149 of the Indian Penal Code (IPC), inter alia, for causing death of one Kumararaja. The accused as also the deceased Kumararaja were residents of Ammeri Village, Taluk Gingee. They had their agricultural lands in the said village. The accused were claiming share of the land belonging to said Kumararaja. They had allegedly been causing disturbances in the possession of the lands belonging to Kumararaja as a result whereof some criminal cases were pending against A-5 and A-6. A-5 and A-6 with a view to attend the said criminal cases left the village at about 6.00 a.m. on 29.10.1993. They had allegedly instructed the appellants before leaving the village to see that the deceased did not plough the land in question and if despite warning he would do so he should be killed. At about 8.30 a.m., the deceased Kumararaja went to the said land and began ploughing the same which was objected to by the appellants herein. He reported the matter to Elanchziyan (PW-1) and Devabalan (PW-2) who advised him to convene a Panchayat so that the dispute between the parties may be settled, in response whereto the deceased allegedly told them that the matter need not be referred to Panchayat as the land belonged to him.
+2. He had, therefore, requested both the said PWs to accompany him to the land in question and ask the appellants not to cause any obstruction in his ploughing the land. They complied with the said request of the deceased. Further case of the prosecution is that as soon as the deceased entered into the disputed land and tried to plough, Gunasekariammal (A-7) allegedly brought four Koduval knives and handed over each one of them to the appellants and instigated them to kill the deceased whereupon they attacked the deceased. The deceased fell down. PW-1 and PW-2 cried out seeing the incident whereupon they were also threatened. Thereafter, they ran away with the weapons. PW-1 and PW-2 came near the deceased and found Kumararaja dead. The village came within the jurisdiction of Valathi Police Station. It was situated at a distance of about 8 kms. from the village. PW-1 walked all the way to the Police Station. He reached the police station at about 11.30 a.m. At that time, Head Constable Ansar Sherif (PW-10) was present. He was although attached to Gingee Police Station, at the relevant point of time having been instructed by Inspector Mohan Doss Michael (PW-11), he was performing his duties at the Valathi Police Station. Head Constable (PW- 10) recorded the statement of PW-1. A copy of the First Information Report was sent to the Inspector (PW-11) who came to the scene of occurrence at about 12.30 p.m. In the meantime, PW-1 and PW-2 had also reached the place of occurrence. The statements of PW-1, PW-2 as also of those who were witnesses to Mahazar were recorded. Post-mortem examination on the dead body was conducted by Dr. Marimuthu (PW-9) on 30.10.1993.
+3.  The following injuries were found on the dead body of the deceased:
+(1) Incised wound (cut wound) across the top of the head, 15'x4'.0 in deep in brain, brain incised to about 1 cm depth, subdural haematoma about 100 cc on the left parietal area.
+(2) Oblique incised wound in the midline of the head 8' x 2' on brain deep.
+(3) Oblique incised wound on the right side parental area 17' x 2' x 1-1/2' cm.
+(4) Antere posterior incised wound on the left side involving 7x2x1 cm.
+(5) Antere posterior incised would on the right side frontal area, 4x1x1 cm.
+(6) Cut injury with clear margin on the left hand running through distal ends of the 2,3,4 & 5th bones removing (amputating) 2, 3, 4 & 5th bone. Skin is attached to main part of the hand.
+(7) Horizontal abrasion on the left shoulder 15x1 cm.
+(8) Abrasion on the left side neck 4x1 cm.
+(9) Abrasion on the back of right forearm 2x1 cm.
+4.  According to the doctor (PW-9), the injuries were ante-mortem in nature and were possible to have been caused by a sharp-edged knife or Koduval knife. Upon completion of the investigation, a charge sheet was filed against all the accused.
+5.  Before the learned Sessions Judge, inter alia, a plea was taken that another First Information Report had been lodged in regard whereto an entry had been made in the General Diary. However, the same had not been produced. The learned Sessions Judge upon consideration of the evidences brought on record including those of the eye-witnesses, namely, PW-1 and PW-2 found the prosecution case to have been proved beyond all reasonable doubt and recorded a judgment of conviction against all the accused persons. On an appeal being preferred before the High Court, the High Court did not believe that part of the prosecution case involving A-5 and A-6 who admittedly had left the village at 6.00 a.m. on 29.10.1993 as also that of A-7 who allegedly had come to the scene and distributed the weapons to the appellants herein. They were, therefore, acquitted. During the pendency of the appeal before the High Court, A-6 expired and his appeal thus was held to have abated. The appeal filed by the appellants herein before the High Court, however, was dismissed.
+6.  Mr. V Krishnamurthy, the learned counsel appearing on behalf of the appellants, in support of the appeals, inter alia, submitted that keeping in view the genesis of the occurrence it was obligatory on the part of the prosecution to prove that the land in question belonged to the deceased. Drawing our attention to the statements made by the Investigating Officer, the learned counsel would submit that admittedly no witness was examined to establish the ownership and possession of the deceased over the land in question and the prosecution cannot be said to have proved its case. It was further submitted that the General Diary having not been produced, which was called for by the appellants with a view to show that another Report had also been lodged prior to the lodging of the First Information Report by PW- 1 and the same having not been produced by the prosecution, an adverse inference ought to have been drawn by the learned courts below.
+7. Mr. Krishnamurthy urged that the prosecution has further not been able to prove that the Head Constable PW-10 who was admittedly attached to the Gingee Police Station, was at the relevant point of time asked by the Inspector PW- 11 to perform his duties at Valathi Police Station. It was furthermore contended that the High Court committed a serious error in placing reliance upon the evidence of PW-1 on the premise that he was a disinterested witness and had nothing to do with the dispute between the parties although it had been brought on record that the younger sister of the deceased was married to his sister's son. The learned counsel urged that in a case of this nature where the title of the land was disputed, the learned courts below should have considered the question as to whether in a situation of this nature the appellants could have exercised their right of private defence in regard to the property.
+8.  It is not in dispute that both the parties were related to each other, the deceased being a co-parcener of the appellants. It is furthermore not in dispute that the parties had been disputing over the ownership of the land. The appellants had been disputing the absolute ownership of the deceased in regard to the land in question on the ground that they were also co-owners thereof. PW-1 was, thus, related to both the parties. Nothing has been brought on record to show that he had anything to do with the land in question and for one reason or the other he would side with the deceased. It has also not been established that PW-1 was otherwise inimically disposed toward the accused. Both PW-1 and PW-2 made categorical statements to the effect that they had gone to the scene of occurrence with a view to prevent the appellants from causing obstructions to the ploughing of land by the deceased. They were requested to do so by the deceased. In fact, PW-1, as would appear from his evidence, advised the deceased to take the matter to the Panchayat so that the dispute between the parties could be resolved.
+9.  He did not pay any heed to his advice and insisted that he had a right to plough the land as the same belonged to him. PW-1, in his deposition, made detailed statements as to how and in what manner the deceased was attacked with knives by all the appellants. He had furthermore stated the manner in which the injuries were caused to the deceased by each one of them. He had also identified the weapons of assault in Court. The statements made by the said witness stand corroborated by the medical evidence. PW-2 also supported him in all material particulars. The fact that he was the author of the First Information Report is not disputed. Having found the deceased to have expired at the place of occurrence, he only went to his house for putting on his shirt and started for the police station. He had to walk 8 kms. Three hours must have been taken to reach the police station. It has further not been denied or disputed that the Investigating Officer (PW-11) reached the place of occurrence at about 12.30 p.m. on the same date and started investigation. The statement of PW-10 who recorded the First Information Report has also been taken by the Investigating Officer.
+10.  It may be true that the Investigating Officer might not have made any investigation as regards the ownership of the land, but from his evidence it is evident that he had been informed and proceeded on the basis that the land in question had been in possession of the deceased. The prosecution story is that the deceased had been ploughing the land and thus his possession thereover cannot be disputed. PW-11 had drawn a rough sketch which was marked as Ex. P.13. Sl. Nos. 1 to 7 of the said sketch indicate the land of the deceased and his brother Raj Kumar and Sl. No. 3 thereof indicates the place where the dead body was found being Survey No. 12/6. The learned trial Judge has categorically arrived at a finding that from the evidence on record it was established that the occurrence took place on the land of the deceased being Survey No. 12/6 in the centre of Kumararaja's Karambu land, Kumararaja's own land being situated on the West of that land and shown in Sl. No. 4 of the said sketch (Ex. P.13).
+11.  The Investigating Officer on the date of occurrence did not find the appellants in the village. They were arrested after a few days from another village. The appellants herein before the court below did not contend that they had been in possession of the land. If they intended to raise a right of private defence in regard to the property, it was for them to prove that they were in possession of the land and the deceased trespassed thereinto. No contention as regard the exercise of right of private defence in regard to their person had thus been or could be raised.
+12.  In Hafiz vs. State of U.P., (2005) 12 SCC 599 2005 Indlaw SC 861, this Court categorically observed :
+"It may be true that the right of private defence need not specifically be taken and in the event the court on the basis of the materials on record is in a position to come to such a conclusion, despite some other plea having been raised, that such a case had been made out, it may act thereupon. Mutually destructive defences taken by the accused persons would also go a long way to disbelieve their story "
+13.  The deceased was not armed and was all alone when he first started ploughing the land. Only when he was obstructed from doing so, he approached PW-1 and PW-2. Evidence of PW-1 appears to be natural. He is not only said to be an eye-witness, he walked all the way to the police station to lodge the First Information Report as public transport was not available. In the First Information Report, he categorically stated that PW-2 was also an eye-witness. The Investigating Officer (PW-11) had also found the injuries on the person of the deceased. Despite some minor contradictions, both the trial Judge and the High Court placed reliance upon the evidence of PW-1 and PW-2. We do not find any reason to differ with their opinion.
+14.  Submission of Mr. Krishnamurthy that another First Information Report was also lodged earlier, is based only on a suggestion made to PW- 10. PW-10, in his deposition, categorically denied that even before lodging the complaint Ex.P.1, another complaint was lodged at Valathi Police Station. It is true that the learned trial Judge had recorded a contention raised on behalf of the accused that despite an application having been filed by the accused, the prosecution had failed to produce Case Diary and General Diary relating to the date of occurrence of the Valathi Police Station. When however questioned, the learned counsel could not point out from the records of the case that any such application was filed by the accused or any order had been passed by the learned trial Judge calling for the General Diary from the police station.
+15. The question of drawing an adverse inference against the prosecution for non-production of the Case Diary or the General Diary would have arisen had the Court passed an order being satisfied that the prosecution intended to suppress some facts which were material for the purposes of arriving at the truth or otherwise of the prosecution case. If no such application had been filed and no order thereupon had been passed by the Court, the question of drawing any adverse inference against the prosecution would not arise. We have noticed hereinbefore that PW-10 made a categorical statement to the effect that prior to the lodging of the First Information Report, no other Report had been lodged. If that be so, the question of production of any document did not arise unless it had been pointed out by the accused with reference to the number or the person who made such report as to the existence or recording of any other case in the General Diary. Even no suggestion to that effect has been given to PW-1. We, therefore, have no hesitation to reject the said contention.
+16.  We are, for the reasons aforementioned, of the opinion that the learned trial Court and the High Court having considered the prosecution case from all angles, no case has been made out for our interference therewith. The appeals are, therefore, dismissed.
+Appeals dismissed

Object_casedocs/C1001.txt

@@ -0,0 +1,19 @@
+Ashok Dhingra v N.C.T. of Delhi
+Supreme Court of India
+
+3 March 2000
+Cr.A. No. 256 of 2000.
+The Order of the Court was as follows:
+Leave granted.
+1.  After hearing learned counsel for the appellant, Mr. Altaf Ahmed, learned Additional Solicitor General appearing for the respondent and Mr. M. S. Ganesh, learned Senior for the complainant, we pass the following order:
+2. The offence now alleged against the appellant is under sections 120-B, 420, 468, 471 and 506 of the Indian Penal Code. He is alleged to have cheated a Japanese National in a whopping sum exceeding Rs. 65 lacs. These are of course prima facie circumstances not entitling him to be released on bail.
+3.  But on the other side we noticed that he was in custody from 5-7-1999 to 10-12-1999 and, therefore, to continue to detain him during the pre-trial stage may not be in the interest of justice.  Therefore, we permit him to continue on bail as per the interim order passed by us on 10-12-1999, if he would abide by the following conditions:
+"1. He shall report at the office of the Crime Branch, Qutab Institutional Area, New Delhi on all alternative days between 4 p.m. and 6 p.m.;
+2. He will not leave the limits of the State of Delhi without permission from the trial Court;
+3. He shall surrender his passport within one week to the trial Court; and
+4. He shall not in any manner either intimidate or influence the witnesses or tamper with the evidence.
+3. If he is willing to abide by the above conditions, he should file an affidavit to that effect before the trial Court within two weeks from today.
+4. If the respondent-State finds for any valid reason that appellant is misusing his bail we permit the respondent to move for cancellation of the bail as provided u/s. 439(2) of the Criminal Procedure Code."
+4.  If the trial is to get delayed on account of the delay in apprehending the co-accused, it is open to the trial Court to split up the case as against this appellant and proceed therewith, so that, it can be disposed of as expeditiously as possible. If the trial is delayed on account of dilatory tactics adopted by the appellant, that itself can be treated as a ground for cancellation of bail.
+With these observations, this appeal is disposed of.
+Appeal disposed of.

Object_casedocs/C1002.txt

@@ -0,0 +1,38 @@
+Bridge and Roof Company (India), Limited, and Others v Union of India and Others
+Supreme Court of India
+
+11 September 1962
+Petition No. 62 of 1962
+The Judgment was delivered by : K. N. Wanchoo, J.
+1. The short question raised in this writ petition under Art. 32 of the Constitution is whether production bonus is included within the term "basic wages" as defined in s. 2(b) of the Employees' Provident Funds Act, No. 19 of 1952, (hereinafter referred to as the Act Writ Petition 64 of 1962 (The Jay Engineering, Works Limited v. The Union of India 1962 Indlaw SC 311) was heard along with this petition. In that writ petition a further question arose as to the nature of the production bonus scheme in force in that company and parties have been given time to file additional. Affidavits in that connection. What we say therefore: in the present case as to reduction bonus generally may not be taken necessarily to apply to the particular scheme in the case of writ petition No. 64 of 1962.
+2. The brief facts necessary for present purposes are these. Petitioner No. 1 (hereinafter' referred to as the Company) is a public limited company engaged in the manufacture of engineering goods, structural fabrication and rolling stock, and the Act applies to the Company. The Company has a production bonus scheme in force which provides for payment of production bonus over and above wages fixed by the major engineering award of 1958, published in the Calcutta gazette dated November 5, 1958, which governs 74 major engineering concerns in that region including the Company' That award is still in force and has fixed basic wages and dearness allowance on time rate basis for the entire major engineering industry.
+3. In addition to basic wages and dearness allowance payable under the award, the Company has two production bonus schemes one for the hourly rated workers and the other for the rest. It is unnecessary to go into the details of the two schemes; but the main feature of the two schemes is that production bonus begins to be paid on certain rates specified in the two schemes when the output reaches 5,000 tons per year and that no production bonus is paid when the output is less than 5,000 tons per year. It may be added that the scheme relating to the hourly rated workers has been revised from January 1, 1962 and the main feature of this revision is that the Scheme is now applicable to those workers on a quarterly basis. According to this revised scheme, production bonus begins when the output for the quarter reaches 1300 tons, and there is no production bonus if the output is below 1300 tons. In the case of other staff, the old scheme is still in force, though it is stated for the Company that negotiations are going on for revising the old scheme, presumably to bring it into line with the new scheme introduced for hourly rated workers since January 1, 1962.
+4. We may now briefly refer to the relevant provisions of the Act which require consideration. the Act provides by s. 5 for the introduction of Employees' Provident Fund Scheme for certain industries included in Schedule 1 to the Act. In consequence a Provident Fund Scheme was framed in September 1952 knows as the Employees Provident Funds Scheme, 1952, and it is applicable to the company. S. 6 of the Act provides for contribution by the employer and the employee to the provident fund and this contribution is 6- 1/4 per centum of the basic wages, dearness allowance end retaining allowance (if any) for the time being payable in the ease of both. S. 6 further provides for certain increased contribution; but we are not concerned with that in the present case. Basic wages" have been defined in s. 2(b) of the Act thus:
+"'Basic wages' means all emoluments which are earned by an employee while on duty or on leave with wages in accordance, with the terms of the contract of employment and which are paid or payable in cash to him, but does not include-
+The cash value of any food concession;
+Any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living), houserent allowance, overtime allowance bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment,
+Any presents made by the employer;"
+5. Further, s. 19A of the Act provides for the removal of difficulties and lays down that, if any difficulty arises in giving effect to the provisions of the Act,, and in particular, if any doubt arises as to certain matters including ,,whether the total quantum of benefits to which an employee is entitled has been reduced by the employer", the Central Government may by order, make such provision or give such direction, not inconsistent with the provisions of the Act, as appears to it to be necessary or expedient for the removal of the doubt or difficulty, and the order of the Central Government in such cases shall be final.
+6. It appears that difficulties and doubts arose on the question whether production bonus could be taken into account in calculating the contribution of 6-1/4 per centum under s. 6 of the Act, and the Central Government directed about the March 7, 1962 that the question whether production bonus should be liable to provident fund deduction under the Act had been re-examined by it and it had been decided that production bonus, payable as part of a contract of employment either at a flat, rate or at a rate linked to the quantum of work turned out satisfied the definition of "basic wages" under s. 2 (b) of the Act. The Company was further directed to effect recovery of provident fund contributions on production bonus without any farther delay and arrear contribution in this respect payable with effect from January 1, 1960, was also to be deposited in the statutory fund immediately. The present petition was thereafter filed in April 1962 and is directed against the decision of the Central Government which was duly communicated to the Company in March 1962.
+7. The main contention of the Company is that bonus without any qualification has been expected from the terra ", basic wages" in the definition in s. 2(b) of the Act. Therefore, all kinds of bonus whether it be profit bonus or production bonus or attendance bonus or festival bonus either as an implied condition of service or as a customary payment, are excluded from "basic wages". Farther, s.6 which provides for contribution only refers to basic wages, dearness allowance and retaining allowance (if any) and contributions have to be made at the appropriate rate on these three payments and not on bonus which is not included in s. 6 It is urged that when the Act was passed in 1952 the legislature was aware of the various kinds of bonus which were being paid by various Concerns in various industries and when it decided to exclude bonus without any qualification from the term "(basic wages" as defined in s. 2(b), it was not open to the Central Government to direct that production bonus should be included in basic wages for the purposes of contribution under s. 6. Besides this contention based on the interpretation of the word "bonus" in s. 2(b), it is further contended that if the word "bonus" therein excludes production bonus the provision would be unconstitutional as it would be hit by Art. 14 of the Constitution inasmuch as production bonus is not a general feature of all industrial concerns but has been introduced only in some. The result of including production bonus within basic wages would be that some concerns where production bonus prevails would be contributing to the provident fund at a much higher rate than others where no production bonus prevails.
+8. The petition has been opposed on behalf of the Union of India and also on behalf of the two trade unions, which are existing in the Company. It is contended for the respondents that wages are the price for labour and arise out of contract, and the use of the term "basic wages" merely indicates that a certain part of the total wages is being separated for certain purposes only. Therefore production bonus being in the nature of incentive wage must be included in the definition of the term "basic wages" in s. 2(b), as basic wages there defined are "all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash to him......... Therefore, production bonus being in the nature of an incentive wage is included in the terms "all emoluments" in the definition of "basic wages", for production bonus is earned by an employee while on duty in accordance with the terms of the contract of, employment. It is further submitted that when the word "bonus"' was "used in el. (ii) of the exceptions to s. 2(b), it only referred to profit bonus, as it was well established before 1952 that the use of the word "bonus" without any qualification referred to profit bonus only in industrial adjudications. Therefore, when cl. (ii) of the exceptions to s. 2(b) accepted "bonus" without any qualification it referred only to profit bonus and not to any other kind of bonus.
+9. The main question therefore that falls for decision is as to which of these two rival contentions is in consonance with s. 2 (b). There is no doubt that ",basic wages" as defined therein means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash. If there were no exceptions to this definition, there would have been no difficulty in holding that production bonus whatever be its nature would be included within these terms. The difficulty, however, arises because the definition also provides that certain things will not be included in the term "basic wages", and these are contained in three clauses. The first clause mentions the cash value of any food concession while the third clause mentions any presents made by the employer. The fact that the exceptions contain even presents made by the employer shows that though the definition mentions all emoluments which are earned in accordance with the terms of the contract of employment, care was taken to exclude presents which would ordinarily not be earned in accordance with the terms of the contract of employment. Similarly, though the definition includes "all emoluments" which are paid or payable in cash, the exception excludes the cash value of any food concession, which in any case was not payable in cash. The exceptions therefore do not seem to follow any logical pattern which would be in consonance with the main definition.
+10. Then we come to el. (ii). It excludes dearness allowance, house-rent allowance, overtime allowance, bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment. This exception suggests that even though the main part of the definition includes all emoluments which are earned in accordance with the terms of the contract of employment, certain payments which are in fact the price of labour and earned in accordance with the terms of the contract of employment are excluded from the main part of the definition of "basic wages". It is undeniable that the exceptions contained in cl. (ii) refer to payments which are earned by an employee in accordance with the terms of his contract of employment. It was admitted by counsel on both sides before us that it was difficult to find any one basis for the exceptions contained in the three clauses.
+11. It is clear however from cl. (ii) that from the definition of the word "basic wages" certain earnings were excluded, though they must be earned by employees in accordance with the terms of the contract of employment. Having excluded "dearness allowance" from the definition of "basic wages". a. 6 then provides for inclusion of dearness allowance for purposes of contribution. But that is clearly the result of the specific provision in s.6 which lays down that contribution shall be 6-1/4 per centum of the basic wages, dearness allowance and retaining allowance (if any). We must therefore try to discover some basis for the exclusion 987 in cl. (ii) as also the inclusion of dearness allowance and retaining allowance (for any). in s. 6. It seems that the basis of' inclusion in s. 6 and exclusion in cl. (ii) is that whatever is payable in all concerns' and is earned by all permanent employees is included for the purpose, of contribution under s. 6, but whatever is not payable by all concerns or may not be earned by all employees of a concern is excluded for the purpose of contribution.
+12. Dearness allowance (for examples is payable in all concerns either as an addition to basic wages or as a part of consolidated wages where a concern does not have separate dearness allowance and basic wage Similarly, retaining allowance is pay able to all permanent employees in all seasonal factories like sugar factories and is therefore included in a. 6; but house-rent allowance is not paid in many concerns and sometimes in the same concern it is paid to some employees but not to others, for the theory is that house-rent is included in the payment of basic wages plus dearness allowance or consolidated wages. Therefore, house-rent allowance which may not be payable to all employees of a concern and which is certainly not paid by all concern is taken out of the definition of "basic wages", even though the basis of payment of house rent allowance where it is paid is the contract of employment. Similarly, overtime allowance though it is generally in force in all concerns is not earned by all employees of a concern.
+13. It is also earned in accordance with the terms of the contract of employment; but because it may not be earned by all employees of a concern it is excluded from, basic wages". Similarly, commission or any other similar allowance is excluded from the definition of "basic wages" for commission and other allowances are not necessarily to be found in all concerns; nor are they necessarily earned by all employees of the same concern, though where they exist they are earned in accordance with the terms of the contract of employment. It seems therefore that the basis for the exclusion in cl. (ii) of the exceptions in s. 2 (b) is that all that is not earned in all concerns or by all employees of concern is excluded from basic wages.
+14. To this the exclusion of dearness allowance in cl. (ii) is an, exception. But that exception has been corrected by including dearness allowance in s. 6 for the purpose of contribution. Dearness allowance which is an exception in, the definition of "basic wages" is included for the purpose of contribution by s. 6 and the real exceptions therefore in el. (ii) are the other exceptions beside dearness allowance, which has been included through s. 6.
+15. This brings us to the consideration of the question of bonus, which is also an exception in el. (ii). Now the word "bonus" has been used in this clause without any qualification. Therefore, it would not be improper to infer that when the word "bonus" was used without any qualification in the clause, the legislature had in mind every kind of bonus that may be payable to an employee. It is not disputed on behalf of the respondents that bonuses other than profit bonus were in force and well-known before the Act came to be passed in 1952. For example, the Coal Mines Provident Fund and Bonus Schemes Act, No. 46 of 1948, provided for payment of bonus depending on attendance of employees during any period. Besides the attendance bonus, four other kinds of bonus had been evolved under industrial law even before 1952 and were in force in various concerns in various industries.
+16. There was first production bonus, which was in force in some concerns long before 1952 (see Messrs. Titaghur Paper Mills Co. Limited v. Its Workmen), [1959] Supp. 2 S.C.R. 1012 1959 Indlaw SC 84. Then there was festival or puja bonus which was in force as an implied term of employment long before 1952 (see Messrs. Ispahani Limited Calcutta v. Ispahani Employees' Union, [1960] 1 S.C.R. 24.). 1959 Indlaw SC 97 Then there was customary bonus in connection with some festival (see The Graham Trading Co. (India) Limited v. Its Workmen), [1960] 1 S. C. R. 107 1959 Indlaw SC 99. And lastly, there was profit bonus the principles underlying which and the determination of whose quantum were evolved by the Labour Appellate Tribunal in the Mill owners' Association v. The Rashtriya Mill Mazdoor Sangh, Bombay, [1950] I.L.J. 1247.
+17. The legislature therefore could not have been unaware that these different kinds of bonus were being paid by different concerns in different industries, when it passed the Act in 1952. Therefore, unless the contention on behalf of the respondents that bonus when it was used without qualification can only mean profit bonus is sound, it must be held that when the legislature used the term "bonus" without any qualification in cl. (ii) of the exception in s. 2 (b), it must be referring to every kind of bonus which was prevalent in the industrial field before 1952. The contention therefore of the respondents that when the term "bonus" was used in industrial law before 1952 without any qualifying term it meant only profit bonus and nothing else, requires careful consideration."
+18. We do not think however that this contention is well founded. It is true, as will appear from the terms of reference in various cases of profit bonus that the word "profit" was not used as a qualifying word before the word "bonus" in such cases. It may also be that in many cases where a particular type of bonus was in dispute, say, attendance or "puja bonus, the qualifying word "attendance" or "puja" was use in references. But it appears that where was in connection with profit bonus, the usual practice was to make the reference after qualifying the word bonus" by the year for which the profit bonus was claimed. For example, we may refer to the case of Mill owners' Association Bombay v. The Bashtrya Mill Mazdoor Sangh, (1950) L.L.J. 1247. The term of reference in Reference No. 1 of 1948 (Mill owners' Association Bombay v. The Employees in the Cotton Textile Mills Bombay) in these terms-
+"Re: Bonus for the year 1947"
+19. It seems therefore that when reference was with respect to profit bonus, the term "bonus" though not qualified by the word "profit" bad always been limited by specifying the year for which the bonus was being claimed. Though, therefore, it may be true that literally speaking, the word ", profit" was not used to qualify the word "'bonus" when references were made with respect to profit bonus, the matter was put beyond controversy that the use of the word "bonus" without any qualification was with reference to profit bonus by adding the year for which the bonus was being claimed. It would therefore be not right to say that in industrial adjudications before 1952, bonus without any qualifying word meant profit bonus and nothing else. Further though the word "profit" was not used to qualify the word "bonus", the intention was made quite clear when profit bonus was meant by using the words "for the year so and Sol# after the word "bonus".
+20. We are therefore not prepared to accept that where the word "bonus" is used without any qualification it only means profit bonus and nothing else. On the other hand, it seems to us that the use of the word "bonus" without any qualifying word before it or without any limitation as to year after it must refer to bonus of all kinds known to industrial law and industrial adjudication before 1952. The reason for the exclusion of all kinds of bonus is also in our opinion the same which led to the exclusion of house rent allowance, overtime allowance, commission and any other similar allowance, namely, that payment of bonus may not occur in all industrial concerns or it may not be made to all employees of an industrial concern (as, for example, attendance bonus) and that is why bonus of all kinds was also excluded from the definition of the term "basic wages".
+the Act is an All-India Act applicable to all industries mentioned in Sch. I and to all concerns engaged in those industries; and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude from the wide definition of, basic wages" given in the opening part, all such payments which would not be common to all industries or to all employees in the same concern. We have already. Pointed out that to this principle, only dearness allowance in cl. (ii) is an exception; but that exception has been corrected by the inclusion of dearness allowance in s.6. We are therefore of opinion that there is no reason why when the, word "bonus" is used in el. (ii) without any qualifying word, it should not be interpreted to include all kinds of bonus which were known to industrial adjudication before 1952 and which must therefore be deemed to be within the knowledge of the legislature.
+21. This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract, and that whatever is the price for labour and arises out of contract, was intended to be included in the definition of "basic wages" in s.2 (b), and that only those things, were excluded which were a reward for labour not arising out of the contract of employment but depending on various other considerations like profit or attendance. It may be, as we have pointed out earlier, that if there were no exceptions to the main part of the definition in s.2(b), whatever was payable in cash as price for labour and arose out of contract would be included in the term "basic wages", and that reward for labour which did not arise out of contract might not be included in the definition. But the main part of the definition is subject to exceptions in cl. (ii), and those exceptions clearly show that they include even the price for labour.
+22. It is therefore not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is include 1 in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would be included. This court had occasion to consider production bonus in Messrs. Titaghur Paper Mills Co. Ltd. v. Its Workmen, [1959] Supp 2 S. C.R. 10 12 1959 Indlaw SC 84. It was pointed out that "the payment of production bonus depends upon production and is in addition to wages. In effect, it is an incentive to higher production and is in the nature of an incentive wage".
+23. Rho straight piece rate plan where payment is made according to each piece produced is the simplest of incentive wage plans. In a straight piece rate plan, payment is made according to each piece produced and there is no minimum and the worker is free to produce as much or as little as he likes, his payment depending upon the number of pieces produced. But in such a case payment for all that is produced would be basic wage as defined in s. 2(b) of the Act, even though the worker is working under an incentive wage plan. The difficulty arises where the straight piece rate system cannot work as when the finished product is the result of the co-operative effort of a large number of workers each doing a small part which contributes to the result. In such a case the system of production bonus by tonnage or by any other standard is introduced. The core of such a plan is that there is a base or a standard above which extra payment is earned for extra production in addition to the basic wages which is the payment for work up to the base or standard.
+24. Such a plan typically guarantees time wage up to the time represented by standard performance and gives workers a share in a savings represented by superior performance. The scheme in force in the Company is a typical scheme of production bonus of this kind with a base or standard up to which basic wages as time wages are paid and thereafter extra payments are made for superior performance. This extra payment may be called incentive wage and is also called production bonus. In all such cases however the workers are not bound to produce anything beyond the base or standard that is set out.
+25. The performance may even fall below the base or standard but the minimum basic wages will have to be paid whether the base or standard is reached or not. When however the workers produce beyond the base or standard what they earn is not basic wages but production bonus or incentive wage. it is this production bonus which is outside the definition of "basic wages" in s. 2 (b), for reasons which we have already given above. The production bonus in the present case is a typical production bonus scheme of this kind and whatever therefore is earned as production bonus is payable beyond a base or standard and it cannot form part of the definition of "basic wages" in s. 2 (b) because of the exception of all kinds of bonus from that definition. We are therefore of opinion that production bonus of this type is excluded from the definition of "basic wages" in P. 2 (b) and therefore the decision of the Central Government, which was presumably under s. 19A of the Act, to remove the difficulty arising a out of giving effect to the provisions of the Act, by which such a bonus has been included in the definition of "basic wages" is incorrect. In view of this decision, it is unnecessary to consider the effect of Art. 14 in the present case
+26. We therefore allow the petition and hold that production bonus of the typical kind in force in the Company is accepted from the term "basic wages" and therefore the decision of the Central Government communicated to the Company on March 7, 1962, that provident fund contributions must also be made on the production bonus earned by the employees in 'his Company, must be set aside. As this petition was heard along with petition No.64 of 1962 and the main arguments were in that petition, we order parties to bear their own costs.

Object_casedocs/C1003.txt

@@ -0,0 +1,59 @@
+Main Pal v State of Haryana
+Supreme Court of India
+
+7 September 2010
+Cr.A. No. 1696 of 2010 Arising out of S.L.P. (Cr.) No. 4624 of 2010]
+The Judgment was delivered by: R. V. Raveendran, J.
+Leave granted.
+1.  An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi. She stated that on the night of 22/23.3.1996, while she and her daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM, the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time, no male member was present in the house except the children; that around 00.30 AM the appellant again came into her house and touched her daughter-in-law Sheela Devi who woke up and raised an alarm; and that the appellant immediately ran away. The police investigated into the said complaint and submitted a report u/s. 173 of the Code of Criminal Procedure (for short 'the Code'). On that basis, the following charge was framed by the Judicial Magistrate, First Class, Karnal, against the appellant -
+"That on 23.3.1996, after having made preparation for causing hurt or assault, you committed house trespass into the house of Smt. Prakashi Devi, and thereby committed an offence punishable u/s. 452 IPC within my cognizance. Secondly on the same date, time and place, you assaulted and used criminal force against abovenamed Prakashi Devi with intent to outrage her modesty and thereby committed an offence punishable u/s. 354 IPC and within my cognizance. And I hereby direct that you be tried on the above said charge by this court."
+(Emphasis supplied)
+2. When the said charged was read over and explained to the appellant, he pleaded not guilty to the said charge and claimed trial.
+3.  Prakashi Devi was examined as PW-1. She reiterated what was recorded in the FIR, that the appellant came into the house around 11.30 PM and broke the bulbs, that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm, the appellant ran away. In her cross-examination, Prakashi Devi stated that she has five sons; that only her husband and one son named Mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night, her husband was away in the fields and her son Mahavir was also not present in the house. However, when confronted with her statement recorded in the FIR, she admitted having stated that when the appellant had come first time at around 11.30 PM and broke the outside bulbs, her son woke up and went out of the house. She also admitted that the appellant did not touch her nor teased her nor abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and stated that she was married to one Jaibir who worked in the military services; that at 11 to 11.30 PM the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; that again he came around 00.30 AM by scaling the door and caught her hand; and that when she raised an alarm and when her mother-in-law woke up, he ran away.
+4. It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing, only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brothers and their sons. Both PW1 and PW2 stated that the house of the accused was at a distance of 15-16 houses from the house of Prakashi Devi; that the accused had never come into their house earlier; that their family and the accused were not on visiting terms with each other even during functions, marriages or death, though they were on visiting terms with others in the village. PW 2 also stated that she did not know the particulars of the dispute between the accused and her in-laws. The investigating officer was examined as PW-3. The accused examined a witness Ex-Sarpanch of the village as DW-1 and he stated that there was a quarrel between the accused and complainant's son Surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman.
+5.  The learned Magistrate by judgment dated 2.2.2001, held the accused guilty of offences u/ss. 452 and 354 Cr.PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/- in default thereof simple imprisonment for one month. The appeal filed by the accused was dismissed by the Addl. Sessions Judge on 20.2.2002. The criminal revision filed by the appellant was disposed of by the High Court on 16.3.2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment. That order is challenged by the accused.
+6.  One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi. He contended that as the charge levelled against him was not proved, and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of Sheela Devi, he ought to have been acquitted. This was negatived by the appellate court and High Court holding that an accused cannot take advantage of a technical defect in framing the charge. It was held that mentioning the name of Prakashi Devi instead of the name of Sheela Devi in the charge was an error that did not prejudice the accused.
+7.  The following question therefore arises for our consideration: When the charge is that the accused assaulted 'X' and outraged her modesty, but the evidence is that he assaulted 'Y' to outrage her modesty, can the accused be punished, for having assaulting and outraging the modesty of 'Y', even though he was not charged with any offence with reference to 'Y', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice.
+8. S. 211 of the Code relates to the contents of the charge. It inter alia provides that every charge under the Code shall state the offence with which the accused is charged. S. 212 of the Code provides that the charge shall contain the 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. S. 215 of the Code however clarifies that 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. S. 464 of the Code relates to effect of omission to frame, or absence of, or error in, charge. Sub-s. (1) thereof provides that no finding, sentence or order of 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 charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-s. (2) of sec. 464 provides that if the court of appeal, confirmation or revision is of opinion that failure of justice has in fact been occasioned, it may --
+(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;
+(b) in 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.
+9.  In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC 116 1955 Indlaw SC 80] this court explained the concepts of "prejudice to the accused" and "failure of justice" thus:-
+"(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.
+If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
+(7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions."
+10. This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held :
+"Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
+These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once.
+Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused.
+... the Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice."
+"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
+Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
+If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one."
+"In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage
+But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were."
+11. In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623 1957 Indlaw SC 181] following Willie Slaney, this Court held:
+"In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
+12. In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577 2001 Indlaw SC 19904, this Court considered the meaning of the expression "failure of justice" occurring in s. 464 of Cr.PC. This Court held thus :
+"The crux of the matter is this :
+Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice....The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.
+One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalizing an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice."
+13.  The above principles are reiterated in several decisions of this Court, including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129 1988 Indlaw SC 706, State of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554 1998 Indlaw SC 1286, Dalbir Singh v. State of UP [2004 (5) SCC 334 2004 Indlaw SC 247], Dumpala Chandra Reddy vs. Nimakayala Bali Reddy - 2008 (8) SCC 339 2008 Indlaw SC 1064 and Sanichar Sahni vs. State of Bihar - 2009 (7) SCC 198 2009 Indlaw SC 736.
+14.  The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations:
+(i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
+(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge.
+(iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself.
+15.  The respondent relied upon the decision of this court in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452 2000 Indlaw SC 408]. In that case the respondent was chargesheeted for an offence u/s. 376 IPC and s. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court which was specified as a special court under the Act.
+16. The special court framed a charge only for an offence u/s. 376 IPC and after trial convicted the respondent u/s. 376 IPC and sentenced him to ten years imprisonment. The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the SC & ST (Prevention of Atrocities) Act. This Court reversed the decision of the High Court on the ground that a special court under the Act being a sessions court, it continued to have jurisdiction to try the case for the offence u/s. 376 IPC. That matter was considered u/s. 465 of the Code and not relevant on the facts of this case.
+17.  As noticed above, in this case, the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi, and assaulted the said Prakashi Devi and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of Prakashi Devi. He did not try to challenge the evidence let in to show that he had tried to outrage the modesty of Sheela Devi, as he was not charged with such an offence. The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse Prakashi Devi.
+18. Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away. When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi, the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted Sheela Devi and outraging her modesty, is opposed to principles of fair play and natural justice embodied in sections 211, 212, 215 and 464 of the Code.
+19. When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having assaulted and outraging the modesty of someone else, namely Sheela Devi.
+20.  The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi. One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. An accused cannot be punished for committing an offence against 'Y' when he is charged with having committed the offence against 'X' and the entire defence of the accused was with reference to charge of having committed offence against 'X'.
+21.  The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) u/s. 215 of the Code, as contrasted from illustration (d) under that section, throws some light on this issue. The said illustrations are extracted below :
+"(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
+(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material."
+22. Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi, but in the charge the name of the victim had been erroneously mentioned, say as Sushila Devi or Prakashi Devi (though there was no person by such name), and the inquiry exclusively referred to the assault and outraging the modesty of Sheela Devi, the court could infer that the accused was not misled and the error in the charge was immaterial.
+23. On the other hand, if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi Devi, and the witnesses refer only to the assault and outraging the modesty of Sheela Devi, the court will have to infer that the accused was prejudiced, if the accused had solely concentrated and focused his defence and entire cross-examination to show that he did not commit the offences against Prakashi Devi.
+24.  The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of Prakashi Devi, he had outraged the modesty of Sheela Devi, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-s. (1) of s. 212 of the Code, that the charge shall contain particulars as to the person against whom the offence was committed.
+25. There were two women present at the house at the time of the alleged incident, namely Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi. The accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. Therefore, we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of Sheela Devi.
+26.  The appeal is therefore allowed, the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words "her daughter-in-law Sheela Devi" for the words "abovenamed Prakashi Devi", in the second part of the charge.
+Appeal allowed.

Object_casedocs/C1004.txt

@@ -0,0 +1,23 @@
+Minor P. Rajendran v State of Madras and Others
+Supreme Court of India
+
+17 January 1968
+Writ Petitions Nos. 194, 196 and 202 of 1967. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights. AND Civil Appeal No. 1456 of 1967. Appeal by special leave from the judgment and order dated August 16, 1967 of the Madras High Court in Writ Appeal No. 308 of 1967.
+The Judgment was delivered by : Kailas Nath Wanchoo, J.
+1.  The three petitions and the civil appeal challenge the same order of the State of Madras by which rules were promulgated for selection of candidates for admission to the First Year integrated M.B.B.S. Course. We shall briefly refer to the provisions of the Rules to understand the attack made thereon. It appears that there was a large rush of candidates for admission to the medical colleges in the State of Madras while the seats therein were limited. In consequence, the State of Madras which runs these colleges framed rules for admission to them. It is not necessary to refer to all the Rules and we shall confine ourselves to those Rules which have a bearing on the challenge made in these cases. Rule 2 provides for reservation of 10 seats for certain categories. We are however not concerned with it as it is not challenged. Rule 3 provides for appointment of a Selection Committee of not more than three persons. The Committee has to interview all candidates who are qualified and eligible for admission to the course and the interview is for verifying the data and allotting marks for extra curricular activities. Rule 4 provides for reservation of seats for Scheduled Tribes and Scheduled Castes, with which also we are not concerned in the present cases. Rule 5, which is one of the rules under challenge, provides for reservation for socially and educationally backward classes, and lays down that for the purpose of this rule "socially and educationally backward classes" will mean those classes which have been specified in Group III of the revised Appendix 17-A to the Madras Educational Rules, issued with G.O. (Ms) 839 Education, dated 6th April, 1951, as subsequently amended. Rule 6 provides for reservation for women, which is also not under challenge, and the remaining seats, under r. 7, go to the general pool available to all.
+2.  Rule 8, which is another rule under challenge, provides that the seats reserved in the general pool and the seats reserved for the socially and educationally backward classes will be allocated among the various districts on the basis of the ratio of the population of each districts to the total population of the State. This district wise allocation will not apply to seats reserved for Scheduled Tribes and Scheduled Castes provided under r. 5. Then follows r. 9 as to the procedure for selection and qualifications of candidates. Rule 10(d) provides for a maximum of 75 marks for extra curricular activities which have been specified under five heads. Further the Rules also prescribe the form of application, and as the selection is on a district wise basis, the form has a column to the effect: "NATIVITY CLAIMED". It further appears from the form that nativity depends on the S.S.L.C. Register, i.e., the district from which the candidate passed the S.S.L.C. Examination, or on the nativity certificate of parents. Further for the purpose of nativity, the place where the candidate's parents were born or the place where they possessed immovable property has to be considered. The candidate may choose the district from which he passed the S.S.L.C. Examination, but he may, in the alternative, choose some other district on the ground of nativity, and this choice leaves it open to him to choose the district of permanent residence of the father or the mother. Further the form of certificate shows that where the parents are dead even the guardian's nativity can be the basis of the district which a candidate may claim.
+3.  On the basis of these rules, a number of Selection Committees were appointed, each consisting of three members. It is not in dispute that the three members of the Selection Committee did not sit together to interview candidates; each member was allotted 25 marks out of the total of 75 prescribed for the interview and interviewed each candidate separately. This method of selection has also been attacked as against the Rules.
+4.  Four main contentions have been raised before us in these cases. It has been urged that r. 5, which provides for reservation for socially and educationally backward classes is bad, as it violates Art. 15 of the Constitution on the ground that it is based entirely on consideration of caste. The second attack is on the district wise allocation under r. 8 on the ground that it violates Arts. 14 and 15. It is urged that in effect the selection is made to a large extent on the basis of the place of birth and this violates Art. 15. It is also urged that district wise allocation of seats for medical colleges is discriminatory, for such allocation has no nexus with the object of selection, namely, to secure the best talent for admission to medical colleges. Thirdly, it is urged that the procedure evolved by the Selection Committee for interview, which we have already referred to, was in violation of the Rules. It is also urged that there was no objective test laid down in the Rules for interview and the questions that were put were unrelated to r. 10(d), which lays down certain criteria for the purpose. Lastly, it is urged that the selection was mala fide inasmuch as the two official members contrived to secure caste representation in the matter of admission.
+5.  The petitions have been opposed on behalf of State of Madras as also the civil appeal. It has been urged that there is no substance in any of the contentions raised in these cases. It is unnecessary to refer to the stand taken by the State of Madras in detail at this stage for it will appear at appropriate places when we consider the various points raised in these cases.
+6.  Before we consider the points raised in these cases, we may refer to a preliminary objection raised on behalf of the respondents. It is urged that the selected candidates whose number is in the neighbourhood of 1,100 have not been made parties in these cases and therefore the cases should be rejected on that ground alone. Learned counsel for the petitioners appellant however, accepted that so far as the present selections are concerned, they would not press for quashing them, for in any case it would be too late for these petitioners/appellaiit to get admission in medical colleges this year. They therefore pray that the points raised may be decided for the future and the selection made this year may not be disturbed. On that basis it is urged on behalf of the petitioners and the appellant that it would not be necessary to make the candidates selected for this year parties. In view of this statement at the bar we propose to decide the points raised in these cases but shall not disturb the selections made this year.
+7.  The first challenge is to r. 5 on the ground that it violates Art. 15 of the Constitution. Art. 15 forbids discrimination against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. At the same time Art. 15 (4) inter alia permits the State to make any special provision for the advancement of any socially and educationally backward classes of citizens.
+8.  The contention is that the list of socially, and educationally backward classes for whom reservation is made under r. 5 nothing but a list of certain castes. Therefore, reservation in favour of certain castes based only on caste considerations violates Art. 15(1), which prohibits discrimination on the ground of caste only. Now if the reservation in question bad been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15(1), But it must not be forgotten that a caste is also a class of citizens and if the caste is a whole is socially and educationally backward reservation can be made in favour of such a caste on the around that it is a socially and educationally backward class of citizens within the meaning of Art. 15(4). Reference in this connection may be made to the observations of this Court in M. R. Balaji v. State of Mysore [1963] Supp. 1 S.C.R. 439 1962 Indlaw SC 272 at p. 459-460 to the effect that it was not irrelevant to consider the caste of a class of citizens in determining their social and educational backwardness. It was further observed that though the caste of a class of citizens may be relevant its importance should not be exaggerated; and, if classification of backward classes of citizens was based solely on the caste of the citizen, it might be open to objection. It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens. In its reply, the, State of Madras has given the history as to how this list of backward classes was made, starting from the year 1906 and how. the list has been kept up to date and necessary amendments made therein. It has also been stated that the main criterion for inclusion in the list was the social and educational backwardness of the caste based on occupations pursued by these castes. Because the members of the caste as a whole were found to be socially and educationally backward, they were put in the list. The matter was finally examined after the Constitution came into force in 'the light of the provisions contained in Art. 15(4). As it was found that members of these castes as a whole were educationally and socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Art. 15 (4). In short the case of the State of Madras is that the castes included in the list are only a compendious indication of the class of people in those castes and these classes of people had been put in the list for the purpose of Art. 15(4) because they had been found to be socially and educationally backward.
+9.  This is the position as explained in the Affidavit filed on behalf of the State of Madras. On the other hand the only thing stated in the petitions is that as the list is based on caste alone it is violative of Art. 15(1). In view however of the explanation given by the State of Madras, which has not been controverted by any rejoinder, it must be accepted that though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. . No attempt was made on behalf of the petitioners/appellant to show that any caste mentioned in this list was not educationally and socially backward. No such averment was made in the affidavit in support of their cases, nor was any attempt made to traverse the case put forward on behalf of the State of Madras by filing a rejoinder affidavit to show that even one of the castes included in the list was not educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared castewise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Art. 15. The challenge to r. 5 must The next attack is on r. 8, which provides for district wise distribution of seats according to population of the district. This is attacked first on the ground that it violates Art. 15 (1) which lays down that there shall be no discrimination on the basis of place of birth and it is urged that the provision for "nativity claimed" in the form is really a camouflage, for discriminating on the ground of place of birth. We have already referred to the provisions relating to nativity certificate. We must say that these provisions are as complicated and confusing as possible and there may be some force in the contention raised that this has been done to get over the prohibition in Art. 15(1) with respect to discrimination on the basis of place of birth. What exactly "nativity" means is not clear from the rule; it may be the place from where. the candidate passed his S.S.L.C. Examination; it may be the place where his lather was born or his mother was born it may be the place where his father has property or his mother has property; or it may be the place of permanent residence of the parents or guardian, for the words "permanent residence" appear in the form of nativity certificate. But the dictionary meaning of the word " nativity" is birth and when the Rules provide for nativity certificate they really mean the place of birth. However, it appears 'that the place of birth of the candidate is nowhere mentioned in the Rules. Even though there may be some substance in the charge that all this complicated and confusing method has been provided in order to get over the prohibition in Art. 15(1) by a camouflage, we cannot say that there is a clear violation of Art. 15(1) for the district which the candidate may claim does not depend upon the place of his birth. We cannot therefore strike down r. 8 on the ground that it discriminates on the basis of place of birth of the candidate concerned.
+10.  In the alternative, it is urged that district-wise distribution violates Art. 14 of the Constitution because it denies equality before the law or equal protection of the laws, inasmuch as such allocation of seats may result in candidates of inferior calibre being selected in one district while candidates of superior calibre cannot be selected in another district. It has not been denied on behalf of the State that such a thing cannot happen, though there are no statistics available in this behalf because the mark-sheets were all destroyed after the interviews. The question whether district wise allocation is violative of Art. 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a larger number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward classes or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that that object would be defeated if seats are allocated district by district. It cannot be and has not been denied that the object of Selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object, the argument on behalf of the petitioners/appellant is that that object cannot possibly be served by allocating seats district wise. It is true that Art. 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact however that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats district wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two Sources.
+11.  Let us now look to the justification which has been put forward on behalf of the State of Madras in support of this district wise allocation. It is said that there are better educational facilities in Madras city as compared to other districts of the State and Therefore if district wise selection is not made, candidates from Madras city would have an advantage and would secure many more seats than justified on the basis of proportion of the population of Madras city compared to the population of the State as a whole. This in our opinion is no justification for district wise allocation, which results in discrimination, even assuming that candidates from Madras city will get a larger number of seats in proportion to the population of the State. That would happen because a candidate from Madras city is better. If the object is to attract the best talent, from the two sources, district wise allocation in the circumstances would destroy that object. Further even if we were to accept this contention that would only justify allocation of seats between the city of Madras on one side and' the rest of the State on the other and not a district wise allocation throughout. But apart from this, we are of opinion that the object being what we have indicated, there is no reason why there should be discrimination which would go against the Candidates from Madras city. We may add that candidates who pass from Madras city need not all be residents of the city for it is common knowledge that schools and colleges in the capital city attract students from all over the State because of better educational facilities.
+12.  Another justification that has been attempted is that candidates coming from various districts would settle down in those districts and thus medical help would be available in sufficient measure in all the districts. Now this was not stated in the affidavit on behalf of the State of Madras. Besides there are no facts and figures to suggest that candidates from a particular district would by and large settle down in that district. Further the various options in the matter of nativity certificate to which we have referred, show that candidates will have a number of districts to choose from depending upon where they think that their chances are best and therefore the argument that districtwise allocation is justifiable on this ground is in our opinion of no merit. We are satisfied therefore that the State of Madras has made out no case for district wise allocation of seats in medical colleges. We are also satisfied that such allocation results in discrimination and there is no nexus between this territorial distribution and the object to be achieved, namely, admission of the best talent from the two sources already indicated. We are therefore of opinion that allocation of seats on district wise basis is violative of Art. 14. We may add that we do not mean to say that territorial classification is always bad under all circumstances. But there is no doubt that district wise classification which is being justified on a territorial basis in these cases is violative of Art. 14, for no justification worth the name in support of the classification has been made out. We therefore hold that r. 8 providing for district wise allocation is bad, as it violates Art. 14 and we hereby strike it down.
+13.  In view of our decision as to r. 8 and in view of the fact that there is no question of disturbing the selection made this year, we do not think it necessary to decide finally whether the procedure for selection followed in the present cases to which we have already referred is in accordance with the Rules or not. All that we need say is that it certainly looks odd that the members of the selection committee should sit separately. But we do not propose 'to decide the point finally in the present cases. We do not find any substance in the argument that there is no test provided for marking. Rule 10(d) indicates what matters have to be taken into consideration for allotting marks provided under that rule. We do not think that it is possible to provide any further guidance in the matter and the rest must be left to the Selection Committee. It may be added that we are not prepared to accept that the Committee did not follow the criterion indicated in r. 10(d) in allotting the marks provided in that rule.
+14.  This leaves the question of mala fide. Only two points are urged in this connection. The first is that the official members of the Selection Committees contrived to get caste representation in the matter of selection at the behest of the Government. There is in our opinion no proof of this and we are not prepared to accept that this was done. The second point in support of mala fides is that mark-sheets were destroyed after the selection was over. It does look odd that mark-sheets were so destroyed and we should have thought that mark-sheets would be kept for some period at any rate after the selection was over. But from this it is not possible to infer that the selection itself was mala fide. Moreover the attack on the selection on the ground of mala fides will affect the current selection only and therefore in view of the stand taken at the bar by the petitioners this ground does not now avail them. The ground that the selection was mala fide must therefore fail. We now come to the civil appeal.
+15. Learned counsel for the appellant wished to raise an argument based on Art. 21, which deals with protection of life and personal liberty. Apart from the question whether admission to professional colleges results in deprivation of life and liberty, we did not allow learned counsel to develop this point because no such case was made out before the Division Bench of the High Court which heard the appeal. We told learned counsel that he could argue only those points which had been urged before the Division Bench. The only point urged before the Division Bench was on the basis of a provision in the University Act as to eligibility and qualification of candidates for admission to medical colleges. There is however no substance in the contention raised in this behalf, for the Rules as to eligibility and qualification as framed by the University have been followed. So far as admission is concerned, it has to be made by those who are in control of the Colleges, in this case the Government, because the medical colleges are Government colleges affiliated to the University. In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications. This was what was done in these cases and therefore the selection cannot be challenged on the ground that it was not in accordance with the University Act and the Rules framed there under.
+16.  We therefore partly allow the petitions and strike down rule 8 of the Rules for admission to medical colleges, which deals with district wise allocation. The appeal is also allowed to the same extent. We have already indicated that so far as the selection for the current year is concerned, it will stand; however, r. 8 will not be enforced when selection is made hereafter. The petitioners/Appellant will get their costs, one set of hearing fee.
+Appeal partly allowed

Object_casedocs/C1005.txt

@@ -0,0 +1,27 @@
+State of Bihar v Gopi Kishore Prasad
+Supreme Court of India
+
+25 November 1959
+Appeal (civil)  488 of 1957
+The Judgment was delivered by: B. P. Sinha, J.
+1. The main question for determination in this appeal by special leave is whether the provisions of Art. 311 (2) of the Constitution are applicable to a probationer in the Bihar Subordinate Civil Service, who has been discharged as unsuitable on grounds of notoriety for corruption and unsatisfactory work in the discharge of his public duties.
+2. The facts of this case are short and simple. The respondent was appointed as a temporary Sub-Deputy Collector in the year 1944. In 1946, he was vested with the powers of a magistrate of the First Class. In December, 1947, he was appointed to a substantive post in the Bihar Subordinate Civil Service, on probation. During the period of his probation, he was posted at Jamshedpur in the district of Singhbhum, and later at Nawada in the district of Gaya. Proceedings were taken against him and he was called upon to show cause why his services should not be terminated forthwith, by the Government letter dated 4 November, 1952, a copy of which was forwarded to the respondent through the District Magistrate, Gaya. In that letter it was stated that throughout the year 1948 and upon the end of May 1949 the respondent, while employed as a Sub-Deputy Magistrate at Jamshedpur, had earned notoriety for corrupt practices, that from May, 1949 to March, 1951, the respondent's reputation while posted at Nawada, continued to be bad, and that his judicial work while at Jamshedpur had been subjected to careful scrutiny by Government, leading "to discovery of incredibly perverse decisions" given by him. Instances of eight cases with all the necessary details were also recited therein. Those proceedings terminated in an order of the Government of Bihar, dated 23 July, 1953, the relevant portions of which are as follows:
+"1. Certain facts were brought to the notice of Government about the unsatisfactory work and conduct of Mr. Gopi Kishore Prasad, Sub-Deputy Collector, on probation, while posted at Jamshedpur and Nawada, which raised grave doubts regarding his integrity and indicated that he was a corrupt and unreliable officer. Confidential enquires were made and it was found that while employed at Jamshedpur Mr. Gopi Kishore Prasad had the reputation of being a corrupt officer. Two successive Deputy Commissioner of Singhbhum under whom Mr. Prasad had served had also mentioned in their annual confidential reports that this officer had a bad reputation at Jamshedpur. The judicial work of Mr. Prasad, while at Jamshedpur, was subjected to a careful scrutiny and Government found ample materials to show that the reports about his resorting to corrupt practices were justified. He was transferred to Nawada. Both the District Magistrate, Gaya, and Commissioner, Patna Division, reported that the Nawada Mr. Gopi Kishore Prasad's honesty was open to doubt. He was then transferred to Gaya. His work at Gaya was found to be wholly unsatisfactory.
+2. In consideration of all these facts it was provisionally decided to terminate the probation of Mr. Gopi Kishore prasad and discharge him from service. He was accordingly asked to show cause against his discharge. His explanation was carefully considered by Government and found to be unsatisfactory.
+3. In view of these facts, Government have, after consulting the Public Service Commission, been pleased to order that Mr. Gopi Kishore Prasad should be discharged from service forthwith.
+4. Mr. Gopi Kishore Prasad, probationary Sub-Deputy Collector, is, therefore, discharged from service with effect from the date on which this order is served on him.
+Order
+Ordered that a copy of this resolution be forwarded to the District Magistrate, Gaya, for service on Mr. Gopi Kishore Prasad.
+(By order of the Government of Bihar) (Sd.) B. N. SINHA, 24-7-53, Deputy Secretary to Government."
+3. The respondent moved the High Court of Judicature at Patna under Arts. 226 and 227 of the Constitution against the order of the Government quoted above. The matter was heard by V. Ramaswami, J. (as he then was) and K. Sahai, J. The High Court by its judgment dated 19 January, 1955 allowed the application and quashed the order aforesaid of the Government dated 23 July, 1953. Ramaswami, J., with all the contentions raised on behalf of the respondent-petitioner in the High Court - and after examining the relevant rules of the Civil Services (Classification Control and Appeal) Rules and Art. 311(2) of the Constitution, came to the conclusion that the respondent was not entitled to a full enquiry as contemplated by the para 1 of rule 55 of the Civil Service (Classification, Control and Appeal) Rules, but that he was entitled to the protection under Art. 311(2) of the Constitution. He also held that there had been a violation of the principles of natural justice, inasmuch as the special reports of the Commissioner of Chotanagpur Division and of the Deputy Inspector-General of Police in the Criminal Investigation Department, had not been shown to the respondent. On these grounds he held that the order of discharge impugned by the respondent was illegal and ultra vires. Sahai, J., did not express a decided opinion on the question whether the respondent was entitled to the protection of Art. 311(2) of the Constitution, because in his view the decision of the Judicial Committee of the Privy Council in I. M. Lall case [L.R. 75 I.A. 225] 1948 Indlaw PC 32 was concerned with a confirmed officer, whereas the respondent was only an officer on probation. But he agreed with Ramaswami, J., in the result on the ground of the violation of the principles of natural justice.The State of Bihar moved the High Court for leave to appeal to this Court. The application for leave under Art. 132(1) of the Constitution was heard by S. K. Das, C.J. (as the then was) and Kanhaiya Singh, J. The High Court, by its order dated 8 August, 1955, refused to grant the leave on the ground that the case had not really been determined on an interpretation of Art. 311 of the Constitution, but substantially on the ground that there had been an infringement of the principles of natural justice. The State of Bihar thereafter moved this Court for special leave to appeal, which was granted on 28 November, 1955. That is how the matter had come before this Court.
+4. The main point in controversy before us turns on the question whether the provisions of Art. 311(2) of the Constitution are attracted to the case of a public servant who was still a probationer and had not been confirmed in a substantive post. The question whether there had or had not been a violation of the principles of natural justice, which was the basis of the decision in the High Court as indicated above, was not raised before us.
+5. The judgment of the High Court could be allowed to rest on that basis alone, but as it appears that this Court granted special leave to determine the controversy based upon the interpretation of Art. 311(2) of the Constitution, we think it necessary to express our opinion on that part of the case. The decision of this Court in Parshotam Lal Dhingra v. Union of India 1958 (1) LLJ 544 1957 Indlaw SC 103 had not been given till then. If that decision were in existence then, perhaps the special leave would not have been granted.
+In our opinion, the controversy raised in this case is completely covered by the decision of the Constitution Bench of this Court in Dhingra case 1957 Indlaw SC 103 (supra.) The main question for decision in that case was whether the appellant Dhingra had been reduced in rank by way of punishment as a result of the order of the General Manager of the Railway. Though, in that case, this Court decided that the order impugned had got that effect, this Court went elaborately into all the implications of the service conditions, with particular reference to the Railway Service Rules and the Constitutional provisions contained in S.240 of the Government of India Act, 1935, and Art. 311 of the Constitution. The elaborate discussion in that judgment has reference to all stages of employment in the public services including temporary posts, probationers, as also confirmed officers. In so far as those observations have a bearing on the termination of service or discharge of a probationary public servant, they may be summarized as follows:
+1. Appointment to a post on probation gives to the person so appointed no right to the post and his service may be terminated, without taking recourse to the proceedings laid down in the relevant rules for dismissing a public servant, or removing him from service.
+2. The termination of employment of a person holding a post on probation without any enquiry whatsoever cannot be said to deprive him of any right to a post and is, therefore, no punishment.
+3. But, if instead of terminating such a person's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct or inefficiency of for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution.
+4. In the last-mentioned case, if the probationer is discharged on any one of those grounds without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it will amount to a removal from service within the meaning of Art. 311(2) of the Constitution and will, therefore, be liable to be struck down.
+5. But, if the employer simply terminates the services of a probationer without holding an enquiry and without giving him a reasonable chance of showing cause against his removal from service, probationary civil servant can have no cause of action, even though the real motive behind the removal from service may have been that his employer thought him to be unsuitable for the post he was temporarily holding, on account of his misconduct or inefficiency or some such cause.
+6. It would thus appear that, in the instant case, thought the respondent was only a probationer he was discharged from service really because the Government had on enquiry come to the conclusion, rightly or wrongly, that he was unsuitable for the post he held on probation. This was clearly by way of punishment and, therefore, he was entitled to the protection of Art. 311(2) of the Constitution. It was argued on behalf of the appellant that the respondent, being a mere probationer, could be discharged without any enquiry into his conduct being made and his discharge could not mean any punishment to him, because he had no right to a post. It is true, if the Government came to the conclusion that the respondent was not a fit and proper person to hold a post in the public service of the State, it could discharge him without holding any enquiry into his alleged misconduct. If the Government proceeded against him in that direct way, without casting any aspersion on his honesty or competance, his discharge would not, in law, have the effect of a removal from service by way of punishment and he would, therefore, have no grievance to ventilate in any Court. Instead of taking that easy course, the Government chose the more difficult one of starting proceedings against him and of branding him as a dishonest and an incompetent officer. He had the right, in those circumstances, to insist upon the protection of Art. 311 (2) of the Constitution. That protection not having been given to him, he had the right to seek his redress in Court.
+7. It must, therefore, be held that the respondent had been wrongly deprived of the protection afforded by Art. 311(2) of the Constitution. His removal from the service, therefore, was not in accordance with the requirements of the Constitution.The appeal is accordingly dismissed with costs.
+Appeal dismissed.

Object_casedocs/C1006.txt

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+Food Corporation of India and Another v Yadav Engineer and Contractor
+Supreme Court of India
+
+6 August 1982
+Civil Appeal No. 3317 of 1981
+The Judgment was delivered by: D. A. Desai, J.
+1. A fond hope that a decision of this Court with the sanction of Art. 141 of the Constitution that the law laid down therein will be the law of the land would put an end to a raging controversy amongst various High Courts stands to some extent rudely shaken when the controversy with a slight variation has again been placed in the lap of this Court. For highlighting and then resolving the controversy facts in dispute have a little or no relevance save and except mentioning certain events. Respondent Yadav Engineer & Contractor, a partnership firm filed a suit against Food Corporation of India, 1st defendant and Shyam Narain Nigam, District Manager of 1st defendant as 2nd defendant, for a declaration that the contract between the plaintiff and the 1st defendant for handling and transportation of the goods of the 1st defendant Corporation was subsisting on the date of the suit and restraining the defendant from committing breach of the same by handing over that work to some one other than the plaintiff. The suit was instituted on 1 June 1981, in the Court of the III Civil Judge, Class I, Gwalior. In the suit a notice of motion was taken out purporting to be under Order XXXIX, rules 1 and 2 read with s. 151 of the Code of Civil Procedure, for an interim injunction restraining the defendants from committing a breach of contract and from interfering with the work of handling and transport of goods of the 1st defendant Corporation by the plaintiff during the pendency of the suit. On the notice of motion being taken out the Court directed notice of the same to be served and the same was made returnable on the next day, 2 June 1981. On the returnable date the 2nd defendant, District Manager of the 1st defendant Corporation who had office in the City of Gwalior was served and he appeared through one Shri N.K. Modi, Advocate, filed the letter of authority (Vakalat) in favour of the learned advocate on behalf of 2nd defendant and the learned advocate prayed for time for 'reply and arguments to the plaintiff's application for temporary injunction'.
+2. The court acceded to the request and posted the matter on 3 June 1981. An endorsement appears in the record that the 1st defendant Food Corporation of India was not served though the endorsement reads 'absent'. However, the last line in the proceeding makes it clear that the case was posted on 3 June 1981' 'for reply arguments and awaiting service on 3 June 1981'. When the matter came up on the next day, i.e. 3 June 1981, an application was moved on behalf of 1st defendant inviting the attention of the Court to the subsisting arbitration agreement between the plaintiff and the 1st defendant and which agreement authorised the Managing Director of the 1st defendant to appoint an arbitrator in respect of any dispute arising out of the contract between the plaintiff and the 1st defendant. It was also stated that the 1st defendant desires to have the dispute, if any, resolved by arbitration under the subsisting arbitration agreement and that the defendant is fully ready and willing (ichhuk) to go to arbitration. The application concluded with a prayer that under the circumstances the suit may be stayed as provided in s. 34 of the Arbitration Act, 1940 ('Act' for short).
+3. The learned trial Judge was of the view that the dispute between the parties is covered by the arbitration agreement set out in Art. 19 of the contract between the plaintiff and the 1st defendant. The learned Judge negatived the contention that an application made by the 2nd defendant for filing reply to the notice of motion taken out by the plaintiff for interim injunction is a step taken in the proceedings in view of the binding decision of a Division Bench of the Madhya Pradesh High Court in Sansar Chand Deshraj v. State of Madhya Pradesh. The learned judge accordingly granted stay of further proceedings in the suit as prayed for on behalf of the 1st defendant. Plaintiff preferred an appeal in the Court of the District Judge, Gwalior. The learned III Additional District Judge, before whom the appeal came up for hearing, agreed with the view taken by the learned trial judge and confirmed the order granting stay of further proceedings in the suit and dismissed the appeal. Undaunted even by this second rejection plaintiff approached the High Court in revision under s. 115 of the Code of Civil Procedure. The learned judge, though his attention was drawn to the binding decision of the Division Bench of the same High Court, did not refer to it in the judgment and relied upon a decis ion of the Adhara Pradesh High Court in Bajaj International v. Indian Tobacco Suppliers 1977 Indlaw AP 122 and held that an application for filing reply to a notice of motion for interim injunction is a step taken in the proceeding which would disentitle the party from invoking the arbitration agreement. In support of this conclusion the learned judge also relied upon Abdul Qudoos v. Abdul Gani, which decision clearly does not support any such proposition.
+4. The learned judge further observed that even if the view that the application filed by the 2nd defendant praying for time to reply to the notice of motion for interim injunction may not be treated as a step in the proceeding, yet the 1st defendant would not be entitled to a discretionary order under s. 34 of the Act on the ground that one of the conditions necessary for invoking the jurisdiction of the court under s. 34 is not satisfied inasmuch as nowhere in the application the 1st defendant has stated that the 1st defendant at the time when the proceedings were commenced and still remains ready and willing to do all things necessary for the proper conduct of the arbitration. For this additional reason which was never urged on behalf of the plaintiff either in the trial court or in the 1st appellate court and as would be presently pointed out which is contrary to the record the High Court interfered in revision, set aside the order of the trial court granting stay and confirmed by the appellate court and rejected the application for stay of proceedings in the suit. Hence this appeal by special leave. S. 34 of the Act reads as under :
+"34. Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."
+5. The contours of the controversy are confined to one of the negative requirements of s. 34 to be fulfilled by a party seeking the discretionary relief of stay of proceedings to qualify for the same. It is not necessary to reproduce all the relevant conditions for attracting the application of s. 34. One of the conditions to be satisfied before an order under s. 34 can be obtained is that the party to the legal proceeding has at any time before filing a written statement or taking any other steps in the proceedings applied to the judicial authority for stay of proceedings. In other words, a party seeking stay of proceedings must move the court with an application under s. 34 before filing the written statement to the suit or before taking any other steps in the proceedings. Admittedly, application in the present proceedings was filed before filing the written statement. The question is whether the second pre-condition is satisfied in that the application under s. 34 was filed before taking any other steps in the proceedings. What does the expression 'before taking any other steps in the proceedings' signify? Before ascertaining the scope and ambit of the expression it would be worthwhile to briefly narrate the raison d'etre for prescribing this condition.
+Ordinarily as provided in s. 9 of the Code of Civil Procedure all suits of a civil nature except suits of which cognizance is either expressly or impliedly barred would be triable by the courts set up for the purpose. If the dispute is of a civil nature the forum is one or the other court set up for the purpose. The State courts have been set up for an easy access by persons who seek resolution of their disputes. They must be disputes of civil nature and the cognizance of which is not either expressly or impliedly barred. Civil courts set up by the State having defined jurisdiction will be the forum for resolution of such disputes. Ordinarily, therefore, whenever a dispute of a civil nature arises the party claiming relief would approach the court having jurisdiction to resolve the dispute. The party against whom relief is sought will be informed of the cognizance of the dispute being taken by the court and it must come forth and either concede that the dispute is genuine in whole or in part or defend the Action.
+6. Sometimes a dispute as to jurisdiction, territorial or pecuniary, is raised but apart from such specific exclusions claimed by a party civil courts are set up with the object of resolving civil disputes. A forum thus may readily be available and presumed to be easily accessible. This is the prescribed mode of access to justice. Arbitration Act carves out an exception to the general rule that the forum for resolution of civil disputes is the civil court having jurisdiction to deal with the same by providing that the parties to a dispute by agreement unto themselves may choose a forum of their choice for settlement of disputes between them in preference to the State Courts. Undoubtedly, for making these agreements enforceable sanction of law is necessary. That is the object underlying the Act. Industrial revolution bringing into existence international commercial transactions led to a search for finding a forum outside the municipal law courts involving protracted and dilatory legal process for simple, uninhibited by intricate rules of evidence and legal grammar. This explains resort to forums for arbitration at international level. No two contracting parties are under any legal obligation to provide for an arbitration agreement. If the parties enter into an arbitration agreement implying that they would like that the disputes covered by the agreement will be resolved by a forum of their choice, the approach of the court must be that parties to the contract are held to their bargain. If in breach or derogation of a solemn contract a party to an arbitration agreement approaches the court and if the other side expeditiously approaches the court invoking the court's jurisdiction to stay the proceedings so that by this negative process the court forces the parties to abide by the bargain, ordinarily the court's approach should be and has been to enforce agreements rather than to find loopholes therein. More often it is found that solemn contracts are entered into on the clearest understanding that any dispute arising out of the contract and covered by the contract shall be referred to arbitration. It may be that one or the other party may not have entered into the contract in the absence of an arbitration agreement. Therefore when in breach of an arbitration agreement a party to the agreement rushes to the court, unless a clear case to the contrary is made out the approach of the court should be to hold parties to their bargain provided necessary conditions for invoking s. 34 are satisfied.
+7. Arbitration Act prescribes various methods by which an arbitration agreement can be enforced. S. 20 enables parties to an arbitration agreement to approach the Court in the circumstances therein mentioned for a direction that the agreement be filed in the court and on such agreement being filed the Court is empowered to make an order of reference to the arbitrator. Provisions of Chapter IV provide for arbitration in suits. S. 34 prescribes one other method of enforcing arbitration agreement if a party to an arbitration agreement in breach of it approaches the court and files a suit in respect of a dispute covered by the arbitration agreement.
+8. S. 34 prescribes a method by which the other party to the arbitration agreement by satisfying the conditions prescribed in s. 34 can enforce the arbitration agreement by obtaining an order of stay of the suit. It is crystal clear that once the suit is stayed the party who in breach of the arbitration agreement approaches the court for relief will be forced to go to arbitration and thus the court by this negative attitude of declining to proceed further with the proceedings brought before it would enforce the arbitration agreement. In order, therefore, to satisfy the court that the other party to the arbitration agreement who would be defendant in the suit is ready and willing to abide by the arbitration agreement and ready to take all steps necessary for the proper conduct of the arbitration, it must show that it is not waiving or abandoning its right under the arbitration agreement or submitting to the jurisdiction of the court thereby accepting the forum selected by the plaintiff for resolution of dispute and acquiescing in it. In order to steer clear of this charge the provision is made in s. 34 for an application by the party who is brought to the court by the opposite party in breach of the arbitration agreement to apply for stay before filing the written statement or before taking any other steps in the proceeding. This explains the purpose and object underlying the provision contained in s. 34.
+9. The contention and the resultant issue in dispute must now be neatly framed. The primary issue is: what action on the part of the defendant who is sued in a court of law and who has a subsisting valid arbitration agreement with the plaintiff, would constitute step in the proceeding so as to disentitle him to stay of the suit which, if granted, would enable him to enforce the arbitration agreement ? Would entering an appearance and contesting petition or notice of motion for interlocutory order constitute such step in the suit or proceedings as would disentitle the party to an order under s. 34 ? The subsidiary point is, whether where in a suit filed in a court, a prayer for an ex parte ad interim injunction is made either by an application or by a notice of motion or an application is made for appointment of a receiver and either ex parte ad interim injunction is granted or ex parte receiver is appointed and the copies of the pleadings and the order are served upon the defendant, if the defendant appears and requests the court either to vacate the injunction or discharge the receiver or modify the orders without filing a written statement or making an application for filing a written statement to the plaint, could he be said to have taken a step in the proceedings so as to disentitle him from obtaining stay of the suit ?
+10. Let the precedents rest for the time being and let an attempt be made to ascertain the underlying intendment in enacting the condition in s. 34 which prescribes a mode of enforcing the arbitration agreement to the effect that if a party to an arbitration agreement commences an action the other party to the agreement, if it desires to enforce the agreement, may seek stay of the suit before either filing written statement or taking other steps in the proceeding. Ordinarily the court would respect the sanctity of contracts. A valid arbitration agreement between the parties obliges both the parties to the agreement to act according to the terms of the agreement. A valid arbitration agreement envisages resolution of dispute by a forum of the choice of the parties and displaces the state courts. Ordinarily, a party to a valid arbitration agreement is not entitled unilaterally to commit a breach of the agreement or ignore the agreement. Now, if a party to an arbitration agreement has a dispute to be resolved arising out of the contract in which the arbitration agreement is Incorporated and instead of invoking the arbitration agreement by inviting the parties to appoint the arbitrator it rushes to the court in breach of the agreement and files a suit, the other party is undoubtedly entitled to enforce the agreement.
+True, the other party is equally entitled to waive the benefit of the arbitration agreement. If the other party desires to waive the benefit of the agreement it can appear in the suit and contact the suit. Such conduct would demonstrably show that both the parties have waived the benefit flowing from the arbitration agreement of getting the dispute between them resolved by a forum of their choice. But if the first party in breach of the agreement files a suit the other party to the agreement must have an option and opportunity to enforce the arbitration agreement. S. 34 prescribes a mode and method of enforcing the arbitration agreement. When a party to the agreement has filed a suit in breach of the agreement and the other party to the agreement is dragged to the court, by staying the suit at the instance of the other party so dragged to the court the first party consequently would be forced to honour the arbitration agreement. But before the other party to the arbitration agreement is entitled to enforce the arbitration agreement by stay of the suit it must disclose its unequivocal intention to abide by the agreement and, therefore, s. 34 obliges such a party to ask for stay of the proceedings before such a party takes any steps which may unequivocally indicate the intention to waive the benefit of the arbitration agreement. Abandonment of a right to seek resolution of dispute as provided in the arbitration agreement must be clearly manifested by the step taken by such party. Once such unequivocal intention is declared or abandonment of the right to claim the benefit of the agreement becomes manifest from the conduct, such party would then not be entitled to enforce the arbitration agreement because there is thus a breach of the agreement by both the parties disentitling both to claim any benefit of the arbitration agreement.
+11. S. 34 provides that a party dragged to the court as defendant by another party who is a party to the arbitration agreement must ask for stay of the proceedings before filling the written statement or before taking any other step in the proceedings. That party must simultaneously show its readiness and willingness to do all things necessary to the proper conduct of the arbitration. The legislature by making it mandatory on the party seeking benefit of the arbitration agreement to apply for stay of the proceedings before filing the written statement or before taking any other steps in the proceedings unmistakably pointed out that filing of the written statement discloses such conduct on the part of the party as would unquestionably show that the party has abandoned its rights under the arbitration agreement and has disclosed an unequivocal intention to accept the forum of the court for resolution of the dispute by waiving its right to get the dispute resolved by a forum contemplated by the arbitration agreement. When the party files written statement to the suit it discloses its defence, enters into a contest and invites the court to adjudicate upon the dispute. Once the court is invited to adjudicate upon the dispute there is no question of then enforcing an arbitration agreement by forcing the parties to resort to the forum of their choice as set out in the arbitration agreement. This flows from the well settled principle that the court would normally hold the parties to the bargain (Check :Ramaji Dayawala & Sons (P) Ltd. v. Invest Import).
+12. Apart from filing written statement, what other step did the legislature contemplate as being taken in the proceedings which would disentitle the party to the suit from obtaining stay of the proceedings which would have the effect of enforcing the arbitration agreement ? General words 'taking any other steps in the proceedings' just follow the specific expression 'filing a written statement' and both are used for achieving the same purpose. Therefore, the latter general expression must be construed ejusdem generis with the specific expression just preceding to bring out the ambit of the latter Expression 'written statement' is a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff. Therefore, the expression 'written statement' in s. 34 signifies a specific thing, namely, filing an answer on merits to the plaint filed by the plaintiff. This specific word is followed by general words 'taking any other steps in the proceedings'. The principle of ejusdem generls must help in finding out the import of the general words because it is a well established rule in the construction of statutes that general terms following particular ones apply to such persons or things as are ejusdem generis with these comprehended in the language of the legislature. In Ashbury Railway Carriage & Iran Co. v. Riche, the question of construction of the object of a Company: 'to carry on business of mechanical engineers and general contractors', came in for consideration and it was said that the generality of the expression 'general contractors' was limited to the previous words 'mechanical engineers' on the principle of ejusdem generis. Filing of the written statement would disentitle the party from seeking enforcement of arbitration agreement by obtaining stay of proceedings because it is such an act on behalf of the party entitled to enforce the arbitration agreement which would disclose unequivocal intention of the party to give up the benefit of the arbitration agreement and accept the method in preference to the one set out in the arbitration agreement to the one adopted by the other party by filing the suit and get the dispute adjudicated upon by the machinery of the court. If this is the underlying intendment in providing that application for stay of the proceedings must be filed before the filing of the written statement, the same conclusion must follow when instead of filing the written statement the party has taken some other step in the proceedings.
+That some other step must indisputably be such step as would manifestly display an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration. Each and every step taken in the proceedings cannot come in the way of the party seeking to enforce the arbitration agreement by obtaining stay of proceedings but the step taken by the party must be such step as would clearly and unmistakebly indicate an intention on the part of such party to give up the benefit of arbitration agreement and to acquiesce in the proceedings commenced against the party and to get the dispute resolved by the court. A step taken in the suit which would disentitle the party from obtaining stay of proceeding must be such step as would display an unequivocal intention to proceed with the suit and to abandon the benefit of the arbitration agreement or the right to get the dispute resolved by arbitration.
+13. If the step in the proceedings contemplated by s. 34 must be such step as would clearly, unambiguously and unequivocally disclose the intention of the party taking the step to give up the benefit of the arbitration agreement or its right of getting the dispute resolved by arbitration and to acquiesce in the methodology of resolution of dispute by court, would an appearence in the suit for contesting interlocutory applications such as application for appointment of receiver or ex parte ad interim injunction, mandatory or prohibitory, and contesting the same be a step which would disclose an unequivocal intention to proceed with the suit and to give up the benefit of the arbitration agreement ? That is the controversy in the appeal before us.
+Arbitration agreement generally provides for resolution of disputes either present or future by a forum of the choice of the parties. Ordinarily, arbitration agreement finds its place in contracts. Apprehending that while preforming contract some disputes may arise, care is taken to incorporate an arbitration agreement in the contract itself prescribing the forum for resolution of such disputes. To illustrate, partnership contracts incorporate arbitration agreement for resolution of disputes arising out of the contract of partnership. Building contracts these days incorporate arbitration agreements. International commercial transactions also incorporate arbitration agreements. The purpose underlying entering into arbitration agreement is to provide for resolution of disputes arising from the contract between the parties. Now, if a party to an arbitration agreement files a suit seeking relief in respect of disputes arising from the contract the other party to the agreement can either waive the benefit of the arbitration agreement and acquiesce in the suit or enforce the arbitration agreement.
+14. Such conduct has specifically to be in relation to disputes covered by arbitration agreement. But if a party to an arbitration agreement files a suit and simultaneously moves an interlocutory application such as an application for appointment of receiver, usually to be found in suits for dissolution of partnership and rendering accounts, or for an interim injunction to ward off a threatened or continuing breach of contract, irreparable harm would be suffered by the other party to the arbitration agreement if it cannot contest the interlocutory application on the pain of abandoning the benefit of arbitration agreement. A concrete illustration would be both illuminating and convincing. In a suit for dissolution of partnership and accounts an application for appointment of receiver as also an application for interim injunction restraining the defendant from using the partnership goods or assets for continuing the business are filed. The court passes ex parte interim order and issues notice calling upon the defendant to show cause why the same should not be made absolute. In a running business appointment of a receiver would thoroughly dislocate the business and an injunction would bring to standstill the flourishing business. If the defendant appears and contests the application for appointment of receiver as also the application for injunction, could he be said to display an unequivocal intention to give up the benefit of the arbitration agreement and to acquiesce in the suit ? The dispute between the parties is whether the partnership should be dissolved as per the contract of partnership. Interim injunction application or application for appointment of receiver have nothing to do directly or substantially with the terms of the partnership. The main or substantial dispute will be covered by the plaint filed in the suit. Incidental proceedings for appointment of receiver or for interim injunction are for the protection either of the property or the interests of the parties. Now, when ex parte orders are obtained on ex parte averments the other party cannot be precluded from coming and pointing out that no case is made out for granting interim relief.
+15. It would be too cumbersome to expect the party first to apply for stay and then invite the court under s. 41 (2) of the Act to vacate the injunction or to discharge the receiver. Giving the expression 'taking any other steps in the proceedings' such wide connotation as making an application for any purpose in the suit such as vacating stay, discharge of the receiver or even modifying the interim orders would work hardship and would be inequitous to the party who is willing to abide by the arbitration agreement and yet be forced to suffer the inequity of ex parte orders. Therefore, the expression 'taking any other steps in the proceedings' must be given a narrow meaning in that the step must be taken in the main proceeding of the suit and it must be such step as would clearly and unambiguously manifest the intention to waive the benefit of the arbitration agreement and to acquiesce in the proceedings. Interlocutory proceedings are incidental to the main proceedings. They have a life till the disposal of the main proceeding. As the suit or the proceeding is likely to take some time before the dispute in the suit is finally adjudicated, more often interim orders have to be made for the protection of the rights of the parties. Such interlocutory proceedings stand independent and aloof of the main dispute between the parties involved in the suit. They are steps taken for facilitating the just and fair disposal of the main dispute. When these interlocutory proceedings are contested it cannot be said that the party contesting such proceedings has displayed an unequivocal intention to waive the benefit of the arbitration agreement or that it has submitted to the jurisdiction of the court. When ex parte orders are made at the back of the party the other party is forced to come to the court to vindicate its right. Such compulsion cannot disclose an unambiguous intention to give up the benefit of the arbitration agreement. Therefore, taking any other steps in the proceedings must be confined to taking steps in the proceedings for resolution of the substantial dispute in the suit. Appearing and contesting the interlocutory applications by seeking either vacation thereof or modification thereof cannot be said to be displaying an unambiguous intention to acquiesce in the suit and to waive the benefit of the arbitration agreement. Any other view would both be harsh and inequitous and contrary to the underlying intendment of the Act. The first party which approaches the court and seeks an ex parte interim order has obviously come to the court in breach of the arbitration agreement. By obtaining an ex parte order if it forces the other party to the agreement to suffer the order, or by merely contesting be imputed the intention of waiving the benefit of arbitration agreement, it would enjoy an undeserved advantages. Such could not be the underlying purpose of s. 34. Therefore, in our opinion, to effectuate the purpose underlying s. 34 the narrow construction of the expression 'taking any other steps in the proceedings' as herein-above set out appears to advance the object and purpose underlying s. 34 and the purpose for which the Act was enacted.
+16. Having examined the contention on the language of the statute, the setting in which it is placed, the underlying intendment and the purpose it seeks to serve, let us turn to precedents. There is a clear cut cleavage and divergence of opinion amongst various High Courts. Allahabad, Bombay and later decisions of Calcutta High Court, Gujarat, Madhya Pradesh and Rajasthan High Courts have taken the view that appearing and contesting interlocutory application is not a step taken in the proceedings so as to disentitle the party from taking benefit of the arbitration agreement by seeking stay of the suit. On the other hand, earlier decisions of Calcutta High Court, Delhi and Madras High Courts have taken a contrary view.
+In Bombay there has been a reference to a practice commended to us by Mr. Sorabji, learned counsel for the respondent that to avoid the pitfall of s. 34 even while contesting an interlocutory application the party seeking to enforce the arbitration agreement must enter appearance under protest. This practice not only does not commend to us, but way back in Nuruddin Abdulhussein v. Abu Ahmed Abdul Jalli,((AIR 1950 Bom. 1271 1949 Indlaw MUM 37)), Tendolkar, J. has rejected it as one of the doubtful legal import and utility.
+17. One must construe the section on its own language keeping in view the purpose and object of the enactment. One cannot add to the requirement by introducing a practice brought into vogue by Solicitors in Bombay, when no such practice exists elsewhere in the country. S. 34 is even invoked in rural backward areas. The highly skilful solicitor's draftmanship cannot provide as escape route to an unwary litigent. We are, therefore, not disposed to accept the suggestion that in order to avoid any pitfall of being denied the benefit of arbitration agreement the party seeking to enforce the agreement must enter an appearance under protest because we affirm what Tendolkar, J. has said. It reads as under:
+"It appears to me therefore that the addition of the words 'under protest' to an appearance filed in court in cases not covered by O. 30, R.S. Civil P.C., is meaningless when neither the jurisdiction of the Court nor the validity of the writ or service is challenged. It is not challenged where a defendant files an appearance under protest under the prevailing practice because he desires to apply for stay under the Arbitration Act. Therefore, whatever may be the reason for the practice which has grown up, it seems to me clear that there is no obligation on the defendant to follow this practice of doubtful import and utility and he is at liberty to file an unconditional appearance."
+Before we turn to the only decision of this Court in State of Uttar Pradesh v. Janki Saran Kailash Chandra,( [1974] 1 S.C.R. 31 1973 Indlaw SC 325) which at one stage was expected to resolve the controversy, we may briefly refer to the decisions of the various High Courts to which our attention was drawn.
+18. We would first refer to the decisions which take the view that appearing to contest interlocutory application either for vacating the interim orders or modification of the same does not constitute a step in the proceedings which would disentitle the party to an order of stay under s. 34. In Nuruddin Abdulhussein, 1949 Indlaw MUM 37 (supra) learned single judge of the Bombay High Court held that the true test for determining whether an act is a step in the proceedings is not so much the question as to whether it is an application-although, of course, that would be a satisfactory test in many cases-but whether the Act displays an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration. In reaching this conclusion the Court relied upon Ford's Hotel Co. v. Bartlett,( [1896] A.C. 1) where Lord Shand observed as under;
+"...this appears to me to have been in effect an abandonment of the proposal to have the subject of the cause disposed of by arbitration".
+19. The contention that when the defendant filed an unconditional appearance, presumably having reference to the practice that had grown up in Bombay High Court of appearance under protest, it was a step in the proceeding as contemplated by s. 34 was negatived and stay was granted. In Sansar Chand Deshraj, (supra) a Division Bench of the Madhya Pradesh High Court approved the decision in Nuruddin Abdulhussein, and held that mere filing of a reply to an application for interim relief by way of appointment of a receiver or for issue of an injunction does not constitute a step in the proceeding which would indicate that there is in effect abandonment of the proposal to have the subject of cause disposed of by arbitration. It may be pointed out here that the Division Bench decision of the Madhya Pradesh High Court which was in terms binding on the learned Judge of the High Court, and it was specifically submitted to us that even though the attention of the learned judge was invited he neither referred to it nor distinguished it. Times without number this Court has observed that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view contrary to the earlier decision of a Division Bench of the same High Court, it would be judicial impropriety to ignore that decision but after referring to the binding decision he may direct that the papers be placed before the Chief Justice of the High Court to enable him to constitute a larger Bench to examine the question. Judicial Comity demands that a binding decision to which attention has been drawn should neither be ignored nor overlooked (Check :Mahadeolal Kanodia v. The Administrator General of West Bengal,( ([1960] 3 SCR 578 1960 Indlaw SC 175)) Shri Bhagwan & Anr v. Ram Chand & Anr., ([1965] 3 S.C.R. 218 1965 Indlaw SC 473 at p. 228) and State of Gujarat v. Ramprakash P. Puri & Ors). ([1970] 2 S.C.R. 875 1969 Indlaw SC 458.)
+In Anandkumar Parmanand Kejriwala & Anr. v. Kamaladevi Hiralal Kejriwal,( AIR 1970 Bom. 231 1969 Indlaw MUM 49) a Division Bench of the Bombay High Court approved the decision of the learned single judge in Nuruddin Abdulhussein and observed that the test of making an application being styled as the step in the proceedings is neither a sole test nor a conclusive test and what is such a step in the proceedings has been settled by the decision of Tendolkar, J. The defendant having filed appearance under protest and reserved the right to move the Court for referring the dispute to arbitration, contested the notice of motion taken out for appointment of receiver and injunction in both of which ex parte order was made would not constitute a step in the proceedings as would disentitle the defendant to an order under s.34.
+20. In Queens College Kanetra & Anr. v. The Collector, Varanasi & Ors.,( (AIR 1974 All. 134 1974 Indlaw ALL 246)) the defendant first applied for stay of proceedings under s. 34 and after the court granted stay of proceedings requested the court that the ex parte ad interim injunction be vacated. Two objections were taken on behalf of the plaintiffs to this request of the defendant. One being that when the suit is stayed the court has no jurisdiction to deal with any part of the suit and secondly that if the application for ad interim injunction had been contested before obtaining stay of the suit it would have been a step in the suit and the defendant would not have been entitled to an order for stay of the suit and, therefore, his action constituted a step in the proceeding. The Court negatived both the contentions and observed that there could be no doubt that the Act of the defedant to get an ex parte order of injunction vacated does not indicate an unequivocal intention to proceed with the suit and to give up the right to have the matter disposed of by arbitration. In reaching this conclusion the Court approved the decision of the Madhya Pradesh High Court in Sansarchand and the decision of the Punjab High Court in M/s. Charandas & Sons v. M/s. Harbhajan Singh Hardit Singh.((AIR 1952 Punj. 109))
+In Sri Ram Shah v. Mastan Singh & Ors.,((AIR 1970 All. 288 1977 Indlaw ALL 247)) a Division Bench of Allahabad High Court approved the decision in Queens College Kanetra.
+21. In Biswanath Rungta v. Oriential Industrial Engineering Co. Pvt. Ltd. & Ors.,( (AIR 1975 Cal. 222 1974 Indlaw C.A.L 190)) a learned single Judge of the Calcutta High Court after referring to the decision of this court in Janki Saran Kailashchandra held that when the defendant sought to circumvent the ex parte injunction obtained by the plaintiff he could not be said to have taken such a step in the proceeding as would disentitle him to a relief under s. 34.
+In Stata of Gujarat & Ors. v. The Ghanshyam Salt Works.((AIR 1979 Guj. 215)) a learned single Judge of the Gujarat High Court accepted the Allahabad, Punjab and Madhya Pradesh decisions as laying down the correct law and dissented from the view raken in the earlier Calcutta and Madras cases. The learned judge was of the view that appearing and contesting an interim injunction application would not constitute such a step as would disentitle the defendant to an order under s. 34. While reaching this conclusion he observed that the question as to interim relief is decided only on the basis of the prima facie case and nothing is decided finally. In such a case, therefore, to prevent a defendant from contesting the I.A. on the pain of losing his right to get the dispute decided by arbitration may, in a given case, work injustice, and a functional approach in the matter of interpretation of the relevant words is called for.
+22. In Arjun Agarwalla v. Baidya Nath Roy & Ors.,((A.I.R. 1980 Cal. 354 1980 Indlaw C.A.L 237)) a learned single Judge of Calcutta High Court did not follow the earlier Calcutta decisions in view of the decision of this Court in Janki Saran's case and agreed with the decision in Biswanaih Rungta's case. In M/s. Bhonrilal Hiralal & Ors. v. Prabhu Dayal & Anr.,((AIR 1980 Raj. 9 1979 Indlaw RAJ 63)) a learned single Judge of the Rajasthan High Court after a review of large number of decisions agreed with the Allahabad, Bombay and Madhya Pradesh and later Calcutta decisions and held that appearing to contest an interlocutory application is not a step in the proceedings as would disentitle the defendant to an order under s. 34. We would now refer to the set of decisions which take the contrary view. In Subal Chandra Bhur v. Md. Ibrahim & Anr.(AIR 1943 Cal. 484 1943 Indlaw C.A.L 139) S.R. Das, J., after referring to Ives & Barker v. Willans,( [1894] 2 Ch. 478) and two earlier decisions of the Calcutta High Court concluded that in order to constitute a step in the proceedings the Act in question must be: (a) an application made to the Court either on summons; or (b) such an act as would indicate that the party is acquiescing in the method adopted by the other side of having the disputes decided by the Court. The second test is beyond question invariably followed because if the party entitled to the benefit of arbitration agreement by taking such step in the suit indicates that it is acquiescing into the method adopted by the other side for resolution of dispute, such party cannot at a later stage seek to enforce the arbitration agreement by praying for stay of the suit. But with respect, merely making some applications in the suit without examining the purpose, object and implication of making the application would not always constitute such step as would disentitle the party making such application from seeking relief under s. 34 on the short ground that by merely making the application it has either abandoned its right to enforce the arbitration agreement by praying for stay of suit or has acquiesced into the mode adopted by the opposite party for resolution of dispute.
+23. Every application by a party in the suit has to be examined keeping in view the purpose and the object in making the application and what does the conduct of the party making the application disclose. After formulating the aforementioned test the learned judge proceeded to apply the test to the facts before him with which we are not concerned. This decision was followed by the same High Court in Amritraj Kothari v. Golcha Financiers,(A.I.R. 1966 Cal. 315 1965 Indlaw C.A.L 1440) and it was observed that it is difficult to make a distinction between filing a written statement in suit and filing an opposition to an interlocutory application in that suit-both of them are 'taking step in the suit'. The decision in Sansarchand Deshraj was dissented from. It may, however be pointed out that in the later decisions in Biswanath Rungta and Arjun Agarwalla, the same High Court after referring to the aforementioned two decisions took the contrary view for which reliance was placed on the decision of this Court in Janki Saran's case. The test formulated by the Calcutta High Court in the recent decisions is that the step which would disentitle the defendant from taking the benefit of s. 34 must be such step unequivocally showing that the party had acquiesced in the mode of resolution of the dispute adopted by the other side or had abandoned its right to enforce the arbitration agreement. It was further observed that if an injunction is obtained or a receiver is appointed or a prayer to that effect is made, any step taken to get the order vacated or circumscribe the injunction without in any way touching upon the main dispute in the plaint would not be such a step as would disentitle the party from obtaining stay of the proceedings. To that extent the earlier Calcutta view is whittled down and the later decisions have adopted the trend of decis ions in other High Courts.
+24. The earliest decis ion of the Madras High Court is P. Gannu Rao v. P. Thiagaraja Rao & Anr.(A.I.R. 1949 Mad. 582 1947 Indlaw MAD 238) Examining the ambit of the expression 'taking step in the proceedings', it was held that if something is done by the party concerned which is in the nature of an application to the court it will necessarily come under the category of a step in the proceedings. After formulating this test the Court held that when ex parte interim injunction was served upon the defendant and the defendant appears and prays for modification of the injunction it constitutes a step in the proceedings which would disentitle him from obtaining stay of the suit. In reaching this conclusion the Court amongst others placed reliance on the decision of Das, J. in Subal Chandra Bhur's case. The Madras High Court has consistently followed this view in M/s. Bortes S.A. v. Astouic Compania Naviors S.V., & S. Ramalingam Chettiar v. S. Sarveswaran & Ors 1976 Indlaw MAD 346.
+The Delhi High Court in M/s. Dadri Cement Co. & Anr. v. M/s. Bird & Co. Pvt. Ltd., after referring to a large number of decisions but particularly the Madras cases and early Calcutta cases ultimately based the decision on the facts of the case. The Court distinguished the decision of the Madhya Pradesh High Court in Sansarchand Deshraj's case observing that that is the decision based on the facts of that case. The Delhi High Court has not addressed itself to the controversy under discussion.
+25. In Kunta Malla Reddy v. Soma SrInivas Reddy & Ors 1977 Indlaw AP 144., It was held that the expression 'steps in the proceedings' in s. 34 also comprehends step in interlocutory proceedings also. In reaching this conclusion reliance was placed on the decis ions of the Madras High Court. A review of these precedents would unmistakably indicate that the trend of the authorities points in the direction of not treating every application made in the suit as a step in the proceeding nor entering appearance with a view to contesting the petition for interim relief such as injunction or appointment of receiver as being steps in the proceedings. Therefore, with respect, the decisions taking the contrary view do not commend to us. It is at this stage that we must refer to the decision in Janki Sarcn's case in some detail. In that case Janki Saran Kailashchandra filed a suit against State of U.P. and Divisional Forest Officer, Bijnor for recovery of damages alleging breach of contract. The summons in the suit issued to the State of U.P. was served on the District Government Counsel. On 2 September 1966, the District Government Counsel filed an appearance slip in the Court and also put in a formal application praying for one month's time for the purpose of filing written statement. On 1 October 1966 the District Government Counsel filed an application under s. 34 of the Act pleading that there was an arbitration clause in the contract between parties to the suit and the State of U.P. being willing to refer the matter to arbitration the suit should be stayed. The trial court granted the motion for stay of suit. On appeal the High Court held that the Action of the District Government Counsel in applying for time to file the written statement amounted to taking a step in the proceedings within the meaning of s 34 of the Act, and set aside the order of the trial court and rejected the request for stay of proceedings. State of U.P. approached this Court against the order of the High Court. Rejecting the appeal this Court observed as under:
+26. "To enable a defendant to obtain an order staying the suit, apart from other conditions mentioned in s. 34 of the Arbitration Act, he is required to present his application praying for stay before filing his written statement or taking any other step in the suit proceedings. In the present case the written statement was indisputably not filed before the application for stay was presented. The question is whether any other step was taken in the proceeding as contemplated by s. 34, and it is this point with which we are directly concerned in the present case. Taking other steps in the suit proceedings connotes the idea of doing something in aid of the progress of the suit or submitting to the jurisdiction of the Court for the purpose of adjudication of the merits of the controversy in the suit"'
+The view herein taken not only does not run counter to the view we have taken but in fact clearly supports the view because the pertinent observation is that taking step in the proceeding which would disentitle a party to obtain a stay of the suit must be doing something in aid of the progress of the suit or submitting to the jurisdiction of the court for the purpose of adjudication of the merits of the controversy in the suit. In other words, the step must aecessarily manifest the intention of the party to abandon or waive its right to go to arbitration or acquiesce in the dispute being decided by court. In fact, the view taken in this case should have quelled the controversy but it continued to figure in one form or the other and that is why we have dealt with the matter in detail.
+27. In this context it is advantageous to refer to the provision contained in s. 4 of Arbitration Act, 1950, of the United Kingdom. It provides that in order to be eligible to obtain stay of proceedings the defendant must have taken no steps in the proceedings after appearance. Analysing what constitutes step in the proceedings, inter alia, it has been held that the filing of affidavits in answer to an application by the plaintiff for appointment of receiver does not amount to taking a step in the proceeding (Check :Zalinoff v. Hammond referred to in Halsbury's Laws of England, 4th End, Vol. 2, para 563 note 12). Russell on Arbitration, 19th Edn., page 183, under the heading "steps held not to be in the proceedings", notes that filing affidavits in reply to plaintiff's affidavits in support of a motion for a receiver in a partnership action is not a step in the proceedings. There are 5-6 other situations noticed by the author which, when individually analysed, would show that the steps taken with reference to interlocutory proceedings are ordinarily not held as steps in the proceedings.
+Having thus critically examined both on principle and precedent the meaning to be given to the expression 'taking steps in the proceedings,' we are clearly of the view that unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration, any other step would not disentitle the party from seeking relief under s. 34. It may be clearly emphasised that contesting the application for interim injunction or for appointment of a receiver or for interim relief by itself without anything more would not constitute such step as would disentitle the party to an order under s. 34 of the Act.
+28. Reverting to the facts of this case it is crystal clear that the defendants had taken no steps in the proceedings which would disentitle them to a relief under s. 34. Suit was filed on 1 June 1981, impleading two defendants, Food Corporation of India 1st defendant and Shyam Narain Nigam, 2nd defendant, being the District Manager of the 1st defendant Corporation. Alongwith the plaint a notice of motion was taken out for ex parte ad interim injunction. The Court issued notice on the notice of motion and made it returnable on the next day, i.e. 2 June 1981. When the matter was placed on Board of the Court on 2 June 1981, the proceedings show that the District Manager, 2nd Defendant was served and appeared through Advocate Shri N.K. Modi. Defendant 1 was shown absent with an endorsement 'the summons showing service not received back'. Then comes what transpired on that day as disclosed in the proceedings of the day. The same may be extracted:
+"Shri Modi filed Vakalatnama on behalf of defendant No. 2 and prayed for time for reply and arguments to the plaintiff's application for temporary injunction. Plaintiff's counsel has no objection. Therefore, request is accepted. For reply arguments and awaiting service on 3rd June 1981."
+29. On 3 June 1981, an application for stay of suit was made on behalf of the 1st defendant under s. 34. Ex facie, the proceedings did not disclose any step having been taken by the 1st defendant in the proceedings as would disentitle it to an order under s. 34. 2nd defendant was impleaded in his official capacity. Assuming the application of the 2nd defendant for filing reply to the interim injunction application also binds the 1st defendant though it was not served with the summons yet an application seeking time to file reply to an interim injunction application cannot be said to be a step in the proceedings as would display an unequivocal intention to proceed with the suit or would disclose that the defendants had acquiesced into the resolution of dispute by the court or had abandoned the rights under the arbitration agreement.
+30. The learned judge also negatived the prayed for stay for the additional reason that the 1st defendant had not complied with another condition for relief under s. 34. The learned judge found that in the application for stay the applicant had not stated that at the time when the proceedings were commenced it was ready and willing to do all things necessary to the proper conduct of the arbitration and still remains ready and willing to do the same. The learned judge held after referring to the averments in the application for stay that there is no averment to that effect. Plaintiff contesting the application had not raised this contention before the trial court and the first appellate court and that becomes evident from what the learned judge has stated in the judgment that both the courts have not taken into account this aspect of the case at all. Obviously the learned judge ought not to have permitted the contention while hearing a revision petition under s. 115 of the Code of Civil Procedure. But apart from this, the finding of the learned judge is contrary to record. The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that 'the defendant is ready and willing (ichhuk) for this purpose. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression 'for this purpose' which would imply that the Ist defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the Ist defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned judge was clearly in error in interfering with the order of the trial court confirmed by the Ist appellate court on this ground also.
+Accordingly we hold that the learned judge of the High Court was clearly in error in interfering with the order made by the trial court and confirmed in appeal granting stay of the suit. The judgment of the High Court is accordingly set aside and the one made by the trial court and confirmed in appeal is restored with no order as to costs.
+Appeal allowed.

Object_casedocs/C1007.txt

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+Jawaharlal Nehru Technological University v Smt. T. Sumalatha &Amp; Ors.
+Supreme Court of India
+
+11 August 2003
+Appeal (civil) 4094 of 1998
+The Judgment was delivered by : P. Venkatarama Reddi, J.
+1.  Respondents 1 to 4 were appointed as Investigators on a consolidated pay in the Nodal Centre set up in the appellant University under a scheme known as National Technical Manpower Information System (NTMIS) sponsored by the then Ministry of Education and Culture, Government of India.
+2.  They are all Graduates. They were appointed on various dates between 1985 and 1991. Initially, their appointment was for 89 days and their services were being extended from time to time on similar terms. The consolidated pay was revised twice and with effect from 7.3.1997 they have been drawing a sum of Rs.2,475 p.m. as lump sum pay. The 5th respondent was appointed as Attender-cum-Sweeper in the year 1986 initially on daily-wage basis. Later on, she was placed on consolidated pay and her appointment too was being renewed from time to time. It is not in dispute that they were all appointed by the competent authorities of the University and the administrative control rests with the University.
+3.  It is seen from the communication dated 9th November, 1983 from the Union Ministry of Education that a scheme known as 'National Manpower Information System' was evolved by the Government of India. Its objective is
+"To provide up to date and meaningful manpower information on a continuing basis to enable the concerned authorities to anticipate areas of growth in the field of Science and Technology and consequently plan for technical manpower development on the proper lines".
+4.  Under that scheme, the NMIS will have a Lead Centre in the Institute of Applied Manpower Research attached to the Ministry of Education and 17 Nodal Centres in the selected higher institutes of Engineering and Technology. The Lead Centre will be coordinating with the functions of various Nodal Centres and oversee the proper functioning of those Centres. The appellant, JNT University, Hyderabad is one of the institutions selected for the establishment of Nodal Centre. The Nodal Centres would be mainly concerned with the collection of data and the preliminary processing of data so as to make it suitable for further processing in a computer.
+5.  The Nodal Centre is also expected to undertake analytical work wherever required. An advisory body has been formed for each State so as to provide guidance and support to the Nodal Centres. The Head of the institution of the Nodal Centre, the Director of Technical Education of the State and some other officials are its members. Nodal Centres were authorized to appoint the staff- Project Officer (Reader), P.A., Computer Operator and Research Associate (one post each) for whom the Scales of Pay are specified. It appears that these posts were filled up by drawing the personnel from University on deputation. We are more concerned here with para 5 of the scheme which reads as follows:
+"5. besides, the nodal Centres shall also be entitled to collect the necessary data through appropriate programming by employing students of senior classes i.e., postgraduate level and Ph.D. level during the vacation periods. The date thus collected can be processed by the nodal centres on a continuing basis round the year. Each nodal centre will be entitled to assistance from senior students amounting to 55 man months in a year. Each student would be paid by the concerned nodal centres at the rate not exceeding Rs.500/- per month. In all each nodal centre would be entitled to incur expenditure not exceeding Rs.27, 500/- per annum for collection of data by employing students of the senior classes."
+6.  It appears that the Nodal Centre was sanctioned initially for a period of one year and nine months. However, it is being continued. It is not in dispute that the Nodal Centre is financed entirely by the Ministry of Education which releases the grants from time to time. The allocation of funds for various items of expenditure including staff salaries is specifically mentioned in the order releasing recurring grant. The consolidated pay was enhanced by the Government of India on two occasions, while releasing the grants. As the Postgraduate Engineering students referred to in para 5 of the scheme were not available, respondents 1 to 4 were recruited as Investigators on consolidated pay.
+7.  Inspired by the Judgment of Andhra Pradesh High Court in a writ petition filed by the employees of the University who were appointed temporarily on consolidated pay and working in the self- supporting schemes of the University, Respondents 1 to 5 herein filed Writ Petition u/art. 226 of the Constitution in the High Court of A.P. seeking a writ or direction to regularize their services and to accord them regular pay-scales. The High Court allowed the writ petition and gave a direction to the University to regularise the services of the writ petitioners if they had completed three years of service and they are qualified and the posts are advertised by the University.
+8.  The State Government was also directed to take a final decision on the proposal of the University to create additional posts within the specified time limit. Review petition was filed by the University contending that the Division Bench decision on which the learned Single Judge of the High Court relied upon pertains to University employees working on temporary or ad hoc basis whereas the writ petitioners in the present case are entirely governed by the scheme formulated by the Government of India. In the Review Petition, the Learned Judge focused his attention on GO MS No. 212 (Finance & Planning) dated 22.4.1994 issued by the Government of Andhra Pradesh and held that by virtue of the said GO which is applicable to the University employees as well the service of the writ petitioners No. 1 to 3 and 5, who completed more than five years of service on the crucial date mentioned in the GO, was liable to be regularised. As regards the 4th writ petitioner, who did not complete three years of service by 25.11.1993, the learned Judge directed the University to send proposal to the State Government for creation of an additional post and the Government should take a decision within one month from the date of the receipt of proposal.
+9.  The High Court further observed that after the post is sanctioned, the University shall advertise and fill up the vacancy by appointing petitioner No. 4 if he is otherwise qualified. The Review Petition was disposed of accordingly. It may be stated that the High Court did not accept the contention of the University that the writ petitioners are not employees of the University to whom the benefit of GO MS No. 212 could be extended. Against the order of the learned Single Judge in the Review Petition, the University filed Writ Appeal which was dismissed by the Division Bench on 3.4.1997 affirming the order of the learned Single Judge. The Division Bench observed that "all employments in the institute, whether grant for the post comes from the State Government or from the Central Government, are employments in the institute which is an agency of the Government of the State of Andhra Pradesh and thus all Government orders intended to apply to such agency of the Government of the State have to be applied to it."
+10.  On appeal by the University, this Court stayed the operation of the judgment of the High Court. We are of the view that the High Court fell into error in applying GO No. 212 dated 22.4.1994 to the case of the writ petitioners. The observations of the Division Bench that the Nodal Centre is an agency of the State Government, is obviously without factual and legal basis. The terms and features of the scheme unmistakably indicates that the University a Centre of excellence chosen by the Ministry of Education, acts for and on behalf of Government of India and the Nodal Centre is nothing but the reflection of Central Government acting through the media of University. The entire funding is done by the Central Government and the Nodal Centre functions under the overall supervision and guidance of the Lead Centre attached to the Ministry of Education. Even the details of expenditure including the payments to be made to the staff of various categories are spelt out in the scheme as well as in the orders releasing the annual grants. There is, therefore, an obvious fallacy in the reasoning of the High Court that the 'institute' (Nodal Centre) acts as an agency of the State Government. The State Government does not come into the picture at all.
+11.  In our view, it would be wholly inappropriate to apply GO No. 212 to the temporary staff appointed by the University exclusively for the Nodal Centre set up under the auspices of the Government of India. GO MS No. 212 is not intended to cover the employees such as the writ petitioners who are engaged in the Nodal Centre which for all practical purposes acts as a wing of the Central Government. In one sense the writ petitioners may be regarded as employees of the University as they were appointed by the University and the disciplinary control vests with the University. In another sense, they are protgs of the Central Government. GO 212 has to be understood and applied, having due regard to its tenor and purpose. The GO, no doubt, envisages regularization of the services of the persons appointed on daily wages or consolidated pay that fulfil the conditions lay down therein.
+12.  But, it is intended to cover the categories of employees working in the State Government departments/institutions or bodies controlled or administered by the State Government and in respect of whom the State Government or such bodies have to bear the financial burden on account of regularization. The last para of GO No. 212 gives the clear indication of its purport and intendment. The said para reads as under:
+"All the Departments of Secretariat/Heads of Departments are requested to process the cases of absorption/ regularization of services of NMRS/Daily Wage employees etc., in pursuance of the above scheme and obtain the clearance of Govt. in Finance & Planning (PW PC III) Department before orders are issued for such regularization or absorption."
+13.  Can it be said that by virtue of this provision, the State Government assumes the responsibility of absorbing the staff employed in the organizations or establishments with which it has no administrative or financial nexus, merely because an instrumentality of the State is involved in managing it, that too, in a limited sense? The answer could only be in the negative. When the State Government or its instrumentalities have not created the posts on their own and do not bear any part of financial burden, the question of getting the clearance from the Finance and Planning department of the Government for the purpose of regularization or absorption does not arise. Viewed from any angle, GO 212 would be wholly out of place for those working in the Nodal Centre which is created and nurtured by the Central Government. It is not within the domain of the State Government or even University to regulate the staff pattern or the monetary benefits of the staff working therein, without the approval of Central Government. Therefore, no directions should have been issued to the State Government or to the University to regularize the services of respondents 1 to 5, if necessary, by creating additional posts.
+14.  The next question is whether the Central Government i.e., Respondents 7 & 8, should be directed to take steps to create posts with appropriate pay-scales in the Nodal Centre for the purpose of absorbing respondents 1 to 5 on regular basis, by reason of their longstanding service. It is pointed out by the learned counsel for the respondent-employees that the Nodal Centre, though conceived as a temporary scheme, has come to stay for nearly two decades by now and its relevance is not lost in the present day context and the possibility of its disbandment is remote. The learned counsel therefore contends that there is every justification for absorbing the concerned respondents on regular basis in recognition of their long satisfactory service.
+15.  The learned counsel further contends that the adhoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularization. There is nothing on record to show that the concerned employees were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre. Secondly, having regard to the background in which respondents 1 to 4 were drafted to perform the job assigned to them, it is difficult to concede to them the status of regular Government servants.
+16.  As seen earlier, the scheme envisaged the employment of senior Engineering students during vacation periods and for payment of remuneration for the work done by them. As the students were not prepared to take up the work of investigation as stated in the counter- affidavit filed in the High Court, the University authorities thought of inducting respondents 1 to 4 to perform the job which was expected to be done by the Post-Graduate students on part-time basis. The appointment of respondents 1 to 4 was thought of only by way of substituting them for the Engineering students who, in the normal course, would have taken up the work pursuant to the scheme. The plea to regularize their services is misconceived having regard to the background and circumstances in which respondents 1 to 4 came to be appointed. As regards the 5th respondent, the position is still worse. No post of Attender has been sanctioned under the scheme. However, as seen from the counter-affidavit filed in the High Court, her salary was being met out of the funds allocated for office expenditure.
+17.  Though the plea of regularization in respect of any of the five respondents cannot be countenanced, the respondent-employees should have a fair deal consistent with the guarantee enshrined in Arts. 21 and 14 of the Constitution. They should not be made to work on meagre salary for years together. It would be unfair and unreasonable to extract work from the employees who have been associated with the Nodal Centre almost from its inception by paying them remuneration which, by any objective standards, is grossly low. The Central Government itself has rightly realized the need to revise the consolidated salary and accordingly enhanced the grant on that account on two occasions.
+18.  That revision was made more than six years back. It is high time that another revision is made. It is therefore imperative that the concerned Ministry of the Union of India should take expeditious steps to increase the salary of Investigators viz., Respondents 1 to 4 working in the Nodal Centre in Hyderabad. In the absence of details regarding the nature of work done by the said respondents and the equivalence of the job done by them to the other posts prevailing in the University or the Central Government institutions, we are not in a position to give any direction based on the principle of 'equal pay for equal work'.
+19. However, we consider it just and expedient to direct Respondent No.7 or 8, as the case may be, to take an expeditious decision to increase the consolidated salary that is being paid to respondents 1 to 4 to a reasonable level commensurate with the work done by them and keeping in view the minimum salary that is being paid to the personnel doing more or less similar job. As far as the 5th respondent is concerned, though we refrain from giving similar directions in view of the fact that the post is not specifically sanctioned under the scheme, we would like to observe that the Central Government may consider increasing the quantum of office expenditure suitably so that the University will be able to disburse higher salary to the 5th respondent.
+20.  In the result, we set aside the judgment of the High Court and allow the appeal subject however to the directions given and observations made in this judgment. No costs.
+Appeal allowed

Object_casedocs/C1008.txt

@@ -0,0 +1,24 @@
+Krishna Mohan Shukla v Union of India and Others
+Supreme Court of India
+
+25 January 2000
+Writ Petition (Civil) 66 of 1995
+The Order of the Court was as follows :
+Writ Petition (Civil) No. 66 of 1995.
+1.  We have heard the petitioner and also the counsel for the respondents.
+2.  Numerous orders had been passed earlier in this writ petition dealing with various aspects of the case. On 16th March, 1998, this Court required the petitioner to give in writing the issues which survived in the writ petition in respect of which directions from this Court were necessary.
+3.  Pursuant to the said directions, the petitioner filed an affidavit dated 16th April 1998, Two categories under which issues were stated to arise were : Firstly, alleged arbitrary functioning of the Bhopal Gas Relief Tribunal; and secondly, with regard to the medical facilities.
+4.  In relation to the allegation regarding the arbitrary functioning of the Tribunal, the grievance was that there was defective medical categorisation, preparation of illegal compensation and categorisation list, holding of so-called Lok Adalats which was illegal, arbitrary manner in which the suo motu revisional powers were exercised, etc.
+5.  After the Bhopal Gas Tragedy, a Scheme had been prepared in 1985 by the Government of India. Para 5 of the said Scheme provided for categorisation and registration of claims. Sub-clause (2) dealt with different categories under which the claims could be registered. Pursuant thereto, the Central Government under sub-clause (2) of Para 11 of the Scheme determined the total amount of compensation which could be apportioned for each category of'claims and the quantum of compensation payable in general in relation to each type of injury or loss.
+6.  One of the grievances which has been made before us is that the Deputy Commissioners adopted and formulated their own yardsticks for the purpose of paying compensation to the claimants. For example, for chronic conjunctivitis, proposed amount of compensation was Rs. 35,000. It is submitted by the petitioner that mentioning these amounts as compensation payable was arbitrary and contrary to the Scheme.
+7.  There is no grievance with regard to the quantum of compensation which has been specified by the Government under. For each category, the amount of compensation payable is specified. In two cases, the amount specified is fixed, whereas in the case of other categories there is a scale which had been provided within which the amount of compensation is required to be determined. On 6th December, 1997, in the proposed compensation amount, it was clarified that the figures mentioned therein were only guidelines and were not conclusive as to tie amount of compensation which was payable and if the Deputy Commissioner or the Additional Commissioner was satisfied then for reasons to be recorded in writting, they could award compensation in excess of the amount indicated therein.
+8.  As we see it, the limits within which compensation can be awarded for claimants falling under different categories, the Central Government has specified the amounts, Specific ailments are not mentioned therein. In practice, the Deputy Welfare Commissioner and the Additional Welfare Commissioner have to deal with ailments and the question would arise as to under what category of Para 5 of the Scheme would they fall and secondly as to what Is the specific amount which is payable to them within the scale. The Committee of Deputy Commissioners appear to have formulated a yardstick which would obviously avoid delay in the determination of the amount of compensation which is payable. In a modification carried out on 6th December, 1997, it has been made clear, and in our opinion rightly so, that the amount determined as compensation for different types of ailments is not final. It will be subject to determination afresh, if called in question, either in appeal or in revision before the Welfare Commissioner. We would at this stage like to emphasise that we have seen orders pased by the Welfare Commissioner where he has entertained revision petitions against the orders in appeal passed by the Additional Commissioner. A Welfare Commissiner is a sitting Judge of the Madhya Pradesh High Court and normally, therefore, the claimant should have no cause of grievance after the decision by the Welfare Commissioner. Even if thereafter there is some grievance, the right of judicial review, inter alia, provided by Articles 226 and 227 of the Constitution is always available. There can be little doubt that the aggrieved persons are entitled to receive fair and just compensation and/or damages due to them. There is now a system in place and any claims which are made, have to be determined within this system. There is first determination by the Deputy Welfare Commissioner against which an appeal can be filed to the Additional Welfare Commissioner and thereafter a revision to the welfare Commissioner. If even then there is a grievance of a claimant, proper remedy is to approach the High Court who would be in a position to deal with a case more expeditiously and give relief to the individual claimant, where it is called for, without undue expense, rather than approaching this Court under Article 32 or Article 136 of the Constitution.
+9.  As far as the grievance of the petitioner that the Lok Adalats which were constituted were sham and all those decisions should be set at naught, we are not inclined to accept the said contention. It appears that grievance with regard to Lok Adalats was made before this Court whereupon order dated 7th November, 1997 was passed in which it was, inter alia, observed as follows :
+''...... In the circumstances it is directed that the claimant falling in Medical Category 'C' and above who feels aggrieved by the amount of compensation awarded by the Lok Adalats and the appeal being not entertained by the Additional Welfare Commissioner against such award may file a review petition for review of the award. Such review petition shall be considered by the concerned Additional Welfare Commissioner. The office of the Welfare Commissioner shall issue a public notice with regard to above direction given by this Court and publish it in a local newspaper so that the claimants may know that they can file a review petition. The review petition should be filed within two months from the date of the publication of the notice."
+10.  This order, inter alia postulated the entertaining of review petitions in cases of claimants failing under Medical Category 'C' and above and whose appeals had not been entertained by the Additional Welfare Commissioner and the review petitions could be filed within two months of the public notice being issued in the local newspapers. We are informed that such public notice was issued. This direction, to our mind, would clearly safeguard the interest of those persons who really felt aggrieved by the decision of the Lok Adalats and had then sought to challenge the same.If there was no challenge to the agreement arrived at in the Lok Adalats, the order dated 7th November, 1997 did not postulate giving a further opportunity. The said decision of 7th November, 1997 of this Court does not require any reconsideration, even though the petitioner submitted that this should be done.
+11.  The grievance is also made with regard to lack of proper medical research and the non-functioning of the hospitals and generally with regard to the medical facilities. The issues raised in this regard are converted by Writ Petition (Civil) No. 50 of 1998 (Bhopal Gas Peedith Manila U. Sangat. & Ors. v. U.O.I & Ors. 1999 Indlaw SC 1050). In our opinion, it will be more appropriate to deal with these aspects of the case, namely pertaining to the furnishing of the medical facilities in Writ Petition (C) No. 50 of 1998. In that petition, pleadings are complete, affidavits have bees filed and some orders passed. The petitioner will be at liberty to assist the learned counsel appearing in Writ Petition (Civil) No. 50 of 1998. If necessary, even though we are disposing of this writ petition, the counsel appearing in Writ Petition (Civil) No. 50 of 1998 will be at liberty to refer to any affidavit or document which may have been filed in this writ petition.
+12.  This writ petition is disposed of in the aforesaid manner. It is clarified that if any of the claimants has any grievance against an order passed by the Welfare Commissioner or by the Tribunal, it is open to the claimant to seek judicial review, but first it must be sought before the High Court rather than filing a writ petition under Article 32 or a special leave petition under Article 136 directly in this Court. Contempt Petition (C) No. 364/1998 in W.P. (C) No. 66/1995
+13.  The petitioner is permitted to withdraw this petition with liberty to file a fresh petition giving all necessary particulars. This contempt petition is, accordingly, dismissed as withdrawn.
+14.  SLP(C) No. 1107/1998, SLP(C) No, 1187/1999, SLP(C) No. A 12529/1998, SLP(C) No. 12875/1997, SLP(C) No. 15822/1996 SLP(C) No. 17519/1998, SLP(C) No, 18126/1998, SLP(C) No. 18130/1995, SLP(C) Nos. 1643-44/2000 (CC 1979-80/99), SLP(C) No.20742/1998, SLP(C) No.219I/1999. C.A. No. 2542/1999, SLP(C) No.26872/1995, SLP(C) No.26967/1995, C.A. No. 3004/1999, C.A. No.3025/1999, CA. No. 3332/1996, SLP(C) Nos. 1645-46/2000 (CC 3723-24/99), SLP(C) No. B 1647/2000 (CC 4678/96), SLP(C) No. 5005/1999, SLP(C) No. 5065/1996, SLP(C) No. 597/1998, SLP(C) No. 6140/1999, SLP(C) No. 8942/1996, SLP(C) No. 9724/1999, SLP(C) No. 9729/1999 and SLP(C) No. 9753/1999]
+15.  In our opinion, all these matters should be heard by the High Court of Madhya Pradesh who will deal with the individual cases on the basis of the pleadings before it or such pleadings which may be filed. We direct all these matters to be transferred to the High Curt who will treat them as petitions under Articles 226 and 227 of the Constitution and deal with them in accordance with law as expeditiously as possible. Where the matter arises against an order of the Welfare Commissioner, the same should be heard by a Division Bench, The Hon'ble Chief Justice of the High Court will pass appropriate orders in this behalf.
+Appeal Allowed

Object_casedocs/C1009.txt

@@ -0,0 +1,100 @@
+Supreme Court Legal and Committee Representing v Union Of India
+Supreme Court of India
+
+7 October 1994
+W.P. (Cr.) No. 307 of 1993 (Under Article 32 of the Constitution of India)
+The Judgment was delivered by: AHMADI, J.
+1. The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), hereinafter alluded to as "the Act", was enacted inter alia to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and for matters connected therewith. The enactment received the President's assent on 16-9-1985. The dictionary of the Act is to be found in S. 2 thereof. S. 2(xxix) says that words and expressions used in the Act and not defined but defined in the Code of Criminal Procedure, 1973, hereinafter called "the Code", shall have the meanings assigned to them in the Code. The Act is divided into six chapters comprising 83 sections.
+Since in the instant case we are concerned with only a few provisions we need not examine the scheme of the Act. We had an occasion to examine the scheme of the Act in some detail in Raj Kumar Karwal v. Union of India ( 1990 Indlaw SC 990 : 1990 Indlaw SC 990). Chapter IV defines the offences and prescribes stringent punishments, with minimum punishments and fines for them. For certain offences the punishment prescribed can extend to rigorous imprisonment for 20 years and a fine of Rupees two lakhs, with a minimum rigorous imprisonment of 10 years and a fine of Rupees one lakh.
+2. By S. 37 offences punishable under the Act are made cognizable and non-bailable. Where the offender is accused of an offence punishable with imprisonment of 5 years or more, the section provides that he shall not be released on bail or on his own bond unless (i) the Public Prosecutor has had an opportunity to oppose the bail and (ii) if bail is opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty and is not likely to indulge in the commission of similar offences.
+3. By Amending Act No. 2 of 1989, styled as the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, far-reaching changes came to be made in the Act. This Amending Act came into force with effect from 29-5-1989, vide S. O. 379(E) of even date. By this Amending Act the punishment prescribed under the newly added Section 31-A for certain offences extended to death penalty also. S. 36 came to be replaced by a new provision and Sections 36-A to 36-D were inserted for the first time. The substituted Section 36, insofar as relevant for our purpose reads thus
+"36. Constitution of Special Courts. - (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification
+(2) A Special Court shall consist of a Single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court."
+4. Only a Sessions Judge or an Additional Sessions Judge is eligible to be appointed a Special Judge. Under Section 36-A, all offences under the Act 'shall' be triable only by the Special Court constituted for the area in which the commission of the offence has taken place. This provision overrides the provisions in the Code. Section 36-B clarifies that appeals and revisions from the orders passed by the Special Courts shall lie to the High Court as if they were passed by a Sessions Court.
+Section 36-C provides for the application of the provisions of the Code to proceedings before the Special Court as if the Special Court is a Court of Session, unless the Act provides otherwise. We then come to Section 36-D which may be reproduced at this stage. It reads
+"36-D. Transitional Provisions. - (1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session
+Provided that offences punishable under Sections 26, 27 and 32 may be tried summarily
+(2) Nothing in sub-s. (1) shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Session under the said sub-s. (1) and the same shall be heard and disposed of by the Court of Session."
+5. It becomes immediately clear that before the introduction of the present group of provisions by Amending Act No. 2 of 1989, the offences under the Act were triable by the ordinary courts under the Code. However, after the enactment of the Act it was expected that speedy trials and harsh punishments would help prevent and combat abuse of and illicit traffic in narcotic drugs, etc., and rid the society of drug menace. But it was soon realised that the aim of bringing the culprits to book with dispatch was not achieved.
+The legislature, therefore, though that the aim of speedy trials may be achieved if Special Courts are constituted to try offences under the Act. This objective is clearly writ large in the text of S. 36 which in no uncertain terms says that the Government may constitute Special Courts "for the purpose of providing speedy trial of offences under this Act". That is why Section 36-A posits that all offences under the Act shall be triable 'only' by the Special Court constituted for the area under Section 36, notwithstanding anything in the Code. Cl. (d) of sub-s. (1) of Section 36-A empowers the Special Court to take cognizance of an offence under the Act upon a police report or upon a complaint made by an authorised officer.
+6. Section 36-C extends the provisions of the Code to proceedings before the Special Court, save as otherwise provided in the Act, so that where the Act does not make any specific provision to the contrary, the Special Court may not be hamstrung and may lean on the provisions in the Code. But then till the establishment of the Special Courts, provisions had to be made to cover the transitional period to avoid a stalemate situation and hence and need for Section 36-D. The importance of this provision is realised when we take notice of the fact that in many State the constitution of Special Courts was delayed by a couple of years or even more
+7. The provision made in Section 36-D assumes considerable importance in deciding the principle question which arises in this case. But before we indicate the backdrop in which the question falls for decision, it may be advantageous to understand the true scope and import of this transitional provision. The section applies to cases where the offence referred to under the Act been committed on or after the commencement of the Amendment Act i.e., 29-5-1989. It has no application to offence committed before 29-5-1989. Offence committed under the Act on and after 29-5-1989 would have to be tried by the Special Court constituted for the area in view of cl. (a) of sub-s. (1) of Section 36-A. But the legislature was aware that there may be a time-gap between the coming into force of the provisions contained in Ss. 36 and 36-A and the constitution of the Special Court for the area concerned.
+It has, therefore, provided that offence committed under the Act on or after 29-5-1989 shall be tried by a Court of Session until a Special Court for the area is constituted under Section 36, notwithstanding anything contained in the Code.
+8. Therefore, offences committed before 29-5-1989 would be continued to be tried by courts constituted under the Code. Sub-s. (2) of Section 36-D clarifies that nothing in sub-s. (1) shall be construed to require the transfer of any proceedings to a Special Court if the Court of Session has taken cognizance of the offence under sub-s. (1). Once the Court of Session has taken cognizance of an offence committed on or after 29-5-1989, at a time when the Special Court was not in existence, such a case will not be required to be transferred to the Special Court subsequently constituted, and the same would have to be heard and disposed of by the Court of Session.
+Thus, proceedings which have commenced before the Court of Session in respect whereof it has taken cognizance before the establishment of the Special Court shall be heard and disposed of by the former which implies that cases pending before the Court of Session in relation whereto it has not taken cognizance would have to be transferred to the Special Court on its constitution
+9. S. 36 of the Act lays down the mode for the constitution of a Special Court. It provides that Government may, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for the areas to be specified in the notification. Therefore, as soon as the notification contemplated by S. 36 is published in the Official Gazette constituting one or more Special Courts for the areas to be specified in the notification, the Special Court comes into existence. Sub-s. (2) says that the Special Court shall consist of Single Judge appointed by the Government in the manner provided by that sub-section. Sub-section (2), therefore, indicates the strength of the Special Court, that is to say it will consist of a Single Judge
+10. We may now give an abridged version of the factual matrix. A large number of cases in relation to offences under the At were detected in Bombay and prosecutions were launched against the offenders. Until 28-5-1989, these cases were being dealt with by courts having jurisdiction under the Code. Judicial Magistrates, where they had jurisdiction, depending on the maximum sentence provided for the offence concerned, dealt with such cases but where the sentence prescribed conferred jurisdiction on the Court of Session, orders of committal of such cases came to be passed. As the number of such cases was large, there was accumulation of work in the Court of Session of Bombay. The Sessions Judge, Bombay, distributed such cases amongst his colleagues who were Additional Sessions Judges.
+However, the distribution was so made that there was accumulation of such work in the Court of Single Additional Sessions Judge, Shri Pathan. After the insertion of Sections 36, 36-A and 36-D by the Amending Act No. 2 of 1989, the State Government published on 4-1-1991, a notification constituting two Special Courts for Greater Bombay. By a subsequent notification dated 6-4-1991 published in the Official Gazette Shri Pathan was appointed a Judge of one of the Special Courts constituted by the notification of 4-1-1991.
+On the retirement of Shri Pathan, Shri Ghare succeeded him with effect from 25-2-1992. When certain bail applications were taken up by Shri Ghare, a contention was raised that in cases in which the Court of Session had taken cognizance before the constitution of the Special Court, the latter had not jurisdiction, a contention which found favour with the learned Judge. This gave rise to the question whether the learned Judge was right in the view taken by him. The issue came up before the Bombay High Court in certain criminal applications preferred by the department as well as the accused persons. Daud, J. who heard these applications put the issue a little broadly, in that, he covered offences committed not only prior to 4-1-1991, the date on which the notification constituting Special Courts was issued and published in the Official Gazette, but also offence up to 5-4-1991, the date on which the notification appointing Shri Pathan was issued and published in the Official Gazette.
+11. This has given rise to the question - when is a court constituted ? Daud, J., after pointing out the divergence of views between different High Courts, approved the view expressed by Hansaria, C.J., (as he then was) in Bhagwan Singh v. State of Orissa ( 1992 (2) CCR 1237 ) departing from the view expressed by Deshpande, J., of the same High Court in Suryakant Ramdas More v. State of Maharashtra ( 1989 Indlaw MUM 242 : (1898) 2 Bom CR 653 (Bom HC). We may incidentally mention that the view expressed by Hansaria, C.J., on the need for a committal order by a Magistrate before the Sessions Judge can take cognizance was not approved by the Full Bench of the Orissa High Court in Banka Das v. State of Orissa ( 1993 (75) CLT 225 (Ori)). Daud, J., also took the view that the Special Court could be said to have been legally constituted on 6-4-1991.
+He, therefore, concluded that in respect of offence committed between 29-5-1989 and 6-4-1991, during which period the Special Courts were not in existence, the Court of Session only could exercise jurisdiction in view of the clear language of Section 36-D. This is how the learned Judge sums up
+"In respect of cases relating to offences committed prior to 28-5-1989, trial of these cases was to be governed under the Code of Criminal Procedure, 1973. In respect of such cases if the Magistrates were empowered to award the sentences prescribed by the different sections, they could deal with the matters. Where the offences were punishable with imprisonment for 10 years and more, the Magistrates had to commit the offenders to stand trial in the Court of Session. The second category was that of persons who had committed offence under the Act between 29-5-1989 and 5-4-1991. Such offences were to be tried by a Court of Session under sub-s. (1) of Section 36-D of the NDPS Act. Judge Ghare seems to have made a distinction between offences committed in the period 4-1-1991 to 5-4-1991. This seems to rest on his making a distinction between the creation of a court and the appointment of a Judge to man it. The distinction is without any significance for the constitution would be incomplete unless a Judge is appointed to man the created Special Court.
+12. The third category would be offences committed after 5-4-1991. Here, the jurisdiction would unquestionably be that of the Special Court. Judge Ghare has to be sustained when he says that he does not have jurisdiction to entertain cases relating to offences committed prior to 4-1-1991. As a matter of fact the disability extends right up to 5-4-1991."
+13. Before Daud, J. rendered his decision on 1-8-1992, the learned Additional Sessions Judge, Shri Ghare had made a reference to the High Court u/s. 395(1) of the Code relating to certain foreign nationals who were languishing in jails for long periods for the commission of offence under the Act. This reference was heard and answered by a Division Bench of the High Court on 18-9-1992. While answering the reference the Division Bench comprising Kurudukar and Saldhana, JJ. dealt with the question regarding the true meaning and scope of Section 36-D(2) of the Act. In doing so it noticed the decision rendered by Daud, J., only a few days before. After referring to the relevant provisions of the Act and the case-law bearing on the point, Kurudukar, J. (as he then was) who spoke for the Bench observed
+"U/s. 36(1) the Government may constitute a Special Court/Courts and such constituted Court/Courts shall be manned by Judges in terms of S. 36(3) of the Act.
+There could be a situation like a present one, where the Government has issued notification constituting Special Court/Courts under the Act, but the notification appointing Judges to man such Court/Courts was not issued simultaneously but issued after some time, then in such a situation Court/Courts constituted under ordinary criminal law of the land (Code) will have jurisdiction to try offences committed under the Act. This period i.e. until Judges are appointed, would be a transitional period covered by Section 36-D(1) of the Act. Section 36-D is a deeming provision and requires to be given its true meaning having regard to the object of Act 2 of 1989. Court of Session will be deemed to be 'as if a Special Court'. Unless we read this deeming provision in Section 36-D(1) of the Act true meaning thereof cannot be assigned and any other construction of this sub-section will render the object in enacting this sub-section nugatory."
+14. Then in the light of what he called the deeming provision, the learned Judge proceeded to ascertain the true meaning of Section 36-D(2), and held that
+"if Section 36-A(1) (a) and 36-D(1) and (2) are read together it leaves no manner of doubt that Section 36-D has been enacted to cover such transitional period where the Special Court is not constituted in the real sense and trial has commenced before the Court of Session"
+The Division Bench then adverted to the views of Daud, J., that unless a Judge is appointed to the Special Court, the Special Court cannot be said to have been constituted under the Act and consequently cases in which cognizance has been taken by the Court of Session upto 6-4-1991 would fall outside the purview of the Special Court, and proceeded to observe:
+"From this unreported decision it appears that the contention as regards deeming provision under Section 36-D was not raised before the learned Single Judge. Consequently, the learned Single Judge had no occasion to consider the effect of the deeming provision contained in Section 36-D(1) of the Act. With great respect to the learned Single Judge, we are unable to agree with the view taken by him in this unreported decision. In the view which we have taken, this unreported decision needs to be overruled and we do so."
+15. The Division Bench in the ultimate concluded that (i) cases filed under the Act prior to 29-5-1989 shall be tried by the Court of Session, (ii) cases filed on and after 29-5-1989 shall be tried by the Special Court constituted under the Act and (iii) if cognizance of a case is taken by a Sessions Court, during transitional period in the absence of constitution of Special Court in the real sense, the Sessions Court shall not be required to transfer the case to be Special Court if it has substantially proceeded with the trial. With respect, there are two aspects of the judgment which are difficult to comprehend, firstly, reference to the deeming provision in Section 36-D(1) - there is no such deeming provision therein - and
+secondly, reference to the constitution of the Special Court in the real sense after overruling Daud, J. that the constitution is complete only after the appointment of a Judge to the Special Court. The Division Bench, therefore, is largely in agreement with the view expressed by Daud, J. except that cases pending with the Court of Session from 4-1-1991 to 5-4-1991 would also triable by that court if it has taken cognizance but here again as pointed out above there is some confusion when the Division Bench carves out an exception that if during the transitional period there is no constitution of the Special Court "in the real sense" and the case has proceeded 'substantially' before the Court of Session, it will not be necessary to transfer it to the Special Court
+16. In order to answer the point arising for our determination we may first refer to a few provisions of the Code. By virtue of S. 4(1) all offences under the Indian Penal Code have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code. S. 4(2) provides that all offences under any other law shall be similarly investigated, inquired into, tried and otherwise dealt with under the Code, subject of course to any law for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. S. 6 provides that except the High Courts and courts constituted under any other law, i.e., other than the Code, there shall be, in every State the following classes of Criminal Courts, namely
+(i) Courts of Session;
+(ii) Judicial Magistrates, First Class or Metropolitan Magistrates;
+(iii) Judicial Magistrates, Second Class; and
+(iv) Executive Magistrates.
+17. The powers of different courts have been indicated in Chapter III. The High Court or Court of Session can try any offence under the Penal Code and pass any sentence authorised by law, but a sentence of death if passed by the Sessions Court would be subject to confirmation by the High Court. A Chief Judicial Magistrate and a Chief Metropolitan Magistrate may pass a sentence for a term not exceeding seven years. A Judicial Magistrate of the First Class and Metropolitan Magistrate are empowered to pass a sentence for a term not exceeding three years. S. 209 provides that when an accused appears or is brought before a Magistrate and it appears that the offence is triable exclusively by the Court of Session, the Magistrate shall commit the case to the Court of Session.
+18. It will, thus, be seen that where an offence is exclusively triable by the Court of Session, the Magistrate is enjoined by law to pass an order committing the case to the Court of Session for trial. Once the case is committed, the Court of Session can take cognizance at any time thereafter
+19. Now under the Act different punishments have been prescribed for different offences ranging from six months to twenty years and even death to those with previous conviction. Therefore, under the Code some of the offences would be triable by a Magistrate of the First Class or Metropolitan Magistrate, some by the Chief Judicial Magistrate or Chief Metropolitan Magistrate and the rest by the Court of Session. This was the position till the Act underwent changes by virtue of the amendments introduced by Amending Act No. 2 of 1989. The introduction of Sections 36, 36-A, to 36-D changed the situation
+20. S. 36 provides for the constitution of Special Courts and Section 36-A(1)(a) says that notwithstanding anything contained in the Code, all offences under the Act shall be triable only by Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. On a conjoint reading of these two provisions it becomes clear beyond any manner of doubt that once a Special Court (or more than one) has been constituted for an are or areas in which the offence has been committed, then notwithstanding anything contained in the Code, the Special Court alone will have jurisdiction and all other courts exercising jurisdiction prior to the constitution of the Special Courts will cease to have jurisdiction.
+Sub-sections 36-A(1)(a) and (d) which also begin with a non-obstante clause - notwithstanding anything contained in the Code - provided that a Special Court may, upon a perusal of the police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the Government concerned authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to S. 190 of the Code. It is clear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36-C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provide in the Act, and says that the Special Court shall be deemed to be a Court of Session.
+21. That brings us to Section 36-D which is a transitional provision. Under sub-s. (1) of Section 36-D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. The non-obstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence committed on or after the commencement of the Amendment Act and no other court including the Magistrate's Court will have jurisdiction to try an offence under the Act. Sub-s. (2) of Section 36-D further provides that nothing in sub-s. (1) shall be construed to require the transfer to a Special Court of any proceeding in relation to an offence taken cognizance of by the Court of Session under sub-s. (1) and the same shall be continued, heard and decided by the latter court.
+As we have pointed out earlier before this group of sections came to be introduced in the Act by the Amending Act 2 of 1989 with effect from 29-5-1989, the offences under the Act were triable by different courts under the Code depending on the punishments provided therefor. But after the introduction of this group of sections in the Act, the legislature, with a view to speeding up the trial provided for the constitution of a Special Court and until such court was constituted it provided by sub-s. (1) of Section 36-B that the Court of Session will have jurisdiction to try any offence committed under the Act; the provisions in the Code notwithstanding.
+22. The effect of this provision is to vest jurisdiction in the Court of Session alone during the transitional period in respect of offences under the Act even where the punishment prescribed is three years or less. Ordinarily the Magistrate's Court would have power to try the offence under the Code but by this provision the power is vested in the Court of Session alone, and therefore, the Courts of the Magistrates, First Class, Metropolitan Magistrates, Chief Judicial Magistrates and Chief Metropolitan Magistrates would cease to have jurisdiction. Sub-s. (1) of Section 36-A overrides the provisions of the Code. So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since only the Court of Session is empowered to deal with such cases.
+There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the non-obstante clause in Section 36-D(1) (a), all offences under the Act become triable only by the Court of Session till the constitution of Special Courts and thereafter by the Special Court. Ordinarily, therefore, cases pending before the Court of Session by virtue of Section 36-D(1) would be transferred to the Special Court, but sub-s. (2) of Section 36-D carves out an exception in relation to an offence of which the Court of Session has already taken cognizance. Where the Court of Session has already taken cognizance under sub-s. (1) of Section 36-D that court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by sub-s. (2) of Section 36-D.
+23. On a conjoint reading of Sections 36, 36-A to 36-D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted u/s. 36. That is the thrust of cl. (a) of sub-s. (1) of Section 36-A. but the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 29-5-1989 and the constitution of a Special Court. This period which is a transitional period is taken care of by Section 36-D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under S. 36 that court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance.
+It is not necessary to elaborate on when cognizance is understood to have been taken because that is fairly well-settled by a catena of decisions of this Court, vide decisions based on an interpretation of S. 190 of the Code. Also in Kishun Singh v. State of Bihar ( 1993 Indlaw SC 197 : )
+24. This takes us to the next question : When can a Special Court be said to have been constituted ? The plain language of S. 36 says that the Government may, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. Therefore, the mode of constitution of Special Courts is by issuance of a notification in the Official Gazette specifying the area for which each Special Court is constituted. Sub-s. (2) of S. 36 states that the Special Court will be a Single Judge Court. Sub-s. (3) next provides that a person who has immediately before such appointment functioned as a Sessions Judge or an Additional Sessions Judge shall be eligible to be appointed as a Judge of the Special Court.
+Section 36, therefore, has two stages, namely, the first stage in regard to the constitution of Special Courts is by issuance of a notification in the Official Gazetted and then comes the appointment of the individual to function as a Judge of the Special Court. Therefore, as soon as the notification is issued under sub-s. (1) of S. 36 the process of constitution of a Special Court commences and it is only thereafter that the Government can seek the concurrence of the Chief Justice of the High Court for the appointment of a Judge of that Court. As stated earlier, only a person who has worked as a Sessions Judge or Additional Sessions Judge immediately before such appointment is qualified to be a Judge of the Special Court. This is the plain language of Section 36
+25. But the question still survives whether the constitution of the Special Court can be said to be complete and effective only after the Judge to preside over the court is appointed ? The likelihood of a time-gap between the issuance of a notification under sub-s. (1) of S. 36 and the appointment of a Judge to man the court has to be countenanced. This is evident from the facts of this case which show that the notification under S. 36(1) was issued on 4-1-1991 and the notification appointing Shri Pathan to man one of the two courts was issued on 6-4-1991. Can the Special Court be said to have been constituted on 4-1-1991, or on 6-4-1991 ? Daud, J., opines that it could be said to have been constituted with effect from 6-4-1991. The learned counsel for the petitioner commends the view of Daud, J. for acceptance.
+The Division Bench, as pointed out earlier, disagreed with Daud, J. on the erroneous view that Daud, J. had omitted to notice the deeming provision in Section 36-D(1) when there is no such deeming provision in that sub-section or for that matter in Section 36-D. Secondly, reference to constitution of the Special Court in the real sense betrays confusion. Since Daud, J. has also not discussed this question in detail we may briefly deal with it
+26. It is common knowledge that a 'court' is an agency created by the sovereign for the purpose of administering justice. It is a place where justice is judicially administered. It is a legal entity. It is a Tribunal presided over by one or more Judges on whom are conferred certain judicial powers for administering justice in accordance with law. When a Judge takes his seat in court, the court is said to have assembled for administering justice. Thus the word 'court' is a generic term and embraces a Judge but the vice versa is not true. Therefore, the words 'court' and 'Judge' are frequently used interchangeably because a Judge is an essential constituent of a court since there can be no dispensation of justice without a Judge. But that is not to say that when a Judge demits office the court ceases to exist. Bacon defines a court as:
+"an incorporeal being, which requires for its existence the presence of the Judge or a competent number of them, and a clerk or prothonotary, at or during which and at a place where it is by law authorised to be held"
+In Corpus Juris Secundum, Vol. 21, we find the following statement:
+"A court cannot exist without a Judge, and the power to create a court embraces the power to create the office of Judge thereof
+A court cannot be established until it has a judge, and unless the things required by the constitution for the existence of a court concur the court exist. The power to create a court ordinarily implies the power to create the office of judge thereof and to confer jurisdiction."
+27. Since the authority to create courts is an attribute of sovereignty, the power can be exercised under the Constitution or under a constitutionally valid statute. The power to create courts carries with it the power to organise courts which would include the power to appoint the presiding officers for the courts. But as stated earlier while the words 'court' and 'Judge' are often used interchangeably they are not, strictly speaking, synonymous. The following observation illustrates the distinction
+"A 'court' is an instrumentality of Government. It is a creation of the law, and in some respects it is an imaginary thing that exists only in legal contemplation, very similar to a corporation. A time when, a place where, and the persons by whom, judicial functions are to be exercised, are essential to complete the idea of a 'court'. It is in its organized aspect, with all these constituent elements of time, place and officers, that completes the idea of a 'court' in the general legal acceptation of the term. But a 'court' may exist in legal contemplation without any officers charged with the duty of administering justice. The officers might all die or resign, and still the legal fiction would continue to exist. The judge of a court, while presiding over the court, is by common courtesy, called 'the court', and the words 'the court' and 'the judge' or 'judges' are frequently used in the status as synonymous, State ex rel Maer v. City of Cincinati (19 NE 2d 902 : 60 Ohio App 119)."
+28. Thus when complete in its organised aspect with all the constituent elements of time, place and officers, that 'court' is constituted in the general legal acceptation of the term. This is true of the 'initial' constitution only; thereafter the court will exist even if the court is without a Judge by reason of the Judicial Officer having vacated officer on resignation or retirement or removal or the like.
+The provision as to the constitution of the court at the "initial stage" as contemplated by Section 36, must, therefore, be understood to mean that all its constituent elements of time, place and officers are complete and unless the Judge expected to man the court is appointed the constitution cannot be said to be complete because the court cannot take off till then. The initial constitution becomes complete only when the requirements of both sub-s. (1) and (2) of S. 36 have been completed. For these reasons we are in agreement with the view expressed by Daud, J. in this behalf
+29. But the main reason which motivated the Supreme Court Legal Aid Society to file this petition u/art. 32 of the Constitution was the delay in the disposal of cases under the Act involving foreigners. The reliefs claimed included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by counsel that their cases be given priority over others. When the petition came up for admission it was pointed out to counsel that such an invidious distinction between similarly situate undertrials who are citizens of this country and who are foreigners may not be permissible under the Constitution and even if priority is accorded to the cases of foreigners it may have the effect of foreigners being permitted to jump the queue and slide down cases of citizens even if their cases are old and pending since long. Counsel immediately realised that such a distinction if drawn would result in cases of Indian citizens being further delayed at the behest of foreigners, a procedure which may not be consistent with law.
+He, further, rightly sought permission to amend the cause- title and prayer clauses of the petition which was permitted. In substance the petitioner now prays that all undertrials who are in jail for the commission of any offence or offences under the Act for a period exceeding two years on account of the delay in the disposal of cases lodged against them should be forthwith released from jail declaring their further detention to be illegal and void and pending decision of this Court on the said larger issue, they should in any case be released on bail.
+30. It is indeed true and that is obvious from the plain language of S. 36(1) of the Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those prosecuted for the commission of any offence under the Act. It is equally true that similar is the objective of S. 309 of the Code. It is also true that this Court has emphasised in a series of decisions that Articles 14, 19 and 21 sustain and nourish each other and any law depriving a person of "personal liberty" must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. Hussainara Khatoon (IV) v. Home Secy. State of Bihar ( 1979 Indlaw SC 112 : 1979 Indlaw SC 112), Raghubir Singh v. State of Bihar ( 1986 Indlaw SC 617 : 1986 Indlaw SC 617) and Kadra Pahadiya v. State of Bihar ( 1981 Indlaw SC 507 : 1981 Indlaw SC 507) to quote only a few. This is also the avowed objective of S. 36(1) of the Act.
+However, this laudable objective got frustrated when the State Government delayed the constitution of sufficient number of Special Courts in Greater Bombay; the process of constituting the first two Special Courts started with the issuance of notifications under S. 36(1) on 4-1-1991 and under S. 36(2) on 6-4-1991 almost two years from 29-5-1989 when Amending Act 2 of 1989 became effective.
+31. Since the number of courts constituted to try offences under the Act were not sufficient and the appointments of Judges to man these courts were delayed, cases piled up and the provision in regard to enlargement on bail being strict the offenders have had to languish in jails for want of trials. As stated earlier S. 37 of the Act makes every offence punishable under the Act cognizable and non-bailable and provides that no person accused of an offence punishable for a term of five years or more shall be released on bail unless
+(i) the Public Prosecutor has had an opportunity to oppose bail and
+(ii) if opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and is not likely to indulge in similar activity. On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of S. 36(1) of the Act, S. 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in S. 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment.
+32. We have also kept in mind the interpretation placed on a similar provision in S. 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab ( 1994 Indlaw SC 525 : 1994 Indlaw SC 525). Despite this provision, we have directed as above mainly at the call of Art. 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A. R. Antulay v. R. S. Nayak ( 1991 Indlaw SC 313 : 1991 Indlaw SC 313), release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Art. 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Art. 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Art. 21 would receive a jolt.
+It is because of this that we have felt that after accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Art. 14 which also promises justness, fairness and reasonableness in procedural matters. What then is the remedy ? The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court considers appropriate to impose. This suggestion commends to us. We were told by the learned counsel for the State of Maharashtra that additional Special Courts have since been constituted but having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the huge pile of such cases.
+33. We, therefore, direct as under(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and find, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half of the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount
+(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs. 50, 000 with two sureties for like amount
+(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum find of Rupees of one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for the like amount
+(iv) Where an undertrial accused is charged for the commission of an offence punishable u/ss. 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order.
+34. The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions
+(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply with the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;
+(ii) the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered by cl. 
+(ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;
+(iii) the benefit of the direction in cls. (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to temper with evidence or influence the prosecution witnesses;
+(iv) in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;
+(v) the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;
+(vi) the undertrial accused may furnish bail by depositing cash equal to the bail amount;
+(vii) the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and
+(viii) after the release of the undertrial accused pursuant to this order, the cases of those undertrials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in S. 309 of the Code.
+35. We may state that the above are intended to operate as one-time directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Court's power to grant bail under S. 37 of the Act. The Special Court will be free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the accused is found to be misusing it and grounds for cancellation of bail exist. Lastly, we grant liberty to apply in case of any difficulty in the implementation of this order.
+36. We are conscious of the fact that the menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy. But at the same time we cannot be oblivious to the fact that many innocent persons may also be languishing in jails if we recall to mind the percentage of acquittals. Since harsh punishments have been provided for under the Act, the percentage of disposals on plea of guilt is bound to be small; the Stage Government should, therefore, have realised the need for setting up sufficient number of Special Courts immediately after the amendment of the Act by Amending Act 2 of 1989. Even after the Division Bench of the Bombay High Court refused to grant en bloc enlargement on bail on 1-2-1993 in Criminal Application No. 3480 of 1992 and B. D. Criminal No. 565 of 1992, no substantial improvement in the pendency is shown since new cases continue to pour in, and, therefore, a one-time exercise has become imperative to place the system on an even keel.
+We also recommend to the State Government to set up Review Committees headed by a Judicial Officer, preferably a retired High Court Judge, with one or two other members to review the cases of undertrials who have been in jail for long including those released under this order and to recommend to the State Government which of the cases deserve withdrawal. The State Government can then advise the Public Prosecutor to move the court for withdrawal of such cases. This will not only help reduce the pendency but will also increase the credibility of the prosecuting agency. After giving effect to this order the Special Court may consider giving priority to cases of those undertrials who continue in jail despite this order on account of their inability to furnish bail.
+37. We dispose of the petition insofar as it relates to the State of Maharashtra. But we are told that the situation is equally grave, with varying degrees, in certain other States like the States of Andhra Pradesh, Assam, Kerala, Karnataka, Gujarat, Orissa, Bihar, West Bengal, Uttar Pradesh and Madhya Pradesh. We direct notices to issue to these States through their Chief Secretaries to furnish information in the pro forma appended hereto to enable this Court to decide if similar action is called for. The information must be furnished within 4 weeks duly verified to be correct by an officer of the Department concerned not below the rank of a Deputy Secretary.
+Name of State
+PROFORMA
+Petition disposed of.

Object_casedocs/C1010.txt

@@ -0,0 +1,22 @@
+State of Rajasthan v Parmendra Singh
+Supreme Court of India
+
+4  May  2009
+Criminal Appeal No. 183 OF 2003
+The Judgment was delivered by : Dr. Arijit Pasayat, J.
+1.  Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court, Jodhpur, directing acquittal of the respondent who faced trial alongwith two others namely, Smt. Keshar Kanwar and Tara Devi. They faced trial for alleged commission of offences punishable under Sections 302, 498-A, 201, 120-B of the Indian Penal Code, 1860 (in short the 'IPC'). The trial Court acquitted the accused Keshar Kanwar from the charges relatable to Section 498-A, 302/34, 201/34 and 120-B IPC. The accused Tara Devi was acquitted from the charges under Section 498-A and 120-B. Respondent Parmendra Singh was acquitted from the charges under Sections 120-B and 201 read with Section 34 IPC but he was sentenced to undergo life imprisonment and three years RI for the offences punishable under Section 302 and 498-A IPC respectively.
+Prosecution version as unfolded during trial is as follows:
+2. On 1st February, 1992 Dr. Khushiram Tewani (PW-30) was working at the post of Medical Officer, Incharge at Primary Health Centre, Bagaur. In the afternoon on that day S.H.O., Bagaur brought Lalita, wife of respondent in burnt and unconscious condition for medical treatment. Lalita was admitted in the Primary Health Centre by him and initial treatment was given to her. In this regard, a slip Ex.P-58 was prepared. Lalita's body was received with more than 80% burn injuries and considering her condition he could not give her medical treatment due to lack of resources. Therefore, within half an hour she was referred to District Hospital, Bhilwara.
+3. According to Ex.P-58 at 3.05 in the afternoon Lalita was brought before him.
+4. There were several statements of the deceased which were treated as dying declarations.
+5. The trial Court found the accused guilty, convicted and sentenced as noted above basing on the dying declarations.
+6. In appeal, the High Court directed acquittal primarily on the ground that the dying declarations were not reliable. The Police Regulation relating to recording of dying declaration was violated and the deceased was not in a position to give her statement. It was noted that there was great variation between the dying declarations. There were four dying declarations in fact.
+7.  Learned counsel for the appellant-State submitted that in all the dying declarations name of the husband was mentioned and in all the four dying declarations the role played by the mother was also described except one where the father-in-law was named. Learned counsel for the respondent supported the judgment of the High Court.
+8.  It is to be noted that the High Court observed that the first dying declaration was to be disbelieved on the ground that there was no endorsement that the deceased was in a fit condition to give statement. The view expressed is clearly contrary to what has been stated by this Court in Laxman v. State of Maharashtra [2002 (6) SCC 710 2002 Indlaw SC 1921]. So far as the non observance of the procedure laid down in Police Regulation is concerned, this court had occasion to deal with the nature of the police guidelines.
+9. It was observed that mere non-observance of the procedure indicated does not render the dying declaration suspect. So far as the first dying declaration is concerned, it was recorded at about 3.00 p.m. at PHC, Bagaur. The incident was around 2.00 p.m. The first dying declaration was recorded by the doctor (PW-30). The second was recorded by the SHO (PW-28). Third was by the Sub-Inspector (PW-15) in the presence of Dr. A.K. Mathur (PW-11) and two others. Finally, the fourth dying declaration was recorded before S.S. Kothari (PW-13) ADM City, Bhilwara and Puran Chand Gupta, Assistant Collector, Bhilwara in the presence of Dr. Arvind Malhotra (PW-12).
+10. In the last dying declaration it was noted by the doctor that the patient was in a fit condition to give statement.
+11.  There is no material to show that the dying declarations were the result of tutoring or prompting. In all the dying declarations the respondent has been specifically named, and the role played by him has been categorically described.
+12.  That being so, the High Court was not justified in directing acquittal.
+13. The same is set aside. Respondent shall surrender to custody forthwith to serve the remainder of sentence.
+The appeal is allowed.
+Appeal allowed

Object_casedocs/C1011.txt

@@ -0,0 +1,20 @@
+Sohrabkhan v State of Madhya Pradesh
+Supreme Court of India
+
+14 January 1992
+Cr.A. No. 141 of 1981
+The Order of the Court was as follows:
+1.  This appeal is preferred by the convicted accused by name Sohrabkhan, aged about 26 years as on the date of the occurrence, on being aggrieved by the judgment of the High Court rendered in Criminal Appeal No. 26 of 1976 on the file of the High Court of Madhya Pradesh at Indore Bench by setting aside the judgment of the trial court acquitting him of the offences punishable under Section 302 and Section 323 IPC and under Section 27 of the Arms Act and further convicting him of the above-said offences and sentencing to life imprisonment under Section 302 IPC and to other various terms of imprisonment for other offences. The matrix of the prosecution case can be summarised as follows:
+2.   The appellant is the son of one Ishaq Khan. The appellant and his father were on inimical terms with the deceased Aziz Khan who was none other than the nephew of Ishaq Khan. There was dispute over the enjoyment of a portion of land between these two parties.
+3.  On August 20, 1973 at about 7.30 a.m. the deceased was grazing his cattle in the field whilst his brother PW 3 Latif was cutting grass in the nearby field. At that point of time, Ishaq Khan armed with a gun, accompanied by his son, the appellant herein armed with a stick came to the scene of occurrence. It is stated that Ishaq Khan handed over his gun to the appellant and instigated him to shoot at Aziz Khan.
+4.  On the instigation of his father, the appellant fired a shot causing injuries to Aziz Khan. Thereafter, the appellant assaulted Aziz Khan with a stick and when PW 3 rushed to the scene of occurrence and intervened, he too was assaulted by the appellant with a stick. After causing injuries to the deceased and PW 3 the appellant and his father made good their escape. Thereafter, the injured Aziz Khan was carried to Badagaon hospital where PW 2 rendered the first-aid and advised the parties to take the injured to Nalkhoda hospital. At the Nalkhoda hospital, the injured was examined by PW 14, a medical officer of that hospital.
+5.  PW 3 lodged the FIR, Ex. P 4 on the same day at about 11 a.m. at Nalkhoda police station which is situated about 14 kms from the scene of occurrence. As the condition of the injured Aziz Khan became serious, he was advised to be taken to the Civil Hospital, Ujjain. Under the advice of the medical officer, a dying declaration of the deceased was recorded by PW 17, Naib Tehsildar under Ex. P 20. However, the injured Aziz Khan succumbed to his injuries on August 23, 1973. The Investigating Officer completed the investigation and filed the charge-sheet against the accused i.e. the respondent and his father.
+6.  The trial court rejected the dying declaration Ex. P 20 for the reasons mentioned in its judgment and on that basis discarded the testimony of PW 3 and finally concluded that the prosecution has not made out the case against the appellant and his father and consequently acquitted them. The State thereafter preferred the appeal before the High Court which allowed the appeal as stated above.
+7.  The totality of the evidence adduced by the prosecution is twofold; one, the direct evidence of PW 3 who is an injured witness; and two, the dying declaration Ex P 20 recorded by PW 17 at the hospital. PW 3 though is the brother of the deceased Aziz Khan, his presence at the scene of occurrence cannot be disputed because he too had received an injury on his hand on being beaten by the appellant with a stick.  Further, in the present case the relationship does not play an important role because both the parties were closely related to each other. PW 3 has given a full account of what had happened at the scene of occurrence and has testified to the fact that Aziz Khan received a gunshot injury at the hands of the appellant on being instigated by his father Ishaq Khan.
+8.  In Ex. P 20 the deceased has given a full account of the incident stating that it was the appellant who shot at him at the instance of his father. The trial court had discarded the dying declaration only on the ground that the deceased had implicated the brother of the appellant as having been present at the time of occurrence. In our view, the mere mentioning of the presence of the brother of the appellant at the scene cannot be said to have whittled down the veracity of the dying declaration. The High Court in its judgment while dealing with Ex. P 20 has observed as follows:
+"Having gone through his (PW 3) testimony, we find that the reasons given by the trial court for discarding it are perverse. We see no valid reason to disbelieve the testimony of this witness.
+Turning to the dying declaration Ex. P 20 recorded on the date of incident by PW 17 Lakhanlal Shah, Naib Tehsildar, Ujjain, we find that it substantially corroborates the testimony of the eyewitness as to the part played by each accused in the crime."
+9.  This Court in Vadivelu Thevar v. State of Madras 1957 Indlaw SC 711957 Indlaw SC 711957 Indlaw SC 71 has laid down the dictum that the evidence of a single witness if wholly reliable, a conviction can be safely based on that evidence alone. After going through the evidence of PW 3, we are convinced that his evidence is wholly reliable and it does not suffer from any infirmity. Ex. P 20 is also a document which can be accepted and acted upon.
+10.   In the result, we are in full agreement with the conclusion arrived at by the High Court relying upon the testimony of PW 3 and the dying declaration Ex. P 20. We also on scrutinising the evidence carefully, notwithstanding the reasoning of the High Court, unhesitatingly come to the conclusion that the prosecution has made out the case against the appellant by leading formidable evidence.
+11.  In the result, we confirm the conviction and the sentence recorded by the High Court and dismiss the appeal as devoid of any merit.
+Appeal dismissed.

Object_casedocs/C1012.txt

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+Margret Almeida & Ors. Etc Etc v The Bombay Catholic Co-Operative Housing Society Ltd. & Ors. Etc. Et
+Supreme Court of India
+
+30 January 2012
+CIVIL APPEAL NOS. 1175-1177 OF 2012
+[Arising out of SLP (C) NO.28611-28613 OF 2011] WITH
+CIVIL APPEAL NO. 1178 OF 2012
+[Arising out of SLP(C) No.29507 of 2011]
+CIVIL APPEAL NOS. 1179-1180 OF 2012
+[Arising out of SLP(C) Nos. 30143-30144 of 2011]
+The Judgment was delivered by : Jasti Chelameswar, J.
+1. Leave granted.
+2. These appeals arise out of a common order dated 29th August, 2011 of the Division Bench of the Bombay High Court passed in three writ petitions and two suits, 144 and 145 of 2010.
+3. By the said common order, it was held, among other things, that the two suits are not maintainable in view of the provisions of Ss. 91 and 163 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter 'the Act', for short). We are not concerned with the remaining part of the Division Bench's judgment as the instant special leave petitions are preferred only against that part of the Division Bench's judgment. The brief factual background of this litigation is as follows.
+4. The first respondent is a Society which was originally incorporated in the year 1914. The full particulars of such incorporation are not available at this juncture on record and are also not necessary for the present purpose. It is sufficient to state that it is admitted on all hands that it is a housing cooperative society and the Act governs the affairs of the said Society.
+5. It is also an admitted fact on all hands that the said Society has different classes of members known as owners, lessees, allottees, tenants, etc. It is also an admitted fact that the total membership is 762 out of which 69 members fall under the classification of tenant members. However, the exact rights and obligations of these various classes of members, vis-a-vis the first respondent Society or these various classes of members inter se are also not available on record.
+6. It appears from the record that, as on today, the first respondent Society owns an extent of approximately 21,774.10 sq. mts. of land in the city of Mumbai alongwith structures popularly known as Wellingdon Catholic Colony. It appears that the said property was part of a larger parcel of land earlier owned by the first respondent Society but is not owned by the Society now. Some of the 'tenant members' (including the appellants herein) of the Society initiated proceedings for the division of the Society sometime in the year 1970 invoking S. 18 of the Act by making an application to the Registrar. The said application has a very long and chequered history, the details of which are not necessary for the present purpose except to state that by virtue of the judgment under appeal, the application is still open and pending.
+7. In the meanwhile, in a resolution came to be passed on the 6th December, 2009 by the General Body of the Society to sell the above mentioned land in favour of respondents No.22 and 23. In furtherance of the said resolution, a sale deed/conveyance came to be executed on 7th December, 2009. Aggrieved by the said resolution and the sale, two suits 144 and 145/2010 came to be filed invoking the original jurisdiction of the Bombay High Court. A copy of the plaint in the suit No.145/2010 is placed on record in these SLPs. The principal prayer in both the civil suits is
+"(a) For a declaration that the said Resolution dated 6th December, 2009 (Exhibit 'K' hereto) and the said Conveyance dated 7th December, 2009 (Exhibit 'M' hereto) are invalid, illegal and void ab initio and/or the same are voidable as against the Plaintiffs and the Tenant members of Defendant No.17 Association; (a-i) That this Hon'ble Court be pleased to pass Order declaring S. 164 of Maharashtra Co-operative Societies Act, 12 Violation of Art. 14 of the Constitution of India and the same ought to be struck down."
+It can be seen from prayer (a) extracted above that the plaintiffs seek in effect two declarations -
+(i) That a resolution dated 6th November, 2009 of the first respondent Society, and
+(ii) A Conveyance dated 7th December, 2009 executed on behalf of the first respondent Society in favour of respondents 22 and 23, are either illegal, void ab initio or in the alternative that they are voidable as against the plaintiffs (of whom at least some) are the appellants herein and claim to be the tenant members of the respondent society (we may state here that there is a dispute regarding the membership of some of the appellants herein but, for the present case, we do not go into the dispute but refer the appellants, only for the sake of convenience, as 'tenant members').
+The substance of the factual and legal basis (asserted in the plaint) on which the plaintiffs seek the two declarations (referred to earlier) in the civil suits, and argued at the Bar is that the 'tenant members' alone have the right, title and interest over the property sought to be sold by the impugned conveyance dated 7th December, 2009 and that the other members of the Society have no right, title or interest in the property in dispute. The plaintiffs expect an order of bifurcation of the respondent No.1 Society and also to get a declaration in their favour of the right, title and interest in the property in dispute. The plaintiffs also therefore claimed appropriate interim orders regarding the property during the pendency of the suits.
+8. The defendants raised a preliminary objection regarding the maintainability of the suits in view of Ss. 91 and 163 of the Act which was rejected by a learned single judge but found favour with the Division Bench of the Bombay High Court resulting in that part of the judgment which is under appeal now.
+9. By the judgment under appeal it is held that:
+"In our opinion, therefore, what is principally challenged in the Civil Suit is the resolution of the general body. And challenge to the conveyance is ancillary"
+And therefore opined:
+"That the Plaintiffs could have filed the dispute before the Co-operative Court challenging the resolution of the General Body and the consequent execution of conveyance in favour of M/s. Sumer associates and could have joined M/s. Sumer associates as a Defendant in that dispute. In our opinion thus the entire subject matter of the Civil Suit could have been the subject matter of the dispute filed u/s. 91."
+10. Shri Mukul Rohtagi and Dr. Abhishek M. Singhvi, learned senior counsel appearing for the appellants argued that irrespective of the fact whether a declaration regarding illegality of the impugned resolution dated 6th December, 2009 could be granted by the ordinary civil courts in view of S. 91 of the Act, a declaration regarding the voidness of the impugned conveyance dated 7th December, 2009 could only be given by a competent civil court contemplated u/s. 9 of the Code of Civil Procedure (hereinafter 'the Code' for short) because such conveyance is in favour of a person who is not a member of the Society.
+It is submitted that the ultimate dispute and grievance of the plaintiffs is against the alienation of the property in favour of the respondents 22 and 23 herein by the impugned conveyance which has the effect of depriving the plaintiffs of their right, title and interest in the property in dispute. Such a conveyance could only be declared illegal and void ab initio by a competent civil court contemplated u/s. 9 of the Code. The impugned resolution, which purportedly authorises the sale of the property covered by the impugned conveyance, by itself does not transfer or create any interest in the property adverse to the interest of the plaintiffs.
+Therefore, even if it is assumed that the legality of the impugned resolution is amenable to the jurisdiction of the Co-operative Court functioning under Section 91, the suits in question could not have been held to be not maintainable as the jurisdiction to adjudicate upon the incidental question regarding the impugned resolution dated 6th December, 2009 would stand subsumed by the jurisdiction of the competent civil court which alone is competent to decide the legality of the impugned conveyance dated 7th December, 2009. The learned counsel further argued that the ouster of the jurisdiction conferred on the Civil Courts u/s. 9 of the Code is to be conceded only where there is an express exclusion by the language of the Statute or if such an ouster arises by a necessary implication from the Scheme of a particular Statute. It is argued that there is nothing either in the language of S. 91 or the Scheme of the Act which would lead to a conclusion that the jurisdiction conferred u/s. 9 of the Code is excluded to adjudicate the suits in question.
+11. On the question of interim order during the pendency of the suits, the learned counsel argued that in view of the pendency of the claim of the plaintiff for the bifurcation of the respondent society (and according to the appellants, they have a very strong case), the disputed property must be preserved as it is and the balance of convenience is in favour of the appellants. The learned counsel argued that the High Court grossly erred in examining the maintainability of the suits in the interlocutory application filed by the plaintiff seeking interim order.
+12. On the other hand, learned senior counsel Shri C.A. Sundaram appearing for the respondents argued that the language of Section 91, sub-s. 1(c) of the Act clearly indicates that the jurisdiction of the Co-operative Court contemplated under S. 91 is not confined only to the adjudication of the disputes between the society and its members or servants etc. enumerated in S. 91(1)(a), (b), (d) and (e) but also extends to the disputes where one of the parties to the dispute is a person other than a member of the society.
+13. According to the learned counsel, such conclusion is irresistible from the language of S. 91(1) (c) and S. 94 (3) (a).Hence, the judgment under appeal does not call for any interference.
+14. Shri K.K. Venugopal, learned senior counsel submitted that the course adopted by the Bombay High Court in examining the maintainability of the suits in the Interlocutory Application filed by the plaintiffs is not only justified but also mandatory in view of the language of Section 9A of the Civil Procedure Code inserted by the State Legislation of Maharashtra.
+15. On the question of interim arrangement to be made during the pendency of the suit, learned counsel for the respondent submitted that the suit itself is based on the expectancy that the tenant Members would succeed in their application for the bifurcation of the society, and upon bifurcation, the tenant members would be entitled for the exclusive title and possession of the disputed property. Even if the above mentioned understanding of the plaintiff's is right since the plaintiffs are only some of the tenant members of the society, they would not be entitled for the title and possession of the entire disputed property, but only a part of it. It is argued that since other tenant members have no objection to the alienation of the property in dispute in favour of the respondent no. 22 and 23, impeding of conveyance dated 7th December, 2009 would not be justified as the impugned resolution and the conveyance have made adequate provisions for safeguarding the interest (if any) of the appellants.
+16. We shall now examine the issue of maintainability of the suits. As rightly contended by the learned counsel for the appellants the Civil Court's jurisdiction to adjudicate Civil disputes is unlimited, subject only to the limitations imposed by law either expressly or by necessary implications. The law in this regard is well settled and needs no elaboration. Therefore, it becomes necessary for us to examine whether there is anything in the language of S. 91 or S. 163 which expressly excludes the jurisdiction of the Civil Courts in the context of the suits in question. S. 163 of the Act bars the jurisdiction of Civil and Revenue Courts reads as follows:
+"163. Bar of jurisdiction of Courts.
+(1) Save as expressly provided in this Act, no Civil or Revenue Court shall have any jurisdiction in respect of
+(a) the registration of a society or its by-laws or the amendments of its by-laws or the dissolution of the committee of a society, or the management of the society on dissolution thereof: or
+(b) any dispute required to be referred to the Co- operative Court for decision.
+(c) any matter concerned with the winding up and dissolution of a society.
+(2) while a society is being wound up, no suit or other legal proceeding relating to the business of such society shall be proceeded with or instituted against the society or any member thereof, or any matter touching the affairs of the society, except by the leave of the Registrar, and subject to such terms as he may impose.
+(3) all orders, decisions or awards passed in accordance with the Act or the Rules shall, subject to the provisions for appeal or revision in this Act be final; and no such order, decision or award shall be liable to be challenged, set aside, modified, revised or declared void in any Court upon the merits or upon any other ground whatsoever."
+17. S. 163 (1)(b) and S. 91 (3) are complimentary to each other. S. 91(3) reads as follows:
+"Save as otherwise provided under "sub-s. (2) to section 93, no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1)"
+18. It can be seen that the S. 163 only excludes the jurisdiction of the Civil Court with reference to the disputes arising out of the registration:-
+(1) Registration of the society;
+(2) Disputes relating to the bye-laws of the society;
+(3) Dissolution of the Committee of the society;
+(4) Management of the society on dissolution of the society;
+(5) Any disputes which is required to be referred to the Co- operative Court u/s. 91.;
+(6) Any matter concerned with the winding up and dissolution of the society etc.
+19. A dispute arising out of a decision of the society to alienate the property of the society, in our opinion, is not expressly covered under S. 163 of the Act. It is to be examined whether it is a matter which is required to be resolved by the Co-operative Court by virtue of the provisions under S. 91 of the Act. In view of the conclusion of the High Court that "the entire subject matter of the civil suit could have been the subject matter of dispute filed u/s. 91."
+20. It is necessary to examine the scope of S. 91(1), which reads as follows "(1) Notwithstanding anything contained in any other law for the time being in force any dispute touching the Constitution, (Election of Committee or its Officers) other than the elections of the committees of the specified societies including its officers), Conduct of general meetings, management or business or a society shall be referred by any of the parties to the disputes, or by federal society to which the society is affiliated or by a creditor of the society, ( in the Co-operative Court) If both the parties there to are one or other of the following;-
+(a) A society, its committee, any past committee, any past or present officer, any past or present agent, any past and present servant or nominee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society or the liquidator of the society (or the official Assignee of a De-Registered Society),
+(b) A member, past member of a person claiming through a member, past member of a deceased member of society, or a society which is a member of the society ( or a persons who claims to be a member of the society;)
+(c) A person other than a member of the society, with whom the society has any transactions in respect of which any restrictions or regulations have been imposed, made or prescribed under sections 43,44 or 45 and any person claiming through such person:
+(d) A surety of a member, past member or deceased member, or surety of a person other than a member with whom the society has any transactions in respect of which restrictions have been prescribed under section 45, whether such surety or person is or is not a member of the society:
+(e) Any other society , or the Liquidator of such a society or de-registered society or the official Assignee of such a de-registered society."
+21. It can be seen from the above extract that the Section makes it mandatory that certain disputes, the nature of which is specified in the said sub-section, be referred to the 'Co-operative Court'1 - as defined u/s. 2(10-a ii). Such reference is required to be made by "any of the parties to the dispute". The Section also specifies the nature/subject matter of dispute which is required to be referred to the Co-operative Courts. They are "disputes touching" the
+(1) Constitution of the society
+(2) Elections of the "Committee or its officers"
+(3) Conduct General Meetings
+(4) Management of the society or
+(5) Business of the society.
+22. S. 91 also stipulates that the disputes which are mandatorily required to referred to the Co-operative Court for an adjudication must also be disputes arising between the parties to the dispute who should belong to one or the other categories specified u/cls. (a) to (e) to sub-section (1), hereinafter referred to as 'enumerated persons', for the sake of convenience. It can be seen from the scheme of Section 91, to confer exclusive jurisdiction on the Co-operative Court, the dispute must satisfy two requirements. It was held so in Marine Times Publications (P) Ltd. Vs. Shriram Transport & Finance Co. Ltd., (1991) 1 SCC 469 at para 15 1990 Indlaw SC 513:
+"Before a dispute can be referred to a Cooperative Court under the provisions of S. 91(1) of the said Act it is not only essential that the dispute should be of a kind 1 'Co-operative Court' means a court constituted under this Act to decide disputes referred to it under any of the provisions of the Act described in sub-s. (1) of S. 91 but it is also essential that the parties to the said dispute must belong to any of the categories specified in cls. (a) to (e) of sub- s. (1) of the said section."
+Both the subject matter as well as the parties to the dispute must be those specified under the section. In other words if either of the above mentioned two requirements is not satisfied then the dispute cannot be adjudicated by the Co-operative Court. If one of the parties to the dispute is not an enumerated person, the question whether the subject matter of the dispute is one which falls exclusively within the jurisdiction of the Co-operative Court need not be examined. Similarly, if it is found in a given case that the subject matter of dispute is not covered by Section 91, an enquiry into the question whether the parties to the dispute fall under any of the categories enumerated under S. 91 would become irrelevant.
+23. However, learned counsel for the respondent argued that in view of the language of S. 91(1) (c) and S. 94(3) the various classes of persons contemplated under S. 91 to bring the dispute within the jurisdiction of the Co-operative Court (if the subject matter of the dispute is otherwise exclusively amenable to the jurisdiction of the Co-operative Court), includes persons other than the members of the society though not covered by clauses (a), (b), (d) and (e) of S. 91(1).
+The leaned counsel laid emphasis on the clause "persons other than a member of the society" occurring under S. 91(1) (c) and the clause "whether he be a member of the society or not has acquired any interest in the property of a person who is a party to a dispute" occurring under S. 94(3)(a) clearly demonstrate that the jurisdiction of the Co- operative Court is not confined only to those cases where both the parties are either members or officers etc. specified in clauses (a), (b), (d) and (e) of S. 91(1).
+24. To examine the correctness of the submissions made by Shri C.A. Sundaram, it requires an analysis of S. 91(1)(c) and 94 (3). When S. 91(1)(c) stipulates that persons other than the members of the society with whom the society has any transaction as one of the classes of persons who could be parties to a dispute amenable exclusively to the jurisdiction of the Co-operative Court, such a class is not an unqualified class. The said sub-section further qualifies the said class by expressly mentioning that the transactions of such persons with a society should be a transactions "in respect of which restrictions and Regulations have been made or prescribed under Sections 43, 44, or 45 of the Act". Therefore, to understand the exact nature of the above mentioned class, an examination of the scheme of Sections 43, 44 is necessary.
+25. S. 43 (1) reads as follows:
+"43. (1) A society shall receive deposits and loans from members and other persons, only to such extent, and under such conditions, as may be prescribed, or specified by the by-laws of the society."
+The said provision recognises the legal authority of a co-operative society to receive deposits and loans either from the members or other persons. It further stipulates that the receipt of deposits and loans is permissible only to the extent and subject to such conditions as may be prescribed.
+26. S. 44 on the other hand deals with the legal authority of the co-operative society to make a loan/lend money. S. 44 in so far as it is relevant reads as follows.
+"44.(1) No society shall make a loan to any person other than a member or on the security of its own shares, or on the security of any person who is not a member. Provided that with the special sanction of the Registrar, a society may make loans to another society.
+(2) Notwithstanding anything contained in the foregoing sub-section, a society may make a loan to a depositor on the security of his deposit.
+(3) ***************************"
+It can be seen from sub-s. (1) that it prohibits a society from lending money to a person other than a member. It also prohibits lending of money by the society even to a member on the security of the shares of the same society. Further it also prohibits lending of money to a member on security to a person who is not a member. However, the proviso to sub-s. (1) authorises a society to lend money to any other society with the special sanction of the Registrar.
+27. Sub-s. (2) expressly authorises the society to lend money to a depositor on the security of his deposits. Such an authorisation is declared to be notwithstanding anything contained in sub-s. (1). In other words, the restriction contained in sub- s. (1) that a society shall not lend money to a person other than a member is relaxed with reference to a depositor, who is not a member of the society, as we have already noticed under S. 43 that the deposits or loans can be received by a society not only from its members but also from persons other than members.
+28. S. 45 makes a general declaration that the transactions of the society with persons other than its members shall be subject to such restrictions as may be prescribed. S. 45 reads as follows:-
+"45. Save as is provided in this Act, the transactions of a society with persons other than members shall be subject to such restrictions, if any, as may be prescribed."
+29. Therefore, where S. 91 (1) (c) speaks of persons other than the members of the society, it is actually referring to persons other than the members of the society who have deposited money with the society or who have either lent or borrowed money from the society in accordance with the provisions of Ss. 43 and 44 and subject to the conditions and limitations if any prescribed with reference to such lending to or borrowing from the society.
+30. Coming to the language and Scheme of S. 94(3). S. 94(1) enumerates the powers of the Cooperative Court such as the power of summoning the witness and documents etc. Sub- s. (3)(a) reads as follows:
+"94. Procedure for settlement of disputes and power of Co-operative Court xxx xxx xxx xxx
+(3)(a) If the Co-operative Court is satisfied that a person whether he be a member of the society or not has acquired any interest in the property of a person who is a party to a dispute it may order that the person who has acquired the interest in the property may join as a party to the dispute; and any decision that may be passed on the reference by the Co-operative Court shall be binding on the party so joined in the same manner as if he were an original party to the dispute."
+(Emphasis supplied)
+The substance of sub-s. (3)(a) is that if the Co-operative Court in the course of adjudication of a dispute is satisfied that any person other than a party to the dispute "has acquired any interest in the property of a party to a dispute", then the Co-operative Court is empowered to implead such a 3rd party as a party to the dispute. Such a 3rd party may or may not even be a member of the society. The sub-section further declares such an impleaded 3rd party to be bound by the decision of the Co-operative Court.
+31. It is argued by Shri C.A. Sundaram, learned senior counsel for the respondents that the scheme and language of S. 94(3)(a) makes it beyond doubt that the Co-operative Court's jurisdiction to adjudicate the dispute is not confined only to the disputes between the various classes of persons enumerated under S. 91 alone but extends to others also if such a 3rd party (even in a case where he happen to be a non-member) acquires some interest in the property of either the society or the members or any other person enumerated in S. 91.
+32. We find it difficult to accept the submissions of Shri Sundaram for the reason if really the Legislature intended that the Co-operative Court should have jurisdiction in all the disputes irrespective of the nature of the dispute arising between the various classes of persons enumerated in S. 91 and non-member 3rd parties who acquire any interest in the property of such enumerated persons, the Legislature could have clearly indicated the same in S. 91 itself. It must be remembered that S. 94(3)(a) does not enable a person other than an enumerated person to refer a dispute to the Co-operative Court. The said legal position is made clear in Marine Times 1990 Indlaw SC 513 (supra).
+It was a case where a member of a housing society occupying a part of the building owned by the society agreed to sell that property to a 3rd party subject to the approval of the society. The society declined approval. The 3rd party raised a dispute against the society as well as the member before the Co-operative Court. Dealing with the question whether the Co-operative Court would have jurisdiction to adjudicate the dispute, this Court answered the question in the negative.
+33. Accepting the submission of Shri Sundaram would lead to a situation that while on one hand it is the settled position of law that the Act does not permit a person other than the one enumerated under S. 91 to seek adjudication of his dispute with 'enumerated persons' in a Co-operative Court, such a Court would be authorised by virtue of S. 94(3)(a) to adjudicate a dispute between an enumerated person and a non-member 3rd party, if raised by an enumerated person.
+On the other hand, from the language of the said sub-section, it appears that the only circumstance which enables the Co-operative Court to exercise its jurisdiction against such a 3rd party is that while adjudicating a dispute which is otherwise amenable to its jurisdiction, the Co- operative Court reaches the conclusion that a 3rd party acquired some interest in the property of one of the parties to the dispute. Necessarily the following two questions must be examined to understand the exact scope of the said sub-section.
+(1) Whether the property referred to in the sub-section is any property of one of the parties to the dispute or should such property bear any relationship to the dispute?
+(2) Whether the acquisition of the interest referred to should be anterior to the reference of the dispute to the Co- operative Court or on acquisition made during the pendency of the litigation?
+34. The answer to the first question to our mind is plain. The property in which the 3rd party acquired interest must bear some relationship with the dispute pending before the tribunal. To hold otherwise would be to enable the Co-operative Court to examine questions unconnected with the dispute pending before it and wholly unconnected with the affairs of the Society. An illogical result to be normally avoided unless compelled by the express language of the Act.
+35. Coming to the second question, learned counsel for the appellant argued that the intention of the Legislature is to be gathered from the language of the sub-s. (3)(a) and the employment of the present perfect tense (has acquired any interest) must only lead to a conclusion that the Legislature intended the Co-operative Court to deal with only the cases of acquisition of interest in the property during the pendency of the litigation before it. On the other hand, Shri Sundaram argued that there is no warrant for such an inference in the language of sub- s. (3)(a).
+36. We are of the opinion that having regard to the language of Section 94, sub-s. (3)(a), more specifically "has acquired any interest", the acquisition of the interest contemplated is only an acquisition made during the pendency of the dispute before the Co- operative Court. For the reason that such an acquisition of interest is qualified by the words, "in the property of a person who is a party to the dispute", we hold so for another reason also.
+37. To hold otherwise, would lead to a situation where a dispute between an enumerated person and a 3rd party would become amenable to the jurisdiction of the Co-operative Court at the instance of the persons enumerated under S. 91 but not at the instance of a 3rd party in view of the judgment of this Court in (1991) 1 SCC 4691990 Indlaw SC 513. An absurd situation, ex facie violative of Article 14, in as much as such a construction would lead to a situation that with reference to a dispute, the affected parties are compelled to approach different fora for the adjudication of the same dispute depending upon the fact which party is seeking a relief. Such a construction, being inconsistent with a constitutional mandate, is impermissible.
+38. For coming to the conclusion that the suits in question are not maintainable and the dispute could be examined exclusively by the Co-operative Court, the High Court proceeded on the basis that it is possible to challenge the resolution and the conveyance independently. Starting from such a premise, the High Court opined that challenge alone to the resolution without challenging the conveyance is possible but not vice-versa. The reason given by the High Court for the same is as follows:-
+"If Court passes a decree or order setting aside the resolution of the general body, the validity of the conveyance will not be intact, but if a decree or order is made merely setting aside the conveyance, the resolution of the General body will remain intact. By the conveyance land owned by the Society is transferred. The society is a body corporate. The person or persons who have signed the conveyance on behalf of the Society derive the authority to do so from resolution of the General Body. If the resolution is set aside or is declared invalid the Act of the person of executing the conveyance would become unauthorised. Such an order in relation to the validity of the General Body resolution will impair the validity of the conveyance. Consequently, if the resolution remains intact but the conveyance is set aside for some reason the Society may be in a position to execute another conveyance pursuant to the resolution of the general body."
+We do not propose to examine the correctness of the legal premise that the general body resolution and the conveyance could be segregated in a dispute such as one on the hand. For the sake of argument, we presume that it is possible for the plaintiffs, appellants herein, to challenge only the general body resolution. We also presume that the conclusion arrived at by the High Court that if the general body resolution is set aside, the same will impair the validity of the conveyance even without an appropriate declaration by a competent judicial body. (We emphasise that we only presume so without examining to the said conclusion for the limited purpose) If the resolution dated 6th December, 2009 alone is challenged before the Co-operative Court, in view of our conclusion recorded earlier, the respondents 22 and 23 (the beneficiaries of the resolution) could not be made parties before the Co-operative Court.
+In such a situation, even if the Co-operative Court came to the conclusion that the resolution is illegal, it would always be open for the respondents 22 and 23 to ignore such a determination as they are not parties to the proceedings and assert their title on the basis of the conveyance dated 7th December, 2009. If any party such as the plaintiffs (the appellants herein) disputes the validity of the title conveyed thereunder, necessarily such a dispute would have to be adjudicated by a competent Court u/s. 9 of the Code of Civil Procedure wherein, necessarily, the question whether a valid title was conveyed in favour of respondents 22 and 23 by the society would arise for determination. The legality of the resolution would still have to be gone into again. Therefore, in our opinion, the premise in which the High Court commenced its enquiry itself is wrong.
+39. For all the above-mentioned reasons, we are of the opinion that the conclusion of the High Court that the suits in question are not maintainable on the ground that the dispute is amenable to the exclusive jurisdiction under S. 91 of the Act to the Co- operative Court cannot be sustained and the same is required to be set aside.
+40. That takes us to the next question raised in these appeals - whether the High Court was right in going into the maintainability of the suits in question. Shri Venugopal, learned senior counsel appearing for some of the respondents submitted that in view of the provisions contained in Section 9A of the Code, which was introduced by local amendment of the Maharashtra Legislature to the Code by Maharashtra Act No.65 of 1977, the course of action followed by the High Court is not only justified but also the Court is obliged to follow such a course of action. Section 9A reads as follows:
+"9A. Whereof the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.-
+(1) Notwithstanding anything contained in this Code or any other law for the time beiong in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
+(2) Notwithstanding anything contained ion sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction."
+The language of Section 9A is self-explanatory. We accept the submission made by Shri Venugopal in toto.
+41. Coming to the question of the interim order in view of our conclusion that the suits in question are maintainable and having regard to the fact that the suits are to be tried by the High Court in exercise of its original jurisdiction, we do not propose to pass any interim order and leave it open to the High Court to consider the applications filed by the plaintiffs for interim orders in accordance with law and pass appropriate orders. The principles governing the grant of interim orders are too well settled and we need not expound the same once again.
+However, we would like to indicate that on the question of the existence of a prima facie case in favour of the plaintiffs, the following factors are germane and require to be examined. Having regard to the content of the plaint, we are of the opinion that the nature of the legal right, the plaintiffs claim for seeking the relief such as the one sought in the suits necessarily depends upon the byelaws of the Society, the rights and obligations of the various classes of its members with respect to the property in dispute. The High Court may examine the above aspects before passing an appropriate interim order.
+42. In view of the above, we also deem it proper to direct all the parties to maintain status quo as on today for a period of two weeks to enable the Bombay High Court to examine the applications of the plaintiffs for interim orders and pass appropriate orders in accordance with law.
+43. The appeals are, accordingly, disposed of.
+Appeals disposed of

Object_casedocs/C1013.txt

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+State of Uttar Pradesh and Others v Desh Raj
+Supreme Court of India
+
+23 November 2006
+Appeal (Civil) 5674 of 2006
+The Judgment was delivered by : S. B. Sinha, J.
+Leave granted.
+1.  The State of U.P has herein questioned an interim order dated 15.1.04 passed by the learned Single Judge of the Allahabad High Court as also order dated 22.8.2005 passed by a Division Bench of the said Court affirming the same. The respondent was said to have been appointed on daily wages for specific work on Muster Roll purported to be under the provisions of paragraphs 429, 430 and 431 of the Financial Hand Book Volume-VI read with paragraph 476 of the Part-I of the Public Works Department of Manual of orders in local arrangements.
+2.  A writ petition was filed by the respondent herein, inter alia, praying for his regularization. A learned Single Judge of the Lucknow Bench of the Allahabad High Court on the day of preliminary hearing while issuing rule passed the following order:
+"In the meantime, the opposite parties no.3 to 5 shall examine the petitioner's claim for regularization under the Regularization Rules 2001 and pass appropriate orders. However, his claim shall not be rejected on the ground of the post being not available. Supernumerary posts have to be created to comply with the provisions of the Regularization Rules and kept alive until regular posts fall vacant. Till a decision is taken, the petitioner shall be paid wages equivalent to the minimum of pay scale admissible to a Mate working in the department with effect from 1st January, 2004."
+3.  A special appeal filed therein against but the same was barred by limitation. The Division Bench, inter alia, on the said premise refused to interfere with the order passed by the learned Single Judge stating:
+"In these circumstances, the appeal Court should not interfere but leave the matter to be decided by the Hon'ble single Judge on a final basis. The appeal is thus dismissed on merits and also on the ground of delay which we are not minded to condone, although this is illogical, we thought it better to make our minds known."
+4.  A bare perusal of the impugned order should show that the learned Single Judge for all intent and purport had allowed the writ petition on the very first day, which in our opinion, was not justified. It is now well-settled that a relief which can be granted only at the final hearing of the matter, should not ordinarily be granted by way of an interim order. It is also doubtful as to whether the impugned directions could have been issued even at the final hearing of the matter which would amount to creation of supernumerary post in purported compliance of the regularisation rules.
+5.  Whatever may be the import and purport of such Regularization Rules, in view of the recent Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors? vs. Umadevi & Ors. [(2006) 4 SCC 1 2006 Indlaw SC 125)], it is now well-settled that the appointments, if made in violation of the constitutional scheme of equality as enshrined under Articles 14 and 16 of the Constitution of India, would be rendered illegal and, thus void ab initio. No Regularization Rules, therefore, could have been made by the State of Uttar Pradesh in derogation to the statutory or constitutional scheme.
+6.  Furthermore, the State of Uttar Pradesh must have made rules in terms of the proviso appended to Article 309 of the Constitution of India, providing for the mode and manner in which recruitments are to be made. Such rules have statutory force.
+7.  The learned counsel for the respondents, however, drew our attention to paragraphs 62 of Umadevi 2006 Indlaw SC 125 (supra), which reads as under:
+"One aspect needs to be clarified. There may be cases where irregular appointments [not illegal appointments] as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in Para 15 above, of duly qualified persons 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 the 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 one time measure, the services of said irregularly appointed, who have worked for ten years and more in duly sanctioned post but not under cover of orders of the Courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill that vacant sanctioned posts that required 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 subjudice, need not be reopened based on this judgment. But there should be no further bye-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
+8.  The observations made in the said paragraph must be read in the light of the observations made in paragraphs 15 and 16 of the judgment. The Constitution Bench referred to the decisions of this Court in State of Mysore vs. S.V. Narayanappa 1967 (1) SCR 128 1966 Indlaw SC 70, R.N. Nanjundappa vs. T. Thimmiah, 1972 (1) SCC 409 1971 Indlaw SC 281 and B.N. Nagarajan vs. State of Karnataka 1979 (4) SCC 507 1979 Indlaw SC 600, B.N. Nagarajan is a decision rendered by a three judge bench of this Court in which it has clearly been held that the regularisation does not mean permanence. A distinction has clearly been made in those decisions between 'irregularity' and 'illegality'. An appointment which was made throwing all constitutional obligations and statutory rules to winds would render the same illegal whereas irregularity pre supposes substantial compliance of the rules.
+9.  Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilizers Ltd. & Ors. vs. Somvir Singh (2006) 5 SCC 493 2006 Indlaw SC 632) in the following terms:
+10. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
+11.  The Constitution Bench thought of directing regularization of the services only of those employees whose appointments were irregular as explained in State of Mysore vs. S.V. Narayanappa 1966 Indlaw SC 70, R.N. Narayandappa vs. T. Thimmiah 1971 Indlaw SC 281 and B.N. Nagarajan vs. State of Karnataka 1979 Indlaw SC 600 wherein this Court observed:
+"In B.N. Nagarajan v. State of Karnataka 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."
+12.  Judged by standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not thus; have any legal right to continue in service." {State of Madhya Pradesh & Ors. vs. Yogesh Chandra Dubey & Ors.[ (2006) 8 SCC 67 2006 Indlaw SC 476)]
+13.  It is not the case of the respondents that they were recruited in terms of the provisions of the recruitment rules framed under the proviso appended to Article 309 of the Constitution of India. In that view of the matter ex facie their appointments were illegal. We, however, must observe that we have not been taken through the purport and import or the various provisions of the PWD rules to which we have made reference here to before. But in any event, the question of regularisation of the employees by reason of any policy decision adopted by the State is impermissible in law. The learned Division Bench could have dismissed the special appeal filed by the appellant on the ground of delay. It did not do so. It purported to uphold the order of the learned Single Judge even on merits.
+14.  In that view of the matter only we had to enter into the merits of the matter. The judgment of the High Court, for the reasons stated hereinbefore suffer from a legal error. It is set aside accordingly. We are, however, of the opinion that the respondents should be compensated, as the appeal preferred by the State of Uttar Pradesh was barred by limitation, We quantify the same at Rs.10,000/- (Rupees ten thousands only). We, however, may observe that it would be open to the State to recover the said amount from the officers who may be found responsible for causing the delay in preferring the appeal.
+15.  With the aforementioned directions, the impugned orders are set aside. The appeal is allowed. No costs.
+Appeal allowed.

Object_casedocs/C1014.txt

@@ -0,0 +1,38 @@
+State Of Rajasthan And Others v Jagdish Chopra
+Supreme Court of India
+
+30 August 2007
+Appeal (civil) 3987 of 2007
+The Judgment was delivered by : S. B. Sinha, J.
+Leave granted.
+1.   Appellant-State employs teachers on yearly basis. Vacancies for each year are separately determined. Recruitment of teachers is made in terms of Rajasthan Education Subordinate Services Rules, 1971 (the Act). It remains valid for one year that is from the first day of April to 31st March. Rule 9(3) of the said Rules read thus ;
+"Rule 9(3) Whether vacancies can be determined more than once in a year.
+Vacancies shall be determined only once a year:
+Vacancies occurring after the Departmental Promotion Committee meeting has been held shall be treated as the vacancies of the next year. Variation in the vacancies that may crop up between the date of requisitioning the Department Promotion Committee and the date of Departmental Promotion Committee meeting held shall be taken into account at the Departmental Promotion Committee meeting."
+2.   For the year 1995-96, there were 33 vacancies and advertisements were issued therefor. Respondent herein was one of the applicants for the said post. The Selection Committee prepared a select list. The respondent's name figured at serial No.10 of the said list. Out of 33 vacancies, 19 posts were to be filled up by Teachers (Physical Education) and 14 posts were meant for Teachers (Grade-III). Out of 19 posts of Teachers (Physical Education), 9 posts were for General Category candidates; 5 posts were reserved for OBC candidates; 2 posts for Scheduled Castes candidate and one post for Scheduled Tribes candidate. One post was to be filled on the vacancies arising out of appointment on compassionate grounds. The date of joining was fixed on 12.04.1996. The candidate placed at serial No.8 in the merit list did not join. The vacant post was said to have been carried forward to 1996-97. Respondent had also applied for the post of Teacher (Physical Education) in the said year but he was been placed at serial No.23 in the merit list and, thus, was not found fit to be appointed in 1996-97 also. He filed a writ petition before the Rajasthan High Court. On the premise that the validity of the merit list had expired, a learned Single Judge of the said High Court opined that he had no legal right to be appointed stating :
+"Since, respondent prepares a new panel every year and it will remain effective prior to the end of that session, i.e., till March. Hence, after the expiry of duration of panel, the candidates included in that panel, will not have remained any legal right to be appointed. In the present case also, the duration of the panel has been expired and appointments have already been made in accordance with the same..."
+3.   An intra-court appeal was preferred thereagainst. A Division Bench of the High Court, however, reversed the said decision without adverting to the question as to whether the select list has remained valid or not. It was held :
+"Taking into consideration all the facts and circumstances of the case, the defence taken that till 31st of March, 1996 there was no post vacant in the Department, is difficult to accept. The Petitioner did all whatever he could have done at the relevant time to protect his right of consideration for appointment. The ground on which the writ petition was dismissed is not tenable.
+As a result of the aforesaid discussion this appeal succeeds and the same is allowed. The order dated 1.9.1997 of the learned Single Judge in S.B. Civil Writ Petition No.4599/1996, impugned in this appeal, is quashed and set aside. The writ petition is allowed and declared post of Teacher (Physical Education) fallen vacant due to non- joining of the appointed candidate stood at serial No.8 of the merit list. The Respondents are directed to give appointment to the Petitioner on the post of Teacher (Physical Education), within a period of one month from the date of receipt of the copy of this judgment. The appointment shall relate back to the date on which the appointment candidate stood at serial No.9 of the merit list, ought to have joined the post.
+The Petitioner appellant shall not be entitled for the Actual monetary benefits for the intervening period i.e. the date on which he would have joined the service and the date of his actual joining, however, this period shall be counted for other service and retrial benefits."
+4.   The State is, thus, in appeal before us. Mr. Aruneshwar Gupta, Additional Advocate General, appearing on behalf of the appellant submitted that the respondent did not have any legal right to be appointed, particularly, when the validity of a merit list is confined only to one year.
+5.   Mr. Aishwarya Bhati, learned counsel appearing on behalf of the respondent, on the other hand, urged that as the candidates were to join their posts on 12.4.1996, the State itself did not adhere to the period during which of the vacancies were required to be filled up. According to the learned counsel, respondent has already joined his services.
+6.  Learned counsel submitted that Rule 9(3) does not fix the period of validity of the panel and in that view of the matter, the respondent, who was on the wait list, should have been appointed as one of the selected candidates could not join.
+7.   Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar & Ors. v. Amrendra Kumar Mishra [2006 (9) SCALE 549], 2006 Indlaw SC 524 this Court opined :
+"In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel."
+It was further held:
+" The decision noticed hereinbefore is authorities for the proposition that even the waitlist must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period."
+8.   The learned single Judge of the High Court was, therefore, correct in holding that the second respondent has no legal right to be appointed. It is well settled principle of law that even selected candidates do not have legal right in this behalf. [See Shankarasan Dash v. Union of India - 1991 (2) SCR 567 1991 Indlaw SC 188, Asha Kaul (Mrs.) and Another v. State of Jammu and Kashmir and Others (1993) 2 SCC 577] 1992 Indlaw SC 967 In K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170], 1997 Indlaw SC 894 this court held:
+"It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non- appointment. Equally, the Public Service Commission/recruitment agency shall prepare waiting list only to the extent of anticipated vacancies.
+In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference. [See also Munna Roy v. Union of India and Others, (2000) 9 SCC 283]"2000 Indlaw SC 3038 In All India SC & ST Employees' Association and Another v. A. Arthur Jeen and Others [(2001) 6 SCC 380], 2001 Indlaw SC 20097 it was opined:
+"Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India. Para of the said judgment reads thus :-
+"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 vs. Subhash Chander Marwaha 1973 Indlaw SC 150, Neelima Shangla vs. State of Haryana 1986 Indlaw SC 194 or Jatendra Kumar vs. State of Punjab."
+9.  The principles laid down in the aforementioned cases have been followed by this Court in Food Corporation of India and Others v. Bhanu Lodh and Others [(2005) 3 SCC 618] 2005 Indlaw SC 165 stating:
+"Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review"
+10. In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others (2006) 10 SCC 261], 2006 Indlaw SC 567 this Court observed :
+"The 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 Article 16 of the Constitution of India has only a right to be considered there for. 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"
+Furthermore, the Division Bench was not at all justified in directing grant of service benefits to the respondent from the date on which the appointed candidate at serial No.9 in the merit list ought to have joined the post. Such a direction, in our opinion, is wholly unwarranted.
+11.  We, however, cannot set aside the impugned judgment because of the fact that the State has appointed the respondent during the pendency of this Special Leave Petition. We may furthermore notice that even a stay of further proceedings in the contempt petition has been passed by this Court by an order dated 16.05.2007.
+12.  We, therefore, are of the opinion that it will not be proper for this Court now at this juncture to set aside the said appointment as the appointment granted in favour of the respondent by the State was not by reason of his merit in the select list but by reason of the orders of the High Court. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India and keeping in view the fact that the matter is pending for a long time, are of the opinion that a direction should be issued that the appointment of the respondent may be directed to be continued as if he was appointed on and from the date he joined the service.
+13.  The appeal is allowed to the afore mentioned extent. Parties are left to bear their own costs.
+Appeal allowed.

Object_casedocs/C1015.txt

@@ -0,0 +1,25 @@
+Janak Singh And Anr. v State Of Uttar Pradesh
+Supreme Court of India
+
+19 April 2004
+Appeal (crl.) 924 of 2001
+The Judgment was delivered by : Arijit Pasayat, J.
+1.   The appellants were convicted for offences punishable u/s. 302 read with S. 34 of the Indian Penal Code 1860 (in short the 'IPC') and sentenced to undergo life imprisonment by the Trial Court. They did not get any relief from the Allahabad High Court which by the impugned judgment upheld the conviction and sentence.
+The prosecution version as unfolded during trial is as follows:
+2.   After death of Durga Singh, each of his three sons became owner of about 30 bighas of land. One of them, Khetrapal (hereinafter referred to as the 'deceased') was issueless. Earlier Khetrapal used to reside with accused Janak Singh and the latter used to cultivate the land which fell to share of Khetrapal also. But about a year or 1-1/2 years prior to the incident in question, Khetrapal started living with Bhuri Singh (PW-1). The land of Khetrapal Singh, which was earlier being cultivated by Janak Singh came into the possession of Bhuri Singh. This was to the disliking of accused Janak Singh. Khetrapal wanted to execute a will in favour of Bhuri Singh. On the date of incident, i.e. 16.10.1979 at about 10 a.m., Khetrapal along with Bhuri Singh (PW-1) and Surjeet Singh (PW-7) were proceeding to Etmadpur Tehsil for execution of the Will and when they reached near the pit, the accused Janak Singh armed with a country made pistol and accused Sarvesh with a gun arrived there and enquired from Khetrapal whether he was going to execute a will in favour of Bhuri Singh and when Khetrapal replied in affirmative, Janak Singh told that they would not allow him to do so.
+3.  Thereafter both accused Janak Singh and Sarvesh fired upon Khetrapal who fell down on the ground on receiving gunshot injuries. When Bhuri Singh and Surjeet Singh (PW-7) tried to save Khetrapal, they were also fired upon by the accused persons and they also sustained fire arm injuries. When deceased Khetrapal fell down on the ground accused Sarvesh fired at Khetrapal from his gun, resulting in Khetrapal's instantaneous death. Bhuri Singh (PW-1) then lodged the first information report, which was ascribed by Ram Singh at police station Etmadpur on the same day at 1.30 p.m., the distance of police station being 4 miles from the place of occurrence. On the basis of the written report, chik First Information Report was prepared by the Head Moharrir, Bihari Ji Yadav and the case was registered in the General Diary. The Station Officer Mahabir Singh took up investigation and interrogated Bhuri Singh and Surjeet Singh at the police station itself and sent both of them to hospital for medical examination with constable Lajja Ram. The investigation was undertaken and on completion thereof charge sheet was placed and accused persons faced trial. To substantiate its accusations the prosecution examined 8 witnesses. Though PWs 1 and 7 were stated to be eyewitnesses who had sustained injuries during the occurrence, PW-7 resiled from the statement given during investigation. So, the prosecution case rested on the testimony of PW-1 the injured eyewitness. The Trial Court found that his evidence was credible and cogent and conviction was made as noted above.
+4.   The main stand of the accused persons before the High Court was that evidence of PW-1 did not inspire confidence as it was at a great variance with the medical evidence. Therefore, he being an interested person who would be beneficiary if the accused persons are convicted, without corroboration his evidence should not be acted upon. The specific plea regarding the variation of PW-1's evidence vis-a-vis medical evidence was with reference to distance. According to the doctor, the gun shot which caused injury was fired from a distance of about 3-4 ft. According to PW- 1, the distance was about 20-25 ft. The Trial Court noticed that PW-1 was a person who even did not know how to sign and gave thumb impression. His perception of distance being that of a layman, no undue importance should be attached to the estimated distance. Similar plea raised before the High Court also did not find acceptance.
+5.   In support of the appeal, Mr. U.R. Lalit, learned senior counsel, submitted that PW-1's evidence is not credible and cogent. The High Court should not have tried to lightly brush aside the inconsistency clearly noticeable between his evidence and that of the doctor who stated that the injuries found in the body of the deceased could be caused if gun shot was done from a short distance. Further, there was no effort made to seize the gun allegedly used by A-2. That would have shown whether the injuries sustained could have been caused by the gun allegedly used by the accused persons. There was no injury on the backside and the only injury noticed on PW-1 was near the eyebrow. It was submitted that S. 34 IPC has no application.
+6.   In response, learned counsel for the State supported the judgments and submitted that concurrent findings recorded by the Trial Court and the High Court on analysing the evidence should not be disturbed.
+7.   We shall first deal with the plea regarding the alleged inconsistency between the eyewitness version and the medical evidence as to the distance from which the gun was fired. Where direct evidence of the eyewitness is that the accused committed the murder by firing a gun some inconsistency relating to distance based on medical opinion offered would be of no significance whatsoever. (See Karnail Singh and Others v. The State of Punjab (AIR 1971 SC 2119 1971 Indlaw SC 621). The view in Karnail Singh's case 1971 Indlaw SC 621 (supra) was also reiterated in State of Uttar Pradesh v. Sughar Singh and Others. (AIR 1978 SC 191 1977 Indlaw SC 291).
+8.  S. 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 S. 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.
+9.  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.
+10.   As it originally stood the S. 34 was in the following terms:
+"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: 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 S. 34 clear. This position was noted in Mahbub Shah v. Emperor (AIR 1945 Privy Council 118 1945 Indlaw PC 14).
+11.  The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of S. 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 u/s. 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), S. 34 is applicable even if no injury has been caused by the particular accused himself. For applying S. 34 it is not necessary to show some overt act on the part of the accused. The legality of conviction by applying S. 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:
+"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. In 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".
+12.  The above position was re-iterated in Dhanna etc. v. State of Madhya Pradesh (AIR 1996 SC 2478 1996 Indlaw SC 2240).
+13.  S. 34 IPC has clear application to the facts of the case, and seems to have been rightly and properly applied also.
+14.  Though the evidence of PW-1 was assailed on the ground that he is the beneficiary if accused persons are convicted, we find he had sustained injuries. His evidence was carefully analysed by the courts below and we do not find any noticeable discrepancy in his evidence to discard it.
+15.  The judgments of the Trial Court and the High Court are well-reasoned with conclusions and finding recorded therein supported by ample, concrete and relevant evidence and consequently the conviction suffers from no infirmity to warrant any interference. It is not a fit case where jurisdiction u/art. 136 of the Constitution of India needs to be exercised. The appeal is dismissed. The accused persons who are on bail are directed to surrender to custody forthwith to serve remainder of sentence.
+Appeal dismissed.

Object_casedocs/C1016.txt

@@ -0,0 +1,28 @@
+Subash Parbat Sonvane v State of Gujarat
+Supreme Court of India
+
+24 April 2002
+Appeal (Cr.) 546 of 2002
+The Judgment was delivered by : M. B. Shah, J.
+Leave granted.
+1.  Appellant was convicted by the Special Judge, City Civil Court, Ahmedabad by judgment and order dated 10 Semptember 1997 for the offence punishable u/s. 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500, in default of payment of which to further undergo rigorous imprisonment for 15 days. He was also convicted for the offence punishable u/ss. 13(1)(d) and 13(2) of the Act and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to further undergo rigorous imprisonment for 15 days. Against that judgment and order, appellant preferred Criminal Appeal No.881/97 before the High Court of Gujarat at Ahmedabad. The High Court dismissed the said appeal by passing the impugned judgment. That order is challenged by filing this appeal.
+2.  At the time of admission hearing, this Court passed the following order:
+"Considering the contentions raised by learned counsel for the petitioner and the evidence on record the impugned order passed by Special Judge and confirmed by the High Court with regard to the conviction of the petitioner u/s. 7 of the Prevention of Corruption Act cannot be assailed in any manner. Hence, with regard to that part of the judgment this petition is dismissed. However, with regard to the conviction of the petitioner u/s. 13(1)(d) issue notice returnable on 9 January 2002."
+3.  Thereafter, the matter was directed to be placed on a non- miscellaneous day for final hearing.
+4.  The learned senior counsel Mr. Anand appearing on behalf of appellant submitted that the judgment and order passed by the High Court confirming the conviction of the appellant u/s. 13(1)(d)(i) of the Act is on the face of it illegal and erroneous. He submitted that for convicting the appellant for the offence u/s. 13(1)(d), the prosecution must establish that by corrupt and illegal means accused has obtained for himself or for any other person any valuable thing or pecuniary advantage. He submitted that in the present case, there is no evidence on record that appellant 'obtained' any amount by corrupt or illegal means.
+5.  In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused u/s. 13(1)(d)(i). S. 13(1)(d) is as under:
+"13. Criminal misconduct by a public servant.(1) A public servant is said to commit the offence of criminal misconduct, (d) if he,
+(i)by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
+(ii)by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
+(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."
+6.  In Ss. 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the words 'accepts' or 'obtains'. As against this, there is departure in the language used in cl. (1)(d) of S. 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. Further, the ingredient of sub-cl. (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause (ii), he obtains such thing by abusing his position as public servant; and sub-cl. (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person u/s. 13(1)(d), there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.
+7.  This Court interpreted similar provisions under the Prevention of Corruption Act, 1947 in Ram Krishan and another v. The State of Delhi [(1956) SCR 183 1956 Indlaw SC 134]. In the said case, the Court dealt with similar cl. (d) of sub-s. 1 of S. 5 and held that there must be proof that the public servant adopted corrupt or illegal means and thereby obtained for himself or for any other person any valuable thing or pecuniary advantage. The Court observed
+"In one sense, this is no doubt true but it does not follow that there is no overlapping of offences. We have primarily to look at the language employed and give effect to it. One class of cases might arise when corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage. The word "obtains", on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant"
+The Court further observed that
+".It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour"
+8.  Similarly, in M.W. Mohiuddin v. State of Maharashtra [(1995) 3 SCC 567 1995 Indlaw SC 1606] the Court dealt with S. 13(1)(d)(i) and (ii) and after referring to the decision quoted above as well as dictionary meaning of word "obtains" observedwhether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. In that case, the Court held that it was proved that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same on the bag which was brought by the accused and as asked by him; these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification.  Therefore, the Court upheld the conviction u/s. 13(1)(d). Lastly, in C.K. Damodaran Nair v. Govt, of India [(1997) 9 SCC 477 1997 Indlaw SC 2597], this Court considered the word "obtain" used in S. 5(1)(d) and held as under
+"12. The position will, however, be different so far as an offence under S. 5(1)(d) read with S. 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption u/s. 4(1) of the Act as it is available only in respect of offences under S. 5(1)(a) and (b)and not under S. 5(1)(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under S. 5(1)(d) of the Act unlike an offence u/s. 161 IPC, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment".
+9.  Same is the position of statutory presumption u/s. 20 of the Act and is available for the offence punishable u/s. 7 or S. 11 or Cl. (a) or cl. (b) of sub-s. (1) of S. 13 and not for cl. (d) of sub-s. (1) of S. 13.
+10.  In the background of aforesaid settled legal position, we would now refer to the relevant part of the evidence. Before the trial court, it was submitted by the learned APP that complainant has not supported the prosecution case on main ingredients of demand and acceptance and was treated hostile. In cross-examination also, he has not supported the prosecution version on demand or acceptance of the amount. The trial court has also observed that the complainant deliberately does not support on the points of demand and acceptance. However, the Court relied upon the evidence of Panch Shailesh Devshankar Pandya (PW2). We were taken through the evidence of PW2 Pandya and from his evidence, it is difficult to find out any statement made by him that accused demanded any amount from the complainant. The relevant part of the evidence of this witness suggests that when the prosecution party went at the police chowki, accused asked the complainant as to why he had come there at that time? To that, complainant replied that he was waiting since one O'clock and that he has brought one witness to be examined. Accused informed him to come in the evening as his writer was not present. When the accused started to go towards toilet, the complainant followed him and he gave something from his pocket to the accused who took the same and put that in his pocket. From this evidence, it cannot be inferred that accused demanded any amount from the complainant or that he had obtained the same. It is apparent that the trial court and the High Court misread the evidence of PW2 and held that there was demand by the accused and the amount was paid to him by the complainant. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW2 had not stated so.
+11.  In this view of the matter, this appeal is partly allowed. Impugned judgment and order passed by the High Court confirming the order passed by the Special Judge, City Civil Court, Ahmedabad convicting the appellant for the offence punishable u/s. 13(1)(d)(i) is set aside and the appellant is acquitted for the same.
+Appeal partly allowed.

Object_casedocs/C1017.txt

@@ -0,0 +1,16 @@
+General Manager, North East Frontierrailway v Sachindra Nath Sen
+Supreme Court of India
+
+22 August 1969
+Civil Appeal No. 1839 of 1967. Appeal by special leave from the judgment and decree dated February 16, 1967 of the Assam and Nagaland High Court in Civil Rule 2 of 1965.
+The Judgment was delivered by : A. N. Grover, J.
+1. This is an appeal by special leave from a judgment of the Assam & Nagaland High Court by which a petition under Art, 226 of the Constitution filed by the respondent challenging the termination of his service was allowed.
+2. The respondent was serving the railways as an Assistant Traffic Superintendent prior to December 2, 1957. His services were terminated by serving on him one month's notice under Rule 148 contained in the Indian Railways Establishment Code. The respondent filed an appeal to the General Manager but he was informed by means of a letter dated February 3, 1959 that no appeal was competent. In June 1959 he was offered reemployment as a Statistical Inspector in the scale of Rs. 200 to Rs. 300 plus the usual allowances on terms and conditions applicable to temporary employees. It appears that the respondent accepted the offer and was appointed to the post.
+3. He was finally informed by means of a letter dated December 31, 1959 that his representation had been considered by the Railway Board relating to the termination of his services as Assistant Traffic Superintendent but the same had been rejected. On December 5, 1963 this Court decided by majority in Moti Ram Deka etc. v. General Manager. N.E.F. Railways etc, [1964] 5 S.C.R. 683 1963 Indlaw SC 215 that Rules 148 (3) and 149(3) of the Indian Railway Establishment Code were invalid. The respondent made a representation thereafter in 1964 to the General Manager to reconsider the case of the termination of his services in the light of the law declared by this Court.
+4. The; General Manager sent a reply dated June 3, 1964 saying that the question of the respondents reinstatement could not be considered as it was not covered 'by limits of law, i.e. it does not fail within a period of six years from the date of your termination of service. This was followed by another letter dated December 7, 1964 in which it was stated:
+"It has now been clarified by the Railway Board that the claim for reinstatement of the Ex: Employees whose services were terminated in terms of Rule 148/ 149 within a period of six years prior to 5-12-63 (the date of the Supreme Court's judgment), and whose representation is still pending is only to be considered. Since your services were terminated on 2-12-57 which is more than six years counting backwards from 5-12-63, it is regretted that your request for reinstatement cannot be acceded to".
+5. Thereupon the respondent filed a petition under Art. 226 of the Constitution in the. High Court. As stated before the petition was allowed principally on the ground that the railway authorities were not legally justified in making a distinction between officers whose services had been terminated within six years prior to the judgment of this. Court in Moti Ram Deka's, [1964] 5 S.C.R. 683 1963 Indlaw SC 215 case and the cases of those whose services had been terminated earlier. As pointed out in the judgment of the High Court that respondents services were terminated on December 2, 1957, he was behind time by 3 days only. It was found that such an artificial demarcation between the two kinds of cases was hit by Art. 14 of the Constitution. The other point that the respondent had accepted reemployment and must be deemed to have waived his rights to reinstatement to his original office was also repelled.
+6. In Moti Ram Deka's, [1964] 5 S.C.R. 683 1963 Indlaw SC 215 case this Court held that the termination of the services. of a permanent servant authorised by Rules 148(3) and 149(3) of the Railway Establishment Code was inconsistent with the provisions of Art. 311 (2) of the Constitution. The termination of the services of a permanent servant authorised by those Rules was no more and no less than removal from service and Art. 311(2) was at once attracted. In view of the law laid down by this Court the termination of the services of the respondent in December 1957 was wholly void and illegal.
+7. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms Rule 148 within a period of six years prior to December 5, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated.
+8. The fixing of the period of six years was on the face of it arbitrary and no valid or reasonable explanation has been given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Art. 311 (2) of the Constitution his reinstatement should have followed as a matter of course. The submission of the learned counsel for the appellant that the railway authorities would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed is devoid of any merit and cannot be accepted.
+The appeal fails and it is dismissed with costs.

Object_casedocs/C1018.txt

@@ -0,0 +1,18 @@
+Nanhu Kahar v State of Bihar
+Supreme Court of India
+
+3 March 1971
+Cr.A. No. 268 of 1968.
+The Judgment was delivered by: RAY, J.
+1.  This is an appeal by special leave from the Judgment, dated April 5, 1968, of the High Court of Patna setting aside the order of acquittal passed by the Sessions Judge, Chapra and convicting Nanhu Kahar u/s. 326 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for one year.
+2.  There were three accused Hikayat Kahar, Shanti Devi and Nanhu Kahar. The alleged occurrence took place at about noon on September 22, 1964, at a field in village Bikrampur, Police Station Marhowra, District Chapra in Bihar. Nagendra Prasad Singh was a co-sharer landlord of the village and he was in possession of 27 Kathas prior to and also subsequent to the vesting of the Zamindari in the State of Bihar. Nagendra Singh had grown maize and other crops in an area of 6 Kathas in the northern portion of the 27 Kathas. On the crucial date when Nagendra Singh along with his labourers went to the plot his brother Rajendra Singh also came there. Harvesting of maize was going on. The accused tuned up. Hikayat and his wife Shanti Devi were armed with Lathis. Nanhu was armed with a sword. Hikayat ordered assault and inflicted a Lathi blow on the abdomen of Nagendra Singh. The blow with sword was aimed by Nanhu Kahar at the head of Nagendra Singh. Nagendra Singh warded off the blow with the help of his hand. His hand was cut.
+3. Several other sword blows were inflicted and Nagendra Singh fell down and became unconscious. His brother Rajendra Singh went to his rescue. He was given some Lathi blows by Hikayat and his wife, and blows with sword by Nanhu Kahar. Nagendra Singh and Rajendra Singh were taken to the dispensary. Finding the condition of Nagendra Singh serious a dying declaration was recorded. Nagendra Singh was sent to Patna Medical College Hospital.
+4.  The accused were after investigation charged with offence under Sections 307, 37/109, 326, 323 and 34 of the Indian Penal Code.
+5.  The defence was that the land was in possession of the accused from long before the date of occurrence and the crops were sown by the accused. Nagendra Singh and his brother Rajendra Singh came to the field along with nine other persons because of enmity. On protest being raised by Hikayat and Nanhu, assault was ordered by Nagendra Singh. There was infliction of blow on the head of Hikayat by Rajendra Singh. Another blow was inflicted upon Hikayat by one Rameshwar Singh. Hikayat fled away. Hikayat was on old person. His wife Shanti was about 60 years old. The house of Hikayat was set on fire and three of his houses were burnt.
+The Sessions Judge acquitted the accused.
+6.  The High Court found on the evidence that a number of sword injuries on Nagendra Singh and some on Rajendra Singh were inflicted by Nanhu Kahar son of Hikayat.
+7.  The High Court found that the house of the accused stood adjacent to the north of the maize field of Nagendra Singh. Nagendra Singh asserted his possession of the maize field with respect to 27 Kathas in the year 1963. Accused No. 1 relied on written statement filed in Title Suit No. 133 of 1960 in which the accused claimed to be in possession of the self same land. The High Court found that dispute was going on with regard to the plot of land before the date of occurrence between Nagendra Singh and the accused.
+8. The High Court found that it was not possible on the materials on record to come to a definite conclusion that the land was actually in possession of Nagendra Singh or that he had grown the maize crop. Therefore, the High Court held that the accused had a right of private defence when they found that their maize crop was being cut away.
+9.  In that view of the matter the only question is whether the right of private defence was exceeded. The injuries sustained by the accused were minor injuries. There was nothing to show that infliction of serious injuries on Nagendra Singh and Rajendra Singh was necessary in defence of property of defence of person. There was evidence of Nagendra Singh himself that some of the sword blows were inflicted on him even after he fell down on getting the blows. That was not challenged in cross-examination.
+10.  The High Court held that the right of private defence was exceeded and convicted the appellant. We do not see any reason to interfere with this conviction. There is no merit in this appeal. The appeal fails and is dismissed.
+Appeal Dismissed.

Object_casedocs/C1019.txt

@@ -0,0 +1,13 @@
+Veerappa Rachappa Saboji v B. P. Dalal and Another
+Supreme Court of India
+
+29 January 1975
+C.A. No. 2066 of 1972 (Arising as an appeal by special leave from the Judgment and Order, Dt. 31 January 1962 of the Bombay High Court in Special Civil Application No. 188 of 1972).
+The Judgment was delivered by: BHAGWATI, J.
+1.  The appellant is a law graduate having obtained LL.B. degree from the University of Bombay in October 1949. He started practice as pleader at Jamkhandi in Bijapur District and after practising for over nine years he applied for the post of Civil Judge (Junior Division) and Judicial Magistrate in the Bombay Judicial Service, Class II. He was interviewed by the Bombay Public Service Commission and on being selected on the basis of merit, he was appointed as Civil Judge (Junior Division) and Judicial Magistrate by an order of the Government of Maharashtra dated October 31, 1960. The appointment was initially on probation for a period of two years and it was provided that after the period of probation was over, his service would be liable to be terminated on one month's notice so long as his appointment was temporary. Pursuant to the order of appointment, the appellant worked as Civil Judge (Junior Division) and Judicial Magistrate and after watching his performance during the period of probation the Government of Maharashtra by a Resolution dated April 19, 1963, directed that he should be treated as having satisfactorily completed his probationary period from December 6, 1962 afternoon and thereafter he should continue on an officiating basis as Civil Judge (Junior Division) and Judicial magistrate. The appellant accordingly continued to officiate as Civil Judge (Junior Division) and Judicial Magistrate. It appears that a substantive vacancy in a permanent post of Civil Judge (Junior Division) and Judicial Magistrate arose sometime in 1968 in which the appellant could have been confirmed but the Government of Maharashtra, instead of confirming him in that post, passed an order dated December 15, 1971, terminating his service with effect from February 1, 1972. The first respondent, who is Secretary to the Government of Maharashtra, Law and Judiciary Department, by a letter of the same date intimated to the appellant that his appointment being still temporary, his service as liable to be terminated on one month's notice and the Government had accordingly decided to terminate his service with effect from February 1, 1972 and enclosed a copy of the order of termination. The appellant thereupon filed a petition in the High Court of Bombay u/art. 226 of the Constitution challenging the validity of the order of termination.
+2.  There were three grounds on which the order of termination was assailed as invalid in the petition. The first ground rested on Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956. That rule provided that unless otherwise expressly directed, every person appointed as Civil Judge (Junior Division) and Judicial Magistrate shall be on probation for a period of two years and on the expiration of such period, he may be confirmed, if (a) there is a vacancy, and (b) his work is found satisfactory. The argument of the appellant was that on a proper construction of this rule every Civil Judge (Junior Division) and Judicial magistrate, appointed on probation for a period of two years, was entitled to be confirmed if on the expiration of such period of probation, his work was found satisfactory and there was a vacancy in which he could be confirmed. Here in the present case, said the appellant, the Government Resolution dated April 19, 1963 showed that on the expiration of the period of probation, his work was found satisfactory and sometime in 1968 a vacancy did arise in which he could be confirmed and, therefore, under this rule, he was entitled to be confirmed in such vacancy and he had a right to the post of Civil Judge (Junior Division) and Judicial Magistrate. The Government could not take away this right to the post by terminating the service of the appellant in the manner it did. The termination of the service of the appellant was in the circumstances tantamount to dismissal and since the procedural requirement of Art. 311(2) was admittedly not complied with by the Government before passing the order of termination, it was void and inoperative.
+3. The second ground of challenge was that in the circumstances in which the order of termination was passed by the Government, it was not an order of termination simpliciter but it was by way of punishment and it could not be passed without complying with the procedural requirement of Art. 311(2). Lastly, it was urged - and that was the third ground of challenge - that the order of termination was in any event violative of Arts. 14 and 16 of the Constitution, since Civil Judge (Junior Division) and Judicial Magistrate, junior to the appellant, were retained in service, while the service of the appellant was terminated. These were the three main grounds taken in the petition for challenging the validity of the order of termination.
+4.  When the petition came up for admission before a Division Bench of the High Court, the Division Bench summarily rejected it without even issuing a notice to the respondents. The Division Bench however, gave liberty to the appellant to file a suit for vindicating his rights. The appellant being aggrieved by the summary rejection of his petition, applied to the High Court for leave to appeal to this Court, but the application was refused. Hence the appellant preferred the present appeal by special leave obtained from this Court.
+5.  We do not think the High Court was right in rejecting the petition of the appellant in limine. The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection. They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents it could not be said whether the controversy between the parties would involve any disputed questions of fact. There was, therefore, no point in refusing to entertain the petition on merits and referring the appellant to a suit. We must, in the circumstances, set aside the order of summary rejection passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents.
+6.  We accordingly allow the appeal, set aside the order passed by the High Court summarily rejecting the petition and remand the petition to the High Court with a direction that the petition shall be admitted and a rule shall be issued upon it and it shall thereafter be disposed of according to law. There will be no order as to costs of the appeal.
+Appeal allowed.

Object_casedocs/C102.txt

@@ -0,0 +1,38 @@
+Punjab National Bank, Limited v Their Workmen
+Supreme Court of India
+
+6 December 1960
+C.A. No. 450 of 1959,
+The Judgment was delivered by: GAJENDRAGADKAR, J.
+1.  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 :
+"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."
+2. 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.
+3.  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.
+4. 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.
+5. 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.
+6. 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.
+7. 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.
+8. 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.
+9. 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.
+10. 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 :
+"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."
+11. 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
+"the bank rules shall apply to your regarding the various benefits and conditions of service."
+The last sentence in the letter is also significant. It says :
+" 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"
+12. 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.
+13. 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.
+14. 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.
+15. 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.
+16. 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.
+17. 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.
+18. 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.
+19. 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.
+20. 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.
+21. 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.
+22. 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.
+23. 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.
+24. 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.
+25. 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.
+26. 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.
+Appeal Dismissed.

Object_casedocs/C1020.txt

@@ -0,0 +1,160 @@
+Board Of Control For Cricket, India And Another v Netaji Cricket Club And Others
+Status:  
+							 Negative Judicial Treatment
+Supreme Court of India
+
+10 January 2005
+C.A. Nos. 237-239 of 2005 (Arising Out of S.L.P. (C) Nos. 21820-21822 of 2004) With C.A. No. 249 of 2005 (Arising Out of S.L.P. (C) No. 23351 of 2004), C.A. Nos. 232-233 of 2005 (Arising Out of S.L.P. (C) Nos. 23837-23838 of 2004) And C.A. Nos. 234-236 of 2005 (Arising Out of S.L.P. (C) Nos. 22361-22363 of 2004)
+The Judgment was delivered by: S. B. Sinha, J.
+Leave granted in all SLPs.
+1.  These appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
+The basic fact of the matter is not in dispute.
+2. Netaji Cricket Club (Netaji) is a member of Tamil Nadu Cricket Association. Tamil Nadu Cricket Association is admittedly a member of the Board of Control for Cricket in India (Board). Netaji filed a suit for declaration and injunction in the Madras High Court which was marked as Civil Suit No. 765 of 2004 inter alia for the following reliefs:
+"1. A declaration to declare that the eligible candidates who are entitled to contest for the post of President in the BCCI proposed a member of the North Zone should be permitted to contest in the election process and also be entitled to be elected as the President and act as such for the term in the election to be conducted in the Annual General Meeting on 29th and 30th of September, 2004 at Hotel Taj Bengal, Kolkata.
+2. For a permanent injunction restraining the defendants, their agents, servants and men from in any manner seeking to disqualify any eligible person or persons proposed by any member of the North Zone, as representative from the said zone representing a member in the North zone as their candidate for the Presidential Post of BCCI by virtue of such candidate not being a resident member within the zone not being a member of the said association giving him the representation."
+3.  In the said suit, an apprehension was expressed that the Board in its ensuing election of office bearers would not permit some candidates to contest on the ground of residence.
+4.  In the said suit, two interim applications bearing No. OA No. 803 of 2004 and OA No. 804 of 2004 were filed. Whereas in OA No. 803 of 2004 a prayer was made to the effect that the Annual General Meeting (AGM) be conducted under the Chairmanship of a retired Supreme Court Judge with absolute power to scrutinize and approve the list of authorized representatives from member associations eligible to vote in the AGM; in OA No. 804 of 2004 a prayer for injunction was made for restraining the Appellants herein from interfering with the proposal of any representative of any member of the North Zone for the post of President on the basis of residential qualification.
+5.  By an interim order dated 28.9.2004, a learned Single Judge of the said High Court appointed Shri S. Mohan, a former Judge of this Court as a Commissioner to conduct elections and to take necessary decision with regard to qualification, nomination and conduct of elections. The third respondent was further prohibited from disqualifying any member of BCCI and prevent them from voting.
+6.  The Board aggrieved by and dissatisfied with the said order dated 28.9.2004 preferred a Letters Patent Appeal before the Division Bench of the Madras High Court. Before the said Division Bench, an undertaking was given by the learned Senior Counsel on behalf of the Board that the Board would not disqualify any candidate for the post of President on the ground of residence. Pursuant to or in furtherance of the said undertaking a statement was made by the learned counsel appearing on behalf of 'Netaji' that the apprehension of the plaintiff/ first respondent which formed the basis for moving the Court by filing a suit for the relief as stated above is vanished in air. With the consent of the parties, the suit itself was withdrawn and both the appeal and the suit were disposed of in the following terms:
+"(i) We are of the view that the impugned order need not be in existence and hence, the same is set aside;
+(ii) the elections scheduled on 29.9.2004 at 10.30 a.m. shall be continued by the first defendant/ appellant Body strictly in accordance with the provisions of their Constitution and the rules or bye-laws framed thereunder;
+(iii) the counsel on record for the first defendant/ appellant herein made an endorsement to the effect that "the appellant shall not disqualify any candidate for the post of President on the ground of residence". The said undertaking has been given by the learned Senior Counsel, Mr. T.R. Rajagopal across the bar and the same is recorded and we direct that the undertaking should be given effect to in letter and spirit without any deviation;
+(iv) the first defendant/ appellant herein is hereby directed to receive Hon'ble Mr. Justice M. Mohan, who was appointed as Commissioner under the order on appeal and offer due respect and all comforts during his stay at Kolkata without giving any room for the learned Judge to feel embarrassed and the learned Judge should be treated with high dignity. The first defendant/ appellant herein shall pay a further sum of Rs. 1,00,000/- (Rupees one lakh only) as final remuneration to Hon'ble Mr. Justice S. Mohan, apart from other incidental expenses; and
+(v) in default of conditions (ii) and (iii), referred to above, if any party who is a member of the first defendant/ appellant Board is aggrieved, he is at liberty to workout his relief in appropriate proceedings before the competent court."
+7.  It appears that another suit was filed in the Court of VII Assistant City Civil Court, Chennai by Bharathi Cricket Club against the Appellants herein as also the Tamil Nadu Cricket Association praying for the following reliefs:
+"a) Declaration that the resolution in so far as it relates to Item 1 passed at the Special General Meeting of the First Defendant held on 12.9.2004 at 11.30 a.m. at the Taj Coromandel, Nungambakkam High Road, Chennai, electing the Third Defendant as the Patron in Chief as null and void.
+b) Order of Permanent Injunction restraining the First Defendant from passing the resolution in relation to Item 1(b) and Item No. 13 of the Agenda of the Notice dated 27.08.2004 issued by the First Defendant for convening the Annual General Meeting on 29th & 30th September, 2004 at Hotel Taj Bengal or at any other place, consequently restraining the First Defendant from passing any resolution in any manner whatsoever having the effect of nominating the Third Defendant as Patron-in-Chief thereby empowering the Third Defendant to attend the International Cricket Council and Asian Cricket Council Meetings representing the First Defendant."
+8.  In the said suit, a prayer was made by the plaintiff thereof for grant of an ex-parte ad-interim injunction, whereupon the Court by an order dated 28.9.2004 granted an ex-parte ad-interim injunction restraining the Appellants herein from passing resolutions confirming the nomination of Shri Jagmohan Dalmia as Patron-in-chief for three years under Agenda No. 1(b).
+9. A Civil Review Application marked as CRP No. 1734/2004 thereagainst was filed before the Madras High Court which is said to have been heard in part and is still pending.
+10.  The Annual General Meeting was convened on 29.9.2004. In the said meeting although no person was prevented from contesting the election for the post of President of the Board on the ground of residence but it stands admitted that Maharashtra Cricket Association was not permitted to take part in the election through Mr. D.C. Agashe or any other person. We shall deal with the said matter separately hereinafter. It further stands admitted that Shri Jagmohan Dalmia, who chaired the meeting, had cast one vote as a result whereof equal number of votes i.e. 15 each were polled on both sides whereupon he gave his casting vote. The AGM, however, on 30.9.2004 was adjourned till 26.10.2004. The Board herein filed a Special Leave Petition on limited grounds against the said order of the Division Bench dated 29.9.2004. However, after the AGM was held, a review petition was filed by 'Netaji' marked as Review Petition No. 166 of 2004 inter alia contending that the purported undertaking given by the learned Senior Counsel appearing on behalf of the Appellant herein was not adhered to and furthermore no appeal had been filed by the Appellants herein against the order of injunction passed by the learned Single Judge in OA No. 803 of 2004.
+11.  A review petition was also filed by Mr. D.C. Agashe seeking review of the said order dated 29.9.2004 contending that he had not been allowed to participate in the said election having been disqualified therefor although no order of disqualification was served.
+12.  The said review application was admitted by the said Division Bench of the High Court on 8.10.2004 observing that the undertaking across the bar given by the learned senior counsel appearing on behalf of the Board had not been given effect to in its letter and spirit. On an application made in this behalf by 'Netaji', an interim order also came to be passed. The High Court opined:
+"3. We feel that we had been misled by the undertaking made on behalf of the first respondent herein, namely the appellant in the O.S.A. No. 225 of 2004 (first defendant in the suit O.S. No. 765 of 2004), which culminated into the passing of the judgment dated 29.9.2004 made in O.S.A. No. 225 of 2004 and C.S. No.765 of 2004, which is sought to be reviewed in the review application No. 166 of 2004.
+4. We are of the considered opinion that the undertaking offered on behalf of the first respondent/Board not to disqualify any member from any of the zone, across the bar, has not been given effect to in letter and spirit as directed in our judgment dated 29.9.2004 made in O.S.A. No. 225 of 2004 and C.S. No. 765 of 2004 and prima facie there are reasons to believe as to the alleged breach of the said undertaking and hence, we are satisfied that a prima facie case has been made out for granting injunction and, therefore, there shall be an order of interim injunction as prayed for until further orders in C.M.P. No. 16419 of 2004. Notice.
+5. Taking note of the facts and circumstances of the case, which led to the filing of the O.S.A. No. 225 of 2004 and the admitted fact that the first respondent in the review application had not preferred any appeal against the order made in Application No. 803 of 2004 whereunder Hon'ble Mr. Justice S. Mohan, Judge, Supreme Court (Retired) was appointed as a Commissioner, and that the meeting held on 29-30.9.2004 stands adjourned as on date, we are inclined to appoint Hon'ble MR. Justice S. Mohan, Judge, Supreme Court (Retired) as an interim administrator until further orders, of course, subject to His Lordship's consent for the same, which shall be obtained through the Registry. In such event, the Hon'ble Mr. Justice S. Mohan, Judge, Supreme Court (Retired) shall be paid a remuneration of Rs. 1,00,000/- per month apart from other administrative, travelling and incidental expenses, by the first respondent/ Board. Notice."
+13.  The SLP (C) Nos. 21820-22/2004 have been preferred by the Appellants herein questioning the said order dated 8.10.2004. In the Special Leave Petition filed by the Board, the Delhi & District Cricket Association has joined wherefor an application for permission to file the same has been prayed for. This Court passed the following order on 11.10.2004:
+"List this matter for final hearing on 26th October, 2004. In the meantime the impugned order to the extent of appointment of Administrator is stayed. In the meantime Election/ appointment of Respondent No. 3 Patron-in-Chief is also stayed until further orders.
+Correction and rectification if any be completed by them."
+14.  Submissions have been advanced by Dr. A.M. Singhvi, learned senior counsel, on behalf of Appellant No. 1, Mr. C.S. Vaidyanathan, learned senior counsel on behalf of Appellant No. 2 and Mr. S.S. Ray, learned senior counsel, on behalf of Shri Jagmohan Dalmia, whereas Mr. F.S. Nariman, learned senior counsel appeared on behalf of Maharashtra Cricket Association and Mr. Agashe and Mr. Harish N. Salve, on behalf of 'Netaji'. An intervention application was filed by 'Club of Maharashtra', represented by Mr. Shanti Bhushan, learned senior counsel. Intervention applications were also filed by The Karnataka State Cricket Association, Rajasthan Cricket Association and Saurashtra Cricket Association.
+15.  Contention of Dr. Singhvi appearing on behalf of the Appellant was that the suit was filed by 'Netaji' only on an apprehension that a representative or a member club would be debarred from contesting the election to the post of President on the ground of residence and, no contention had been raised as regard the right of an association to vote in the said meeting.
+16.  Dr. Singhvi would submit that there had been similar instances in the past where the Chairman of the meeting had cast two votes one in terms of Rule 25 and another in terms of Rule 26. The learned counsel would urge that as the rules of the Board constitute contract between the members, only the 'doctrine of fairness' shall apply in the conduct and affairs of the Club, and, thus, even minor deviations are permissible in law. Reliance in this behalf has been placed on T.P. Daver Vs. Lodge Victoria No. 363, S.C. Belgaum [1963 SC 1144 : 1964 (1) SCR 1 1962 Indlaw SC 578].
+17.  It was urged that the High Court wrongly exercised its jurisdiction in entertaining the review application. Reliance in this regard has been placed on Parsion Devi and Others Vs. Sumitri Devi and Others [(1997) 8 SCC 715 1997 Indlaw SC 2991] and Lily Thomas and Others Vs. Union of India and Others [(2000) 6 SCC 224 2000 Indlaw SC 325].
+18.  The learned counsel would argue that the undertaking given by the learned counsel appearing on behalf of the Appellant before the Division Bench of the Madras High Court was in consonance of the contention raised in the Memo of Appeal itself which had been duly recorded and the said undertaking having not been violated, the application for review was not maintainable. Taking us through the Memo of Appeal in OSA No. 225 of 2004, the learned counsel would contend that on a perusal thereof it would be evident that an appeal was preferred against the order dated 28.9.2004 passed by the learned Single Judge passed both in OA No. 803 of 2004 and OA No. 804 of 2004. It was contended that Netaji had no locus to file a suit or pray for an order of injunction as it was not a member of the Board. In the Annual General Meeting, Dr. Singhvi would submit, no person contesting for the post of President having been disqualified on the ground of residence, the review petition was not maintainable wherein, a shift was made to the right of voting vis-'-vis the right to contest for the post of President which was not the basis for filing of the suit. Such a change in the stand on the part of 'Netaji', Dr. Singhvi would urge, is impermissible in law. In any event, the learned counsel would contend, that the same might give rise to an independent cause of action and, thus, keeping in view the scope and purport of the suit the review application should not have been entertained. It was further pointed out that in the said suit Mr. Agashe being not a party, the contention that he was not allowed to represent the Maharashtra Cricket Association could not be taken to be a ground for entertaining a review application. A breach of an undertaking in any view of the matter, according to Dr. Singhvi, cannot give rise to a revival of suit particularly when, how and in what manner the violation of such undertaking had taken place had not been specified. The interim order, according to Dr. Singhvi, goes far beyond the scope of the suit.
+19.  As regards the legality of the said meeting dated 29.9.2004, the learned counsel had taken us through the orders passed in the litigations concerning the Maharashtra Cricket Association and submitted that in view of the order of the Bombay High Court dated 1.3.2004 and furthermore having regard the objections raised by Mr. Thorve, Mr. Agashe could not have been permitted to take part in the said meeting as a representative of Maharashtra Cricket Association.
+20.  As regards the contention that Mr. Agashe was permitted to represent the said Association on 12.9.2004 despite the protest by Mr. Thorve in terms of his letter dated 10.4.2004, the learned counsel would submit, it was so done in terms of the legal opinion obtained in that behalf and in any event the same was an EGM and not AGM. It was contended that the said EGM was convened having regard to the requisitions made by 27 out of 30 members to invite Mr. Dalmia to become the patron-in-chief of the Board and, thus, the result thereof was a foregone conclusion. Furthermore, from the minutes of the meeting held on 12.9.2004, it would appear that the same was a requisitioned meeting and not an AGM. On the other hand, in terms of order dated 21.9.2004 passed by the Bombay High Court both the observers appointed by it were entitled to attend the meeting and further a direction was issued to the effect that the Managing Committee of the Association shall not take any major policy decision, save and except with the consent of the two observers.
+21.  Drawing our attention to the notice dated 25.9.2004 issued by the Maharashtra Cricket Association as regard the proposed meeting to appoint the representatives of the Maharashtra Cricket Association in the forthcoming Annual General Meeting of the Board, scheduled on 29th & 30th September, 2004 at Kolkata; it was urged that the same was illegal.
+22.  The learned counsel would contend that representation of the Maharashtra Cricket Association in the Annual General Meeting which is an annual affair was a matter involving major policy decision which could be taken only in a duly constituted meeting. The said notice dated 25.9.2004 was illegal as it was not issued in terms of Rule 32 of the Rules of the Maharashtra Cricket Association which postulates four clear days' notice before convening an ordinary meting and in relation to urgent matters, the Rule postulates one clear day's notice which had not been done in the instant case as had also been pointed by Mr. Deshmukh in his letter dated 27.9.2004.
+23.  It was contended that Mr. Agashe and Mr. Thorve filed suits in the Pune Civil Court. Mr. Agashe furthermore filed an application for grant of ad-interim injunction directing the Maharashtra Cricket Association to allow it to be represented through him which was not granted. In the aforementioned premise, upon obtaining legal opinion and upon hearing the contending and contesting parties, a decision was taken by the Board that neither Mr. Agashe nor Mr. Thorve can represent the Maharashtra Cricket Association.
+24.  On the aforementioned premise, it was submitted that there was a fundamental difference between the meeting held on 12.9.2004 and 29.9.2004 particularly in view of the fact that the Board had before it the letter of Mr. Deshmukh, suits were filed and furthermore there was a possibility of the members of the Board facing a proceeding under the Contempt of Courts Act for violating orders of the Bombay High Court. It was argued that in any event, the decision being not an arbitrary one, the same could not have been questioned in the review application.
+25.  As regards, the representation of DDCA, it was contended that no question was raised by any person whatsoever in the meeting to represent it before the Board and in fact in the Annual General Meeting the said representative of DDCA indeed was elected as an election officer. It was pointed out that even in the review application, the said question was not raised.
+26.  As regards, invitation of Mr. Dalmia for holding the post of patron-in- chief, our attention was drawn to Rule 8 of the Articles of Association and it was submitted that by reason thereof merely his contribution to the field of cricket was recognized. The said post, according to Dr. Singhvi, is an ornamental post who has no power or official authority in the management of the Board.
+27.  Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the DDCA would submit that as regards legality or otherwise of its participation neither any objection was taken in the plaint nor in the review petition nor any document was filed and in that view of the matter the Respondents cannot be permitted to raise a contention for the first time in this Court.
+28.  Drawing our attention to the order dated 18.9.2004 passed by the Company Law Board, the learned counsel would contend that by reason of the said order, DDCA was merely directed to maintain the status quo, i.e., restrained to holding the AGM.
+29.  Mr. S.S. Ray, learned senior counsel appearing on behalf of Mr. Jagmohan Dalmia would adopt the submissions made by Dr. Singhvi and would submit that as the Articles of Association of the Board constitute a contract amongst the members, they are bound thereby unless the same are found to be illegal, malafide and contrary to the statute. Reliance in this behalf has been placed on Hyderabad Karnataka Education Society Vs. Registrar of Societies and Others [(2000) 1 SCC 566 1999 Indlaw SC 577].
+30.  The learned counsel would contend that having regard to the sequence of events borne out from records and having regard to the various litigations pending before different courts and in particular the directions issued by the Bombay High Court in Writ Petition No. 1465 of 2004 and writ petition No. 1559 of 2004 nobody chairing a meeting as important as Annual General Meeting of the Board could have allowed Mr. Agashe or Mr. Thorve to represent the Maharashtra Cricket Association.
+31.  The learned counsel would contend that having regard to Rule 20(iii) the old Managing Committee continues to function till the next meeting and in this connection our attention has been drawn to Ramaiya's Company Law, Table A, Chapters 7 to 8 and Buckley's Companies Law, Vol. I, 19th edition.
+32.  The learned counsel would, by way of example, draw our attention also to Regulation 54 of Table A of the Companies Act as regard the right of the Chairman to exercise his option for casting vote in terms of the statute.
+33.  It was argued that the AGM had to be adjourned and did not terminate. Therefore, Rule 20(iii) became operative.
+34. As regard maintainability of the review application filed by the Respondents herein, Mr. Ray would submit that the subsequent events could not have been taken into consideration for the aforementioned purpose. It was urged that the order admitting the review application and the interim order passed by the Madras High Court is contrary to the relevant provisions of the Code of Civil Procedure (Code) and on a wrong understanding of the dispute relating to Maharashtra Cricket Association.
+35.  The learned counsel has taken us through various purported achievements of Shri Jagmohan Dalmia and submitted that in the interest of the sport of cricket Shri Jagmohan Dalmia had been invited to become patron-in-chief of the Board so that he can represent India in the ICC meetings.
+36.  Mr. Shanti Bhushan, learned senior counsel appearing on behalf of Intervenor Club of Maharashtra which is said to be a member of Maharashtra Cricket Association would submit that the meeting held on 27.9.2004 authorising Mr. Agashe as a representative of the Association was not a valid one as mandatory notice therefor had not been given.
+37. A valid resolution, according to Mr. Shanti Bhushan, would mean one passed in a properly constituted meeting of the Maharashtra Cricket Association as its participation in the AGM of the Board was a matter of importance and not a day to day affair.
+38.  The learned counsel would contend that the suit filed by 'Netaji' before the Madras High Court being based only on apprehension, the same was not maintainable. In any event, it was submitted that the Netaji having conceded that its grievance had been satisfied a review application could not have been entertained.
+39.  Mr. Shanti Bhushan would argue that as the elected persons have not been impleaded as parties herein, this Court cannot go into the question of validity or otherwise of the said election.
+40.  Mr. F.S. Nariman, learned senior counsel appearing on behalf of the Maharashtra Cricket Association and Mr. Agashe would, on the other hand, submit that in the facts and circumstances of the case and having regard to the materials brought on records the appointment of interim Administrator by the Madras High Court was justified, particularly, when it was not certain as to whether the old body or the new body had been functioning.
+41.  Drawing our attention to the order of injunction passed by the District Court, Madras in the suit filed by Bharathi Cricket Club, the learned counsel would contend that they could have excluded both Item Nos. 1(b) and 13 of the Agenda which pertained to Mr. Jagmohan Dalmia or proceeded to hold the meeting but it could not have been done partially.
+42.  The learned counsel would contend that in terms of the Rules only elected representatives represent the Board but in the instant case, elected representatives allegedly in terms of Rule 20(iii) had not taken charge and the old body is still continuing.
+43. Drawing our attention to the affidavit filed by Shri Jagmohan Dalmia in S.L.P. (C) No. 22361-22363 of 2004, the learned counsel would contend that he claimed to be continuing as Chairman both de facto and de jure.
+44.  According to learned counsel, 'good faith' is at the core of the function of a body like the Board. The election was to be held at the end of the meeting and having regard to the fact that the meeting had been adjourned, an odd situation has come into being, viz., that the elected Board cannot function and Mr. Dalmiya continues to be the President of the Board so long he is not elected as patron-in-chief. According to the learned counsel, malafide on the part of the President of the Board is apparent inasmuch as he wanted confirmation of his own invitation as patron-in-chief before the process of election was completed.
+45.  Mr. Nariman pointed out that in the Special Leave Petition, no statement as to what had happened on 29th September, 2004 regarding election of the office bearers of the Board had been made but the same had been disclosed only in an additional affidavit filed in the S.L.P. of MCA.
+46. Drawing our attention to the fact that Mr. Agashe after having been debarred from attending the Annual General Meeting made a representation on 29th September, 2004 itself to the President of the Board asking for reasons as regard his disqualification to participate in the meeting on behalf of Maharashtra Cricket Association but he refused to accept the representation and in that situation it had to be ultimately served on the Secretary of the Board but no reply thereto has yet been received either by Mr. Agashe or by Maharashtra Cricket Association.
+47.  The learned counsel would contend that although a resolution was passed in the meeting of the Maharashtra Cricket Association in favour of Mr. Agashe but he was not allowed to participate and if the AGM of the Board was to be adjourned this item could also have been adjourned.
+48. Drawing our attention to the additional affidavit filed on 20th October, 2004 wherein a special pleading has been made that at the Annual General Meeting an opportunity of hearing had been given allegedly to both Mr. Agashe and Mr. Thorve it was contended that the same was wholly unnatural and, thus, gives rise to another controversy.
+49.  The learned counsel would contend that Mr. Thorve in his letter dated 10th April, 2004 took a positive stand that Mr. Agashe should not be permitted to represent the Maharashtra Cricket Association but he was permitted to do so by Mr. Dalmia as would appear from his letter dated dated 3rd May,2004 purported to be upon obtaining legal opinion stated:
+"Your letter dated 10 April 2004 addressed to our Board was forwarded for legal opinion.
+According to the legal opinion received, the orders of the High Court as well as the Apex Court were restricted to the "affairs of MCA" only and not BCCI. Under the order of the Apex Court, the MCA shall not undertake any "policy" decision until disposal of the Appeal by the District Court.
+The legal opinion further states that the restriction on taking any "policy" decision by the Maharashtra Cricket Association has nothing to do with representing the Association in the meetings of the Board. Even if any policy decision is taken by the Board through its Working Committee, it shall be the policy of BCCI and not MCA."
+50.  Mr. Nariman would contend that the legal opinion received by the Board, which, having regard to the tenor of the said letter dated 3rd May, 2004, evidently was a written one, has designedly been withheld from this Court. It is, thus, evident that there exists two contrary opinions whereupon the Board had relied upon in two different situations. It was contended that there was no reason as to why Mr. Jagmohan Dalmia himself did not affirm any affidavit in this regard clarifying his position.
+51.  Mr. Nariman would submit that the fact that in a similar situation Rajasthan Cricket Association was permitted to be represented in AGM proves malafide on the part of the Board.
+52.  The learned counsel had also drawn our attention to the letter of Mr. B.G. Deshmukh, one of the observers appointed by the Bombay High Court and submitted that neither he could raise any objection as regard requisitioning of the meeting nor could he have forwarded his letter to Mr. Ajay B. Shirke and Mr. S.G. Thorve on the ground that they had asked for the copy of his letter for being placed before the MCA. Such an act on the part of Mr.Deshmukh, Mr. Nariman would contend, was improper particularly when the said addressees had no concern with the said notice and, more so, when the same was received by them even before the service thereof on the Maharashtra Cricket Association. Our attention was also drawn to the counteraffidavit filed by the Respondent No. 1 wherein it has been alleged:
+"It is pertinent to state that the said observer resides in Pune and the meeting was also to be held in Pune itself and inspite of notice being served on him, he does not attend the meeting. It is also submitted that no objection as to the appointment of Mr. D.C. Agashe to represent Maharashtra Cricket Association has been raised by the said observer. It is also peculiar that Mr.S.G. Thorve and Mr. Ajay B. Shirke who had no concern with the said notice was also given a copy even before the same could be received by Maharashtra Cricket Association. The deponent also wishes to point out that Mr. R.G. Deshmukh, the learned observer is the Chairman of one of the companies owned by Mr. Ajay B. Shirke."
+53.  It was submitted that if the representation of Maharashtra Cricket Association through Mr. Agashe in the earlier meetings of the Board had not been a policy decision of Maharashtra Cricket Association, then why all of a sudden it became so for the AGM. Only.
+54.  Drawing our attention to the affidavit of Mr. Agashe filed in S.L.P. No. 21820-21822 of 2004, the learned counsel would submit that the Chairman of the Board in the meeting firstly created an artificial right for casting one vote as chairman and then exercised his right of casting vote again, i.e., voting twice which was in contravention of the Rules.
+55.  In terms of Rule 3, there are 30 full members and in terms of Rule 5 only full members have right to vote. The Chairman of the Board is not a member as he does not represent an Association. It was pointed out that it is not necessary that the President of the Board would be the Chairman of the meeting and in that view of the matter Rules 25, 26 and 27 must be construed in such a manner so as to hold that the Chairman of a meeting cannot vote twice but only once. In any event, the learned counsel would contend that in a case of this nature the Chairman ought not to have exercised his discretionary power to cast vote twice.
+56.  Mr. Nariman would draw our attention to the Judges Summons in O.A. No. 803 of 2004 wherein the following prayers were made:
+"1) This Hon'ble Court should not be pleased to treat the application as ugent?
+2) Why this Hon'ble Court should not be pleased to pass an order of AD-INTERIM INJUNCTION to restrain the Chairman oblique President of BCCI from conducting the Annual General Meeting on the 29th and 30th of September, 2004 at Kolkata and direct that the said meeting be conducted under the Chairmanship of any person or persons of the stature of a retired Supreme Court Judge or High Court Judge or any other person or persons as to be named by this Hon'ble Court with absolute powers to scrutinize and approve the list of authorized representatives from member associations eligible to vote in the said Annual General Meeting of the 1st Respondent."
+57.  Our attention has further been drawn to the order dated 28.9.2004 passed by the learned Single Judge of the Madras High Court in OA No. 803 of 2004 and OA No. 804 of 2004, relevant paragraph whereof is as under:
+" The third respondent is further prohibited from disqualifying any member of BCCI and prevent them from voting."
+58.  The learned counsel would point out that the Division Bench in its order had referred to the order dated 28.9.2004 passed by the learned Single Judge. Even otherwise in the Memo of Appeal, no ground was taken questioning the said order of injunction as contained in the order passed by the learned Single Judge.
+59.  Mr. Nariman would further submit that the undertaking given by a senior counsel must be construed in the light of the understanding of the learned Judges before whom the same had been given across the bar and in this connection our attention has been drawn to the impugned order, as noticed supra.
+60.  In this regard, our attention has also been drawn to the 4th question raised in the S.L.P. filed by the Board which is in the following terms:
+"iv) Whether the Hon'ble High Court was right in concluding that the Learned Senior Counsel appearing for the Petitioners herein gave an undertaking to the effect that no one would be disqualified from voting despite the fact that the actual undertaking given by the Learned Counsel to the effect that no one would be disqualified on the ground of zonal representation to contest the election?"
+61.  Our attention has also been drawn to the Ground (b) of the Special Leave Petition which is to the following extent:
+" It is submitted that the Learned High Court had erred in coming to the conclusion that the undertaking given by the Learned Senior Counsel had been violated, when in fact no such undertaking was given by the Learned Senior Counsel. It is submitted that the undertaking given by the Learned Senior Counsel was duly recorded in the Order dated 29.09.2004 passed by the self same Learned Division Bench. It is submitted that the Learned Senior Counsel who earlier appeared on 29.09.2004 also appeared on 08.10.2004 before the Learned Bench and expressly recorded the submissions that were made by him on 29.09.2004." and contended that there was no reason as to why such a question had not been raised before the Division Bench itself."
+62. According to Mr. Nariman, the learned Senior Counsel appearing on behalf of the Board before the Madras High Court has not filed any affidavit as regard tenor of his undertaking and in this view of the matter the statement of the Judge in the impugned order should be accepted. Mr. Harish Salve, learned senior counsel appearing on behalf of 'Netaji' would submit that the Board is a federal head of cricket associations. Having regard to the evolution of sports of cricket in this country and in particular the fact that the Board controls the sport in India, a higher standard of rectitude in the affairs of the Board is expected. Mr. Salve would submit that in an Annual General Meeting of the Board, the aspirations of an individual member could not have been given priority having regard to the fact that the Board does not have private member. It was argued that even the Rajasthan Cricket Association was not registered and time had been taken to get it registered, but despite the same it was allowed to vote but Maharashtra Cricket Association was not permitted although the Board knew that litigations have been going on not only in relation to the Maharashtra Cricket Association but also in relation to the Rajasthan Cricket Association and Delhi & District Cricket Association and, thus, in a situation of this nature, the Chairman ought to have acted judiciously.
+63.  Relying on a decision of this Court in K. Murugan Vs. Fencing Association of India, Jabalpur and Others [(1991) 2 SCC 412 1991 Indlaw SC 543], Mr. Salve would argue that even therein a retired Judge of this Court was nominated so long a valid election was not made only with a view to see that the body like the Olympic Association or the Board must act in the interest of the sports of the country.
+64.  As regard exercise of right of 'casting vote' by Mr. Dalmia, the learned counsel would contend that the same could be exercised when there was a genuine tie and not an artificial or a created one. Election of the office bearers of the Board, according to Mr. Salve, should not only be a fair one but must be appear to be such. It was argued that the adjournment of the AGM was illegal and what happened on 29th September, 2004 was far below the standard of conduct/ expected from a body like the Board and furthermore the manner in which the meeting was conducted clearly creates an air of suspicion.
+65.  As regard functioning of the Board, it was urged that the same being based on trust, the "power and abuse" would bring into focus administrative law situation. Reliance in this behalf has been placed on Nagle Vs. Feilden and Others [1966 (2) QB 633 at 643 and 644] and St. Johnstone Football Club Limited Vs. Scottish Football Association [1965 SLT 171]
+66.  Mr. Salve would argue that the Chairman of the meeting should have acted as an umpire having regard to the role of the Board as a federal association and keeping in view the mandate of Rule 5 in terms whereof only 30 full members could exercise their right of franchise. According to Mr. Salve, keeping in view the larger public interest, the technicality of absence of the elected members in these proceedings should not stand in the way of this Court declaring the election void particularly in view of the fact that all the elected members have knowledge of the proceedings but are sitting on the fence.
+67.  Dr. Singhvi, in reply, would draw our attention to the prayer for an interim order by 'Netaji' in the review application, i.e., for restraining the newly elected body which, according to the learned counsel, would mean that the old body had ceased to continue and pursuant to or in furtherance of the said prayer only, the impugned order of injunction was passed by the Division Bench.
+68.  As regard the AGM held on 29.9.2004, it was contended that some of the items of Agenda, particularly, item Nos. 1(c) and 2 to 6 were taken up and they were considered and resolutions thereupon were passed. Further on 30.9.2004, some other items of Agenda were taken up but item Nos. 1(b) and 13 could not have been taken up in view of the order of injunction passed by the District Court of Madras. According to the learned counsel, by reason of such adjournment of the meeting, Mr. Dalmia did not derive any benefit inasmuch as his nomination as representative of the Board to ICC could have been passed in that AGM and in any event, even without such resolution he would have continued to act as a representative before the said body.
+69.  The learned counsel would contend that the meeting was adjourned with concurrence of all the participants present in the meeting and with no opposition. According to Dr. Singhvi, the only persons who have been taking objections were 'Netaji' or 'Bharathi' who are not even the members of the Board and could not have participated in the election process.
+70.  As regard the power of the Chairman to cast two votes, the learned counsel would submit that the rules envisage casting of votes by President only and not by any other member, as would appear from the Rules 5 and 25 of the Rules. Rule 26 provides that the decision taken by the majority shall prevail except in case of equality of votes when casting of vote may be necessary by the Chairman. By reason of first part of Rule 27, Dr. Singhvi would contend, no diminution of power is contemplated inasmuch as by reason thereof the right of the Chairman to exercise his right as regards 'casting vote' is preserved and the expression 'subject to rules' must be held to mean subject to Rule 26. Dr. Singhvi would contend that having regard to the precedent as two votes had been cast by the Chairman even earlier, the rule should be interpreted in the same way as was understood by all concerned. He would argue that the subject matter of voting contained in Rules 25 and 27 contemplate two different situations, as the context in which Rule 25 is attracted is radically different from Rule 27.
+71.  The rule of harmonious construction, according to Dr. Singhvi, should be applied in a situation of this nature inasmuch as, if Rule 27 is held to be subject to Rule 5, the first part thereof shall become nugatory. Pointing out the difference between Rule 26 and Rule 27, it was argued that whereas Rule 26 applies for all meetings, Rule 27 applies only to Annual General and Special General Meeting.
+72. According to Dr. Singhvi, having regard to Rule 43(1)(c) of the Rules, an election dispute should be raised in terms thereof and in a case of this nature the court should not entertain any election dispute when there exists an alternative remedy.
+73.  Dr. Singhvi would argue that when there exists substantive laws governing resolution of dispute in relation to election of office bearers of the Board, this Court should not exercise its jurisdiction u/art. 142 of the Constitution.
+74.  Mr. S.S. Ray, learned senior counsel appearing on behalf of Mr. Jagmohan Dalmia would submit that right of casting vote is not a common law right but one granted by the statute. The provision for exercise of right of casting vote is essentially for maintaining a status quo which in the cases of clubs and associations should be construed to be the second vote.
+75.  The learned counsel would contend that in the meeting dated 29.9.2004 no member had been disqualified but in absence of any authorized member to represent it, nobody could cast vote on its behalf. Keeping in view the fact that the Board has nothing to do with the internal dispute of the Maharashtra Cricket Association, this Court should not interfere in the matter, particularly, when even in the next meeting a similar problem may arise. Distinguishing the decision of this Court in K. Murugan 1991 Indlaw SC 543 (supra), the learned counsel would contend that the factual matrix obtaining therein was different and in the present case, there is no allegation of mis-management, malfunctioning or mal-administration nor any allegation has been made against Mr. Dalmia.
+76.  When the matter was listed before this Court on 11.10.2004, this Court was given an impression that having regard to the fact that the election of the office bearers of the Board had already taken place on 29.9.2004, the new Board had taken over. An impression was also created that if the Board was not allowed to function a stalemate would ensue, particularly, having regard to the proposed test series and one dayers' which were to be played between South Africa and India and one day cricket between India and Pakistan. The impugned order appointing the Administrator by the Division Bench of the Madras High Court, it was submitted, if allowed to continue, would, thus, be detrimental to the interest of the sport of cricket.
+77. It was in this situation, this Court stayed the operation of the impugned order to the extent of appointment of Administrator. However, a different picture was presented before us at the hearing stating that the new Board had not taken over at all and the old Board had been functioning purported in terms of Rule 20(iii) of the Rules. Thus, in law the old board could continue, the Appellants were not seriously prejudiced and in any event no emergent situation arose as had been projected before this Court.
+78.  The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regard regulation of the sport of cricket in terms of its Memorandum of Association and Articles of Association. It controls the sport of cricket and lays down the law therefor. It inter alia enjoys benefits by way of tax exemption and right to use stadia at nominal annual rent. It earns a huge revenue not only by selling tickets to the viewers but also selling right to exhibit films live on TV and broadcasting the same. Ordinarily, its full members are the State Associations except, Association of Indian Universities, Railway Sports Control Board and Services Sports Control Board. As a member of ICC, it represents the country in the international foras. It exercises enormous public functions. It has the authority to select players, umpires and officials to represent the country in the international fora. It exercises total control over the players, umpires and other officers. The Rules of the Board clearly demonstrate that without its recognition no competitive cricket can be hosted either within or outside the country. Its control over the sport of competitive cricket is deep pervasive and complete.
+79.  In law, there cannot be any dispute that having regard to the enormity of power exercised by it, the Board is bound to follow the doctrine of 'fairness' and 'good faith' in all its activities. Having regard to the fact that it has to fulfil the hopes and aspirations of millions, it has a duty to act reasonably. It cannot act arbitrarily, whimsically or capriciously. As the Board controls the profession of cricketers, its actions are required to be judged and viewed by higher standards.
+80. An association or a club which has framed its rules are bound thereby. The strict implementation of such rules is imperative. Necessarily, the office bearers in terms of the Memorandum and Articles of Association must not only act within the fourcorners thereof but exercise their respective powers in an honest and fair manner, keeping in view the public good as also the welfare of the sport of cricket. It is, therefore, wholly undesirable that a body incharge of controlling the sport of cricket should involve in litigations completely losing sight of the objectives of the society. It is furthermore unfortunate that a room for suspicion has been created that all its dealings are not fair. The Board has been accused of shady dealings and double standards.
+81.  We have noticed the contentions raised by the parties herein at some length not because they were absolutely necessary for the purpose of arriving at a decision but with a view to show that the rival contentions necessitate a deeper probe and scrutiny. Unfortunately, for the reasons stated hereinafter, we are at this stage not in a position to do so and leave the contentions wide open to be agitated by the parties before the appropriate forums.
+82.  On 11th October, 2004, we had, after hearing the counsel for the parties observed that if a situation arises this Court would go into the validity of the election of the office bearers of the Board held in the meeting dated 29th September, 2004, but, as indicated hereinbefore, we did so under a mistaken belief that the Board would be represented by the new office bearers and, thus, all parties would be before us. However, it now stands admitted that the office bearers either in their personal capacity or official capacity are not before us.
+83. They may have notice of the pendency of this proceeding. They may be sitting on the fence and watching the proceedings of this Court. But, unless they are made parties in these proceedings, we would not be in a position to entertain the dispute as regard validity of the meeting of 29th September, 2004 resulting in the election of the office bearers. Giving an opportunity of hearing to the elected members in a dispute of this nature is imperative and not a matter of mere procedure, formality or technicality. The election dispute, therefore, must be adjudicated upon by a proper forum.
+84.  The events leading to these appeals, as narrated hereinbefore, raise a abysmal picture and a sordid state of affairs.
+85.  In the suit filed by Netaji, two interim applications were filed being OA No. 803 and OA No. 804 of 2004. Indisputably, in OA No. 803 of 2004, the Court granted an order of injunction restraining the Board from disqualifying any members of the Board and preventing them from voting. Although in the Memo of Appeal filed by the Board before the Division Bench of the Madras High Court against the said order, the orders passed both in OA Nos. 803 and 804 of 2004 were sought to be questioned, no ground in relation thereto appears to have been raised in the Memo of Appeal in relation to the said order of injunction and no argument appears to have been advanced before the Division Bench in that behalf. The Division Bench of the High Court while passing the order on 29th September, 2004 noticed the order of the learned Single Judge dated 28th September, 2004 but its attention probably was not drawn to relevant paragraph thereof.
+86. Even the attention of the Division Bench to the said effect does not appear to have been drawn by the learned counsel appearing on behalf of the Plaintiff Respondent No. 1 herein. Had the intention of the Division Bench specifically been drawn to the said order of injunction, we are sure that the learned Judges would have dealt with it specifically. However, in law the said order of injunction did not subsist as the suit itself was withdrawn with the consent of the parties and both the appeal and the suit were disposed of by the order dated 29.9.2004. However, whether the suit itself could have been withdrawn and disposed of by the Division Bench in purported exercise of its power under Sub-s. (2) of S. 107 of the Code as well as on the basis of the determination of the learned judges is open to question. We are also not aware as to whether the original side Rules of the Madras High Court contemplate such a situation.
+87.  Indisputably, an undertaking had been given by a learned Senior Counsel appearing on behalf of the Board. In the impugned order, the Division Bench before whom such undertaking had been given was of the opinion that it was misled. This Court having regard to the understanding of such undertaking by the Division Bench does not intend to deal with the effect and purport thereof and as we are of the opinion that the Division Bench of the Madras High Court itself is competent therefor. If the order of the learned Single Judge is to be taken into consideration, it is possible to contend that the learned Judges of the High Court were correct.
+88.  We are, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. S. 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in S. 114 of the Code in terms whereof it is empowered to make such order as it thinks fit.
+89.  Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.
+Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".
+90.  It is true that in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others [(1955) 1 SCR 520 1954 Indlaw SC 131], this Court made observations as regard limitations in the application of review of its order stating :
+"Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule."
+but the said rule is not universal.
+91.  Yet again in Lily Thomas 2000 Indlaw SC 325 (supra), this Court has laid down the law in the following terms:
+"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 1970 Indlaw SC 553 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error "
+92.  It is also not correct to contend that the court while exercising its review jurisdiction in any situation whatsoever cannot take into consideration a subsequent event. In a case of this nature when the court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel appearing on behalf of the Board and its correlation with as to what transpired in the AGM of the Board held on 29th September, 2004, the subsequent event may be taken into consideration by the court for the purpose of rectifying its own mistake.
+93.  In Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni & Ors. [(2003) 7 SCC 219 2003 Indlaw SC 593], this Court noticed: "4. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama [1934] 294 U.S. 600, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad v. Keshwar Lal AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances.
+94. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. This Court's judgment in Pasupuleti Venkateswarlu v. Motor & General Traders AIR 1975 SC 1409 1975 Indlaw SC 408 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine - See V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252."
+95.  Furthermore, the impugned order is interlocutory in nature. The order is not wholly without jurisdiction so as to warrant interference of this Court at this stage. The Division Bench of the High Court had jurisdiction to admit the review application and examine the contention as to whether it can have a re-look over the matter. This Court, it is trite, ordinarily would not interfere with an interlocutory order admitting a review petition. The contentions raised before us as regard the justification or otherwise of the Division Bench exercising its power of review can be raised before it. Furthermore, the court having regard to cl. (ii) of its order dated 29.9.2004 may have to consider as to whether the election was held in accordance with theConstitution of the Board and the rules and bye-laws framed by it.
+96.  The conduct of the Board furthermore is not above board. The manner in which the Board had acted leaves much to desire.
+97.  The question as to whether the Maharashtra Cricket Association has unjustly been deprived of its right to participate in the AGM through Mr. Agashe whereas DDCA and the Rajasthan Cricket Association had been allowed to participate therein is a question which would require deeper probe and a detailed scrutiny.
+98.  The Board had not filed even legal opinion which it obtained before replying to Mr. Thorve's letter dated 10th April, 2004. The tenor of the Board's letter dated 3rd May, 2004 clearly demonstrates that a written opinion was obtained as therein the following expressions have been used:
+"The legal opinion further states"
+99.  In the said legal opinion a distinction appears to have been made between a policy decision to be taken by Maharashtra Cricket Association vis-'-vis representation of the Association in the meetings of the Board. No distinction might have been drawn therein as regard different types of meetings of the Board, viz., Extraordinary General Meeting and Annual General Meeting or any other meeting, nor do we find any. A person may either be entitled to represent an association or he is not. A person's right to represent an association ordinarily would not vary with the nature of the meeting unless otherwise provided in the statute. So far no satisfactory explanation has been furnished as to why another legal opinion was sought for and acted upon in preference to the first one.
+100.  One of the question is whether Mr. Agashe could have represented the Maharashtra Cricket Association in terms of resolution dated 27.09.2004. Different standards cannot be adopted by the Board, viz., one for the purpose of requisitioned meeting for inviting Mr. Dalmia to become the patron-in-chief of the Board and other for the purpose of attending an AGM. In other meetings, Maharashtra Cricket Association had admittedly been represented by Mr. Agashe. It is also doubtful as to whether the Board could have gone into, if at all, the validity or otherwise of the meeting of the Maharashtra Cricket Association held on 27th September, 2004. It is also a matter of contention as to whether Mr. Deshmukh had exceeded his jurisdiction not only in taking his stand as contained in his letter dated 27th September, 2004 but also sending copies thereof to Mr. Thorve and Mr. Ajay B. Shirke before it was received by the Maharashtra Cricket Association.
+101.  Mr. Deshmukh in terms of the order of the Bombay High Court prima facie was merely to attend the meeting and give his approval or withhold it as regard any policy decision which may be taken. Whether sending a representative of the Maharashtra Cricket Association is a matter of policy warranting interference by the observers appointed by the Bombay High Court is again a contentious issue. The members of the Association could not have undermined the importance of electing its representative for the ensuing Annual General Meeting of the Board.
+102.  The Maharashtra Cricket Association itself has filed a Special Leave Petition questioning the order of the Division Bench of the Madras High Court dated 29th September, 2004. In a situation of this nature, this Court may not exercise its jurisdiction u/art. 136 of the Constitution of India because the order impugned before it is not correct. The jurisdiction of this Court u/art. 136 of the Constitution is a discretionary one.
+103.  In Municipal Board, Pratabgarh and Another Vs. Mahendra Singh Chawla and Others [(1982) 3 SCC 331 1982 Indlaw SC 278], it was held:
+"6. What are the options before us. Obviously, as a logical corollary to our finding we have to interfere with the judgment of the High Court, because the view taken by it is not in conformity with the law. It is at this stage that Mr. Sanghi, learned counsel for the respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this Court u/art. 136 of the Constitution is discretionary and, therefore, this Court is not bound to tilt at every approach found not in consonance or conformity with law but the interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having. performed that duty under Art. 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Art. 136 "
+104.  In Taherakhatoon (D) by LRS. Vs. Salambin Mohammad [(1999) 2 SCC 635 1999 Indlaw SC 983], this Court held:
+"20. In view of the above decisions, even though we are now dealing with the appeal after grant of special leave, we are not bound to go into merits and even if we do so and declare the law or point out the error - still we may not interfere if the justice of the case on facts does not require interference or if we feel that the relief could be moulded in a different fashion..."
+105.  The said decision has been followed by a 3-Judge Bench of this Court in Chandra Singh and Others Vs. State of Rajasthan and Another [(2003) 6 SCC 545 2003 Indlaw SC 541].
+Yet again in Ram Chandra Singh Vs. Savitri Devi and Others [(2003) 8 SCC 319 2003 Indlaw SC 842], this Court observed::
+"In such an event also, the Court may have to find out a remedy which would be just and equitable.
+The High Court furthermore failed to notice the principle 'actus curiae neminem gravabit'."
+106.  In Rajesh D. Darbar & Others Vs. Narasingrao Krishnaji Kulkarni & Ors. [JT 2003 (7) SC 209 2003 Indlaw SC 593], this Court noticed:
+"The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principle cannot, however, stand in the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform."
+107.  Recently, in M.P. Special Police Establishment Vs. State of M.P. and Others [(2004) 8 SCC 788 2004 Indlaw SC 998], this Court held:
+"31. We have, on the premises aforementioned, no hesitation to hold that the decision of the Council of Ministers was ex facie irrational whereas the decision of the Governor was not. In a situation of this nature, the writ court while exercising its jurisdiction u/art. 226 of the Constitution as also this Court u/arts. 136 and 142 of the Constitution can pass an appropriate order which would do complete justice to the parties. The High Court unfortunately failed to consider this aspect of the matter."
+However, keeping in view of the fact that the elected office bearers are yet to take over charge, with a view to do complete justice to the parties, we would in exercise of our jurisdiction u/art. 142 of the Constitution direct that the adjourned meeting should immediately be convened. As regard the election of the office bearers of the Board, it would further be open to an aggrieved party to question the legality or validity of the said meeting dated 29th September, 2004. Netaji also may, if it is otherwise permissible in law, subject to an appropriate order that may be passed by the Madras High Court, may file an application for amendment of the plaint or take such other step or steps as it may be advised.
+108.  Keeping in view of the fact that on 8th October, 2004 when the impugned order was passed the new Board had not taken over as also having regard to the prayer made in the interim application filed by Netaji for grant of interim injunction restraining the newly elected Board from functioning in the interim, we make our interim order dated 11th October, 2004 staying the operation of the part of the order whereby Mr. Justice S. Mohan was appointed as an interim Administrator absolute leaving the parties to file such interim applications as may be necessary in the changed situation.
+However, keeping in view of the fact that interim order of injunction as regard Agenda Item Nos. 1(b) and 13 been passed by a District Court at Chennai, the suit filed by Bharathi Cricket Club, we are of the opinion that it is not necessary to pass any other order at this stage as regard invitation to Mr. Jagmohan Dalmia to become the patron-in-chief of the Board.
+109.  We are, however, of the opinion that it would not be appropriate to restore the order of the learned Single Judge dated 28.9.2004 as was submitted by Mr. Nariman as the purpose for which Mr. Justice S. Mohan was appointed has lost its efficacy.
+110.  In view of the orders passed by us, we do not think it necessary to pass separate orders in the Special Leave Petition filed by the Maharashtra Cricket Association. The Maharashtra Cricket Association shall, however, be at liberty to file an appropriate application for getting itself impleaded in the proceedings pending before the Madras High Court, subject to any objection that may be taken by the Board. We, however, furthermore are of the opinion that keeping in view the facts and circumstances of this case that part of the order of the Division Bench dated 29th September, 2004 whereby and whereunder the Board was directed to pay a further sum of Rs. 1 lakh to Mr. Justice S. Mohan as additional remuneration cannot be sustained. It is set aside accordingly.
+111.  Keeping in view the peculiar fact situation obtaining herein, we would request the High Court to consider the desirability of disposing of the matters pending before it as expeditiously as possible.
+112.  These appeals are disposed of with the aforementioned directions. No costs.
+Appeals disposed of.

Object_casedocs/C1021.txt

@@ -0,0 +1,82 @@
+Sanatan Naskar & Anr. v State Of West Bengal
+Supreme Court of India
+
+8 July 2010
+CRIMINAL APPEAL 686 OF 2008
+The Judgment was delivered by: Swatanter Kumar, J.
+1.  This case is a typical example, where conviction is entirely based upon circumstantial evidence. It is a settled principle of law that doctrine of circumstantial evidence is brought into aid where there are no witnesses to give eye version of the occurrence and it is for the prosecution to establish complete chain of circumstances and events leading to a definite conclusion that will point towards the involvement and guilt of the accused. The challenge in the present appeal is to the concurrent judgments of conviction passed by the learned Sessions Judge as well as the High Court, primarily, on the ground that the prosecution has been able to establish by leading cogent and reliable evidence and the chain of circumstances leading to the commission of the offence by the accused persons.
+2. The challenge, primarily, is that findings of the Court are erroneous in law and on the facts of the case. According to the accused-appellants, the prosecution has not been able to establish the guilt beyond reasonable doubt. Secondly, it is submitted that the confessions, alleged to have been recorded by the police officer on the basis of which recoveries were effected, are contrary to law and, therefore, could not be the basis of the conviction of the appellants. For these reasons the appellants claim acquittal from charge.
+3.  To examine the merits of these contentions reference to the case of the prosecution and the facts, as they emerged from the record, would be necessary.
+4.  On 28th April, 1999 at Police Station Jadavpur, a case was registered under Section 302/34 of the Indian Penal Code (hereinafter referred to as 'IPC') against unknown miscreants for causing death of one Smt. Phool Guha, wife of Dr. Ashim Guha, resident of 11/1 East Road within Jadavpur Police Station. This case was registered on the basis of the complaint made by Dr. Ashim Guha (Ext. P.1) which reads as under:
+"To
+The Officer-in-Charge Jadavpur, P.S.
+Dist.-south 24-Parganas
+Sir,
+This is to inform you, that on 28.4.99 at aroud 20.15 hrs. myself along with my son Debmalya and daughter-in-law Indira left for Gariahat for some personal work. My wife Smt. Phul Guha was in the house alone at 21.35 hrs. we all returned home and noticed a large gathering in front of our house. I found my wife lying dead inside the room of my daughter-in-law having her tongue prosuded and some marks of bruises could to detected on her body and blood was seen trickled out of the right angle of her mouth. It was also noticed that the assailants after (illegible) the murder of my wife, ransacked both the rooms and the household articles were scattered.
+It appeared that the assailants entered through the main door after obtaining the keys and the lock along with the key was found in the stair case.
+I, therefore, request you to kindly take necessary action and do the needful to (illegible) the miscreants.
+Yours faithfully,
+Sd/- Asim Kumar Guha"
+5.  As is evident from the above complaint that Dr. Ashim Guha, husband of the deceased, his son Debmalya and daughter-in-law Indira had left for Garihat on 28th April, 1999 at about 8.15 P.M. The deceased was all alone at home. When they returned home at about 9.30 P.M. they found a large gathering in front of the house. Upon entering the house, they found that Phool Guha was lying dead inside the room of her daughter-in-law with tongue protruded and with some marks of bruises on her body and blood trickling out of her mouth. It transpired that the assailants committed the murder of his wife and had ransacked both the rooms as the household articles were lying scattered. Mrinal Kanti Roy, the Investigating Officer, who was later examined as PW 13, commenced his investigation. He called for experts including dog squad. The photographs were taken. The dog squad was brought to the place of occurrence. After sniffing the place of occurrence, taking the round of the house and also sniffing the handkerchief lying on the face of the deceased, the dogs could not identify anyone present there.
+6.  Thereafter inquest of the deceased was taken with the help of the relatives. The body was taken to Mominpur Police Morgue by the constable where the post mortem of the deceased was conducted and the report is Ext. 8. From the place of occurrence certain articles were recovered and seizure memos were prepared whereafter both the rooms at the upper floor of the house were locked. The saliva and blood staines, where the body was found, were also seized by scraping floor and separate seizure memo was prepared and marked as Ext. 3. After some enquiry and investigation, the Investigating Officer arrested Sanatan Naskar, Appellant No. 1 on 8th July, 1999 from village Khasiara. He admitted his guilt in commission of the crime as well as identified the handkerchief recovered as his own. During investigation this appellant made a statement, which led to the recovery of wrist watches, which were allegedly looted from the house of the deceased.
+7.  He also informed about the involvement of accused Mir Ismile, Appellant No. 2, who was arrested on 11th July, 1999 from Jugi Battala and he also, during investigation, made a statement leading to the recovery of two wrist watches as well as camera. The watches were recovered vide recovery memo Ext.6. The camera was recovered on the statement of the said accused from village Jhijrait for which the seizure memo Ext. 5 was also prepared. An attempt was made to recover jewellery from the shop, which was raided, but nothing could be recovered. The Investigating Officer then recorded the statements of number of witnesses, but in particular Jahar Chatterjee @ Kakuji (PW5), Indira Guha (PW6), Ali Anam (PW8) and Biplab Talukdar (PW9) respectively and after completion of the investigation, a charge sheet under Sections 302/411/34 IPC was filed before the Court of competent jurisdiction. The case was committed to the Court of Sessions by the learned Magistrate vide order dated 28th November, 1999. After trial and recording of the statements of the accused u/s. 313 of the Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') the learned Sessions Judge, by a detailed judgment, convicted both the accused and punished them as under:
+"Both the convicts are produced from J.C. They are given hearing with regard to question of sentence u/s 235(2) Cr.P.C. The convicts are informed that the sentence u/s 302/34 I.P.C. which has been established yesterday is life imprisonment or death penalty and the sentence for committing robbery u/s 392 I.P.C. is imprisonment for 10 years and the sentence for having possession of the looted property u/s 411 I.P.C. is 3 years. The convicts plead mercy. Heard Ld. PP and Ld. defence counsels in this regard.
+As the convicts are found guilty u/s 302/34 IPC the minimum punishment is imprisonment for life and this is not a case of rarest of the rare cases and as such the death penalty is not called for. Accordingly, both the convicts are sentenced to R.I. for Life. With regard to offence of robbery u/s 392 IPC the convicts are sentenced to R. Imprisonment for five years. With regard to offence u/s 411 IPC for possessing the looted properties the convicts are sentenced to R. Imprisonment for one year. All the sentences shall run concurrently."
+8.  Aggrieved from the judgment of guilt and order of sentence dated 6.12.2000, the appellants filed an appeal before the High Court. The High Court declined to interfere with the judgment of the learned trial Court. Even on the question of sentence the High Court found that adequate and just sentence had been awarded. In other words, the High Court even declined to interfere on the question of quantum of sentence and dismissed the appeal vide order dated 7th February, 2005 giving rise to the filing of the present appeal u/art. 136 of the Constitution.
+9. Since we have noticed, at the very opening of the judgment, that it is a typical case of circumstantial evidence and the entire challenge to the concurrent judgments is based on the facts that the chain of events has not been completely proved by the prosecution beyond reasonable doubt. Thus, the appellants are entitled to the benefit of doubt on the facts of the present case. Besides challenging the recoveries alleged to have been made from and/or at the instance of the accused, it was contended that the same are hit by the provisions of S. 27 of the Indian Evidence Act (hereinafter referred to as 'the Act'). That being the sole and paramount circumstance, which had weighed with the Courts for convicting the appellants, the judgment under appeal is liable to be set aside. We are of the considered view that the chain of events and circumstances has been quite aptly stated by the trial Court in its judgment which are as follows:
+"Thus, therefore, it is now settled that the deceased died in between 8.15 P.M. to 9.00 PM. No other hypothesis in the alternative can be drawn.
+In this regard the chain of circumstances rest on the following clues:-
+1) Presence of a handkerchief with a empty packet of capstan tobacco pouch beside the dead body;
+2) Seizure of camera with cover and two ladies wrist watches from the hideout as laid by both accd. Separately; and
+3) presence of accd. Persons near the PO house at the approximate time of murder;
+4) medical evidence by the auto pay surgeon (PW-10) who suggested that the death of the deceased might be resulted from suffocation caused by this handkerchief (produced to him) if pressed against the mouth and nazal cavity with sufficient force and that the scuffling might due to force applied by more than one person;
+5) result of chemical examination of the handkerchief.
+Regarding time no. 1 the handkerchief was sent for chemical examination and the report is marked as exbt-14 with objection. It appears from the said report that traces of saliva was detected in the item-A (handkerchief) and item-B (floor scrapings) and floor swab in cotton wool. Blood was detected in item-A and B. Regarding the blood group of these items report of the serologist was called for. The report of serologist is marked exbt-14/9. It appears from the said report that the handkerchief cuttings floor scraping and blood soaked in filter paper were stained with human blood but the blood group of those human blood could not be determined as the sample was not sufficient for test for the first two items and item no. 4 viz. blood soaked filter paper was stained with B-group blood.
+It however appears from the said report that the blood of the deceased belongs to group-B. So the report of F.S.L. and the serologist do not help the prosecution. So I shall have to rely on the other evidence on record."
+10.  The provisions of S. 27 of the Act clearly states that when any fact is deposed to as discovered in consequence of the information received from a person accused of any offence, in the custody of the 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. In the present case the handkerchief, that was recovered from the place of occurrence, was subsequently owned by the accused. The fact recorded that he admitted his guilt was not admissible and could not be proved and has rightly been rejected by the learned trial Court in the impugned judgment. The wrist watches and the camera, which were recovered after the statement of the accused was recorded, while in custody, cannot be faulted with as those items have not only been recovered but duly identified by the owners during investigation as well as at the trial stage. PW13, the Investigating Officer, in his statement has referred to the recording of the statement of the accused after they were taken into custody and resultant recoveries of the articles. The contention is that the confessions extracted by the police officer are illegal and inadmissible, the alleged recoveries made in furtherance thereto and preparation of seizure memos are also unsustainable. In other words, these exhibits cannot be admitted or read in evidence.
+11.  We may notice, on the contrary, that even the learned trial Court has specifically dealt with this objection. While referring to the cross examination of PW 13, efforts were made to involve the local witnesses, which he did not succeed and later when the seizure memos were prepared PW8 and PW9 were present. Ext. 18 clearly shows their presence and nothing contrary was suggested to them in their cross examination. Their presence during search and seizure of the house of the accused on two occasions has been completely established by the prosecution. No confessional statement made to the police, as alleged, has been relied upon by the Courts. It is only the objects recovered, in furtherance to the statement of the accused while in police custody like wrist watches, camera etc., that has been relied upon to by the Court to complete the chain of events relating to the crime in question. Thus, any of these acts are not hit by the provisions of S. 27 of the Act.
+12.  Usefully, reference can also be made to the judgments of this Court enunciating the principles under S. 27 of the Act. The Court in Anter Singh v. State of Rajasthan [(2004) 10 SCC 657 2004 Indlaw SC 79] has held that the first condition necessary for bringing S. 27 into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that, at the time of the receipt of the information, the accused must be in police custody. The last but the most important condition is that, only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The Court further held as under:
+"The various requirements of the section can be summed up as follows:
+The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
+The fact must have been discovered.
+The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
+The person giving the information must be accused of any offence.
+He must be in the custody of a police officer.
+The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
+Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
+13.  Similar view was taken by this Court in Salim Akhtar v. State of U.P. [(2003) 5 SCC 499 2003 Indlaw SC 334].
+14.  Now let us examine certain material facts which would help in understanding the chain of events in its correct perspective. PW 8 and PW 9 have specifically stated that on the date of occurrence they had seen the accused near the place of occurrence. PW5 and PW 6 have also stated that the accused were known to the family of the deceased. Most important statement pointing towards the normal practice of the house and likely involvement of the accused is pointed out in the statement of PW6, Smt. Indira, the daughter-in-law of the deceased. Besides referring to their departure from the house along with others and returning back to the house at about 9.30 P.M., she also stated that she found her mother-in-law, the deceased, lying on the floor and blood coming out of her mouth from the right side. The house was ransacked. She specifically stated that she would be able to identify the wrist watches and the camera and she gave the make of wrist watches and camera i.e. HMT and Titan wrist watches and Paintax camera. All the articles were identified by her as Ex.P.4 and P.5 respectively. About the accused knowing the family as well as how they used to open the entrance door she stated as under:
+"These two accused persons in the lock up were occasionally engaged by us as hired labours for watering the flower tubs at roof top and cleaning the cars and for carrying drinking water. My mother in law also used their rickswa for visits. The accused are identified.
+The upper story is used for our residence. The accused persons during their call rang an door bell. The inmate of the house used to come to balcony to identified the coler and in case he appears to be known man, the key in usually lowered by a string when the coler opens then door and on his entering recock the same and returned the key. We observed this system as a safety measure."
+15.  The forensic experts had taken the foot prints but the report was not definite as to whether the foot prints found at the site were the foot prints of the accused, however, this fact looses significance for the reason that the Investigating Officer had clearly stated in his evidence that at the place of occurrence, which was later on sealed by him, there were lot of foot prints as number of persons had gathered there. This small discrepancy cannot be of much advantage to the appellants inasmuch immaterial contradictions or variations are bound to arise in the investigation and trial of the case for various factors attributable to none. Reliance was placed by the Court on the judgment of State of Haryana v. Ram Singh [2002 CLJ 987 2002 Indlaw SC 24] to say that in serious offences it is not fair to extend the rule relating to burden of proof to this extent that justice is the casualty. The appreciation of evidence by the Court can hardly be faulted with. At this stage, reference to the statements of accused u/s. 313 Cr.P.C. would also be significant. Accused Sanatan Naskar in answer to Question No. 3 completely denied the knowledge of murder and death of Phool Guha despite the fact that he was known to the family and he was being engaged for different works at the same place. In relation to Question No.13 he answered that that this was not his handkerchief and in contradiction to the same we may refer to Question No. 16 and answer thereof:
+"Q. No. 16 Officer-in-charge stated that dog of Police, first sniffed the hanky and then showed you and he became sure that the handkerchief was yours. What do you say? A 16. There were losts of people alongwith the Police-Dog. They wiped the swet of my armpit and gave that to the 'Dog'. It came and stated before me."
+16. In relation to recovery of the items from him he was questioned by the Court to which he offered the following answer:
+"Q. 27 That witness had stated that on that day at about 1.30 clock in the afternoon he along with the officer-in-charge Anu Alam and you went to the house of Kartick Naskar at Gangaduara. Village boarding in a police jeep and you recovered two wrist watches, one H.M.T. and one Titan Wrist-watch all tied in a packet. Inspector prepared the seizure list in front of this witness and Anuu Alam and you took a copy of the by putting your thumb impression. What do you say?
+A. 27 He did not give me any copy and he also did not go with me. I only put my thumb impression in a plain paper at the office."
+17. He further stated that he had been implicated and does not wish to offer any defence.
+18.  The answers by an accused u/s. 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of S. 313 of the Cr.PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of S. 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused u/s. 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded.
+19.  It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
+20. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of S. 313 (4) of Cr.PC explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made u/s. 313 of the Cr.PC as it cannot be regarded as a substantive piece of evidence. In the case of Vijendrajit v. State of Bombay, [AIR 1953 SC 247 1953 Indlaw SC 137], the Court held as under:
+"(3). .................As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under S.342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement under S.342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown."
+21.  In the light of the above stated principles it was expected of the accused to provide some reasonable explanation in regard to various circumstances leading to the commission of the crime. He was known to the family along with other accused and by giving just a bare denial or lack of knowledge he cannot tilt the case in his favour. Rather their answers either support the case of the prosecution or reflect the element of falsehood in the statement recorded u/s. 313 of Cr.PC. In both these circumstances the Court would be entitled to draw adverse inference against the accused.
+22. As already noticed, this is a case of circumstantial evidence. We are not able to accept the contention that the appellants have been falsely implicated in the present case. The articles have been duly identified which were recovered from the possession of the accused at their instance. It is also not correct that the Court has relied upon the confessions made to the police. Only that much of the relevant fact has been taken into consideration which has resulted in the recovery of the arts. i.e. wrist watches, camera etc. and the statement, to the extent they admitted their crime, has not been referred much less relied upon by the Courts. In the case of circumstantial evidence, law is now well settled.
+23.  There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eye witness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of accepted principles in that regard.
+24.  A Three Judge-Bench of this Court, in the case of Sharad v. State of Maharashtra [(1984) 4 SCC 116 1984 Indlaw SC 432], held as under:
+"152. 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 [AIR 1952 SC 343 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 (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 1969 Indlaw SC 573] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 1971 Indlaw SC 555] It may be useful to extract what Mahajan, J. has laid down in Hanumant case:
+"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."
+153. 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:
+(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
+It 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 Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 1973 Indlaw SC 181] where the observations were made:
+"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."
+(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,
+(3) the circumstances should be of a conclusive nature and tendency,
+(4) they should exclude every possible hypothesis except the one to be proved, and
+(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.
+154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
+25.  So, the first and the foremost question that this Court has to examine in the present case is, whether the prosecution has been able to establish the chain of event and circumstances which certainly points out towards the involvement and guilt of the accused. Even, before we enter upon adjudicating this aspect of the case, it will be appropriate to narrow down the controversy keeping in view the admissions, if any, made by the appellants. The accused, after having known the entire case of the prosecution, is required to be examined u/s. 313 of Cr.PC. All the material evidence has to be put to the accused and he has to be awarded the fair opportunity of answering the case of the prosecution, as well as to explain his version to the Court without being subjected to any cross- examination. As already noticed, the answers given by the accused can be used against him in the trial in so far as they support the case of the prosecution.
+26.  In the cases of circumstantial evidence, this Court has even held accused guilty where the medical evidence did not support the case of the prosecution. In Anant Lagu v. State of Bombay [AIR 1960 SC 500 1959 Indlaw SC 124], where the deceased died of poison, the Court held that there were various factors which militate against a successful isolation of the poison and its recognition. It further noticed that while the circumstances often speak with unerring certainty, the autopsy and the chemical analysis taken by them may be most misleading. No doubt, due weight must be given to the negative findings at such examination. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances an irresistible inference of guilt can be drawn.
+27. Similar view was taken by a Bench of this Court in the case of Dayanidhi Bisoi v. State of Orissa, [AIR 2003 SC 3915 2003 Indlaw SC 535], where in a case of circumstantial evidence the Court even confirmed the death sentence as being rarest of rare case. The Court clearly held that it is not a circumstance or some of the circumstances which by itself, would assist the Court to base a conviction but all circumstances put forth against the accused are once established beyond reasonable doubt then conviction must follow and all the inordinate circumstances would be used for collaborating the case of the prosecution.
+28.  This Court in Sudama Pandey v. State of Bihar [(2002) 1 SCC 679 2001 Indlaw SC 21243], has stated the principle that circumstances shall form a chain which should point to the guilt of the accused. The evidence led by the prosecution should prove particular facts relevant for that purpose and such proven facts must be wholly consistent with the guilt of the accused. Though in that case the Court, as a matter of fact, found that the prosecution had failed to prove the chain of circumstances pointing towards the guilt of the accused and gave the benefit of doubt to the accused. This judgment cannot be of any assistance to the case of the appellants. In fact, the principle of law stated in that case has been completely satisfied in the present case. The prosecution, in the case in hand, has been able to establish and prove complete chain of circumstances and events, which if collectively examined, clearly points to the guilt of the accused.
+29.  We have already noticed that statement of PW 6 along with other prosecution witnesses is of definite significance. It is in evidence that the entrance door of the house was used to be locked. It was opened only when the visitor to the house press the call bell and such person was duly identifiable to the member of the family, watching from the 1st floor and that the keys were sent down with the help of a thread to enable the visitor to open the outside lock and then to enter the house. Keeping this routine practice adopted by the family of the deceased, it is clear that both the accused could enter the house only by the process indicated above or by break opening the lock of the entrance door. This is nobody's case before the Court that the lock or the door itself was broken by the miscreants who entered the house of the deceased. The only possible inference is that these accused were known to the family, as stated by the witnesses including PW 6 and they entered the house in the manner afore stated and upon entering the house they ransacked the house and committed the murder of Phool Guha and fled away with stolen articles. The stolen articles were subsequently recovered from them and duly identified during investigation and trial. All these circumstances established the case of the prosecution beyond any reasonable doubt.
+For the reasons afore stated the appeal is dismissed.
+Appeal dismissed.

Object_casedocs/C1022.txt

@@ -0,0 +1,51 @@
+Fida Hussain and others v Moradabad Development Authority & Anr
+Supreme Court of India
+
+19 July 2011
+CIVIL APPEAL NO. 5448 OF 2006
+The Judgment was delivered by : Hon'ble Justice H. L. Dattu
+1.   This batch of appeals is directed against the separate orders passed by the High Court of Allahabad in Regular First Appeals filed by land owners for enhancement of compensation awarded by the Reference Court for the lands acquired under the Land Acquisition Act, 1894, [hereinafter referred to as 'the Act'] in the villages of Harthala and Mukkarrabpur. There are in all 30 appeals before us, out of which, 23 are in relation to the village of Harthala and 7 in relation to the village of Mukkarrabpur.
+2.   In view of the orders we propose to pass in all these appeals, we deem it unnecessary to state the facts giving rise to the present appeals in greater details and a brief reference thereto would suffice to appreciate the controversy.
+3.   Lands in Village of Harthala:- There are twenty three appeals relating to this village. Under Section 4 read with Section 17 of the Act, Notification dated 20.09.1990 was issued and published by the State Government for the acquisition of the lands of the appellants. Subsequently, a declaration dated 10.06.1991 was published in the Gazette, under Section 6 of the Act. The lands acquired were taken physical possession by the State Government. In accordance with Section 11 of the Act, the Land Acquisition Officer [hereinafter referred to as 'the LAO'] assessed the market value of the acquired lands at Rs. 80 per sq. meter vide order dated 18.09.1993 as compensation. Dissatisfied with the award of the LAO, the land owners filed objections, inter-alia claiming that the market value of the acquired lands is Rs. 1000 per sq. meter, due to the proximity of the lands to the city of Moradabad. After scrutinizing the evidence on record, the Reference Court had come to the conclusion that the market value of the nearby land was Rs. 550 per sq. meter, however, taking into consideration the location and potentiality of the lands and also proximity of the lands from the city of Moradabad and other relevant factors, enhanced the compensation awarded to Rs. 270 per sq. meter. The State preferred appeals against the enhancement so made by the Reference Court and the High Court has allowed the same in the light of the judgment of the Court in First Appeal No. 247 of 1997 dated 05.03.2004.
+4.   Lands in village of Mukkarabbpur:- Seven of the present appeals relate to the village of Mukkarabbpur. A Notification for acquisition of the lands under the Act was issued and published on 20.08.1992. In pursuance of the Notification, the State took possession of the said lands on 06.05.1997 by paying 80% of the estimated compensation at the rate of Rs. 150 per sq. meter. However, vide order dated 29.08.1997, the LAO fixed the compensation at the rate of Rs. 92.59 per sq. meter. Aggrieved by the same, the appellants moved the Reference Court and produced evidence in support of their claim that the prevailing rates of land in that village and its roundabouts were much higher. After giving due consideration to the claim made and the evidence on record, the Reference Court enhanced the compensation to Rs. 350 per sq. meter. The respondents preferred appeals to the High Court, and the same came to be allowed, reviving the award passed by the LAO.
+5.   Shri. M. L. Varma, learned senior counsel, appears for the appellants, and Shri. M.P. Shorawala, learned counsel, holds the brief for the respondents.
+6.   At the outset, it is relevant to note that the question of adequacy of compensation for the lands acquired in these two villages under the same notification has been gone into by this Court in the case of Gafar and Ors. v. Moradabad Development Authority, (2007) 7 SCC 614 2007 Indlaw SC 815. In that case, this Court made a detailed enquiry into the method of valuation adopted by the LAO and the enhancement of compensation by the Reference Court. This Court took the view that the evidence relied upon by the Reference Court while enhancing the compensation were not reliable, and, therefore, the High Court was justified in setting aside the order passed by the Reference Court and restoring the award passed by the LAO.
+7.   In Gafar's case for the lands acquired in the village of Harthala under Notification dated 13.09.1991, after a detailed consideration of the compensation awarded by the LAO, this Court held:
+"15. We find that the Awarding Officer had taken note of a sale deed, which was at a time proximate to the date of notifications in these cases and it related to a piece of land, though a small extent, which was not distant from the acquired lands, to borrow the language of the Awarding Officer. We are inclined to see some force in the stand adopted by the High Court that the Awarding Officer himself had been generous in his award. Since he has adopted such a rate, the question is whether this Court should interfere with the decision of the High Court restoring that Award or award any further compensation.
+16. The scope of interference by this Court was delineated by the decision in Kanta Prasad Singh v. State of Bihar wherein this Court held that there was an element of guess work inherent in most cases involving determination of the market value of the acquired land. If the judgment of the High Court revealed that it had taken into consideration the relevant factors prescribed by the Act, in appeal under Article 133 of the Constitution of India, assessment of market value thus made should not be disturbed by the Supreme Court. For the purpose of deciding whether we should interfere, we have taken note of the position adopted by the Awarding Officer, the stand adopted by the Reference Court and the relevant aspects discussed by the High Court. On such appreciation of the facts and circumstances of the case as a whole, we are of the view that the sum of Rs. 80 per square meter awarded as compensation in these cases is just compensation paid to the land owners. Once we have thus found the compensation to be just, there arises no occasion for this Court to interfere with the decision of the High Court restoring the award of the Land Acquisition Officer.
+17. In view of our conclusion as above, all the appeals relating to Harthala have only to be dismissed."
+8.   In respect to the lands acquired in village of Mukkarabbpur, this Court, in Gafar's case, held:
+"18. In respect of the lands at Mukkarrabpur, the claim for enhancement was allowed by the Reference Court in spite of the finding that the evidence of P.Ws. 1 and 2 adduced on behalf of the claimants was unreliable. It also found that the two sale deeds relied on by the claimant in support of the claim for enhancement were also not comparable or reliable in the light of the evidence of the claimant himself and that it has not been shown that the lands involved therein were comparable to the lands acquired. In spite of it, the Reference Court granted an enhancement only based on its award in L.A.R. No. 134 of 1988 and on that basis the award was made at Rs. 192/- per square meter. Obviously, the award in L.A.R. No. 134 of 1988 was set aside by the High Court. Hence, the award of the Reference Court in the case on hand became untenable. Once no reliance could be placed on that award to enhance the compensation, it is clear that even on the finding of the Reference Court, no claim for enhancement has been made out by the claimants. In that situation, the High Court was fully justified in setting aside the award of the Reference Court and in restoring the award of the Land Acquisition Officer.
+19. We may incidentally notice that the lands were agricultural lands being used for cultivation and even the method of valuing it on the basis of price per square meter does not appear to be justified. All the same, the award has adopted that method and the State cannot go back on it. In the absence of any acceptable legal evidence to support the claim for enhancement, no grounds are made out for interference with the decision of the High Court in the appeals relating to village Mukkarrabpur."
+9.   This Court also held that it could not be said that the High Court had adopted an erroneous approach or employed the wrong principles in regard to the claim for enhancement of compensation, or that, it has so erred as to warrant interference under Article 136 of the Constitution of India.
+10.   A review petition filed by the appellants therein was also dismissed by this Court.
+11.   Shri. M.L. Varma, learned senior counsel, submits that the findings and the conclusions in the judgment of this Court in the case of Gafar are flawed for the reason that the exemplars relied on for deciding the compensation was for inundated land, and hence, the same could not reflect the true value of the land. He further submits that relevant sale deeds were not taken into consideration by the Court while concluding that the Reference Court had erred in enhancing the compensation and that the High Court was correct in setting aside the same. The learned senior counsel also submits that this Court should have remanded the matters to the High Court in the case of Gafar, as the High Court, being the first appellate Court, was required to give a reasoned judgment while allowing appeals against the order of the Reference Court enhancing the compensation. In the alternative, Shri. Varma contends that the decision in Gafar's case does not operate as a binding precedent on the present set of appeals, since this Court has not decided any legal issue. It is also stated that the decision does not operate as a res judicata, as the parties were different. It is further argued that out of the thirty appeals that are listed before us, in the seven appeals relating to the acquisition of lands in the village of Mukkarrbpur, the matters were not shown on the cause list on the day they were disposed of. He further states that in some other cases (six appeals), the learned counsel appearing for the respondents before the High Court (appellants before us) had submitted an "illness slip" and had not appeared on the day, the matters were disposed of. Shri. Varma further contends that in as many as seventeen appeals before us, the Development Authority had filed applications for substitution to bring on record the legal representatives of the deceased land owners and without considering and deciding the applications, the High Court could not have passed the impugned orders. Despite all these procedural infirmities, the High Court could not have allowed the Regular First Appeals filed by the State, is the contention of learned senior counsel Shri Varma.
+12.   Pursuant to the direction issued by this Court, an affidavit has been filed by Shri. V. P. Rai, learned counsel, who had appeared before the High Court, in support of factual assertion made by Sri Varma. Learned counsel in his affidavit has stated that seven appeals before the High Court (listed as C.A. No. 5502/2006, C.A. No. 5499/2006, C.A. No. 5501/2006, C.A. No. 5404/2006, C.A. No. 5507/2006, C.A. No. 5508/2006 and 5511/2006 before us, all relating to the village of Mukkarrabpur) were not shown on the cause list of the High Court on the day they were disposed of, and hence, he had no knowledge about the hearing of the appeals. Shri. Rai, has further stated, that as many six appeals (listed as C.A. No. 5448/2006, C.A. No. 5391/2006, C.A. No. 5397/2006, C.A. No. 5445/2006, C.A. No. 5452/2006 and C.A. No. 5455/2006 before us) in which he was appearing, were disposed of on the day, he had submitted an "illness slip" due to his ill health.
+13.   Per contra, Shri. M.P. Shorawala, learned counsel, has argued that there is no legal or factual infirmity in the judgment of this Court in the case of Gafar. He submits that this Court has already dealt with the merits of the matter at length in the case of Gafar and the same need not be gone into, once over, again by this Court. With regard to the point of non-listing of cases, the learned counsel contends that the cause lists are prepared under the authority of Hon'ble the Chief Justice of the High Court, and it was not the practice of the Court to send the files of matters that were not listed, to the Court Hall, let alone hear them and dispose them of.
+14.   Having carefully considered the submissions of the learned senior counsel Shri Varma, we are of the view that the judgment in Gafar's case does not require reconsideration by this Court. In Gafar's case, this Court had meticulously examined all the legal contentions canvassed by the parties to the lis and had come to the conclusion that the High Court has not committed any error which warrants interference. In the present appeals, the challenge is for the compensation assessed for the lands notified and acquired under the same notification pertaining to the same villages. Therefore, it would not be proper for us to take a different view, on the ground that what was considered by this Court was on a different fact situation. This view of ours is fortified by the Judgment of this Court in the case of B.M. Lakhani v. Municipal Committee, (1970) 2 SCC 267 1970 Indlaw SC 510, wherein it is held that a decision of this Court is binding when the same question is raised again before this Court, and reconsideration cannot be pleaded on the ground that relevant provisions, etc., were not considered by the Court in the former case.
+15.   With regard to the contention that the decision of the Court in the case of Gafar did not operate as res judicata for the present batch of cases, we are of the view that the principles of Resjudicata would apply only when the lis was inter-parties and had attained finality of the issues involved. The said Principles will, however, have no application interalia in a case where the Judgment and/or order had been passed by a Court having no jurisdiction thereof and/or involving a pure question of law. The principle of Resjudicata will, therefore, have no application in the facts of the present case.
+16.   To examine the other limb of the contention of the learned senior counsel that the judgment in the case of Gafar did not operate as a precedent for the present batch of cases, as no point of law was decided, this issue requires to be considered in the light of the judicial pronouncement of this Court.
+17.   In the case of Shenoy & Co. v. CTO, (1985) 2 SCC 512 1985 Indlaw SC 337, a number of writ petitions were allowed by the High Court. However, the State chose to file appeal only in one case, which came to be allowed by this Court in the said case. In this fact situation, this Court took the view that the decision of this Court was binding on all the writ petitioners before the High Court, even though they were not respondents in the appeal before this Court. It was held:
+"22. Though a large number of writ petitions were filed challenging the Act, all those writ petitions were grouped together, heard together and were disposed of by the High Court by a common judgment. No petitioner advanced any contention peculiar or individual to his petition, not common to others. To be precise, the dispute in the cause or controversy between the State and each petitioner had no personal or individual element in it or anything personal or peculiar to each petitioner. The challenge to the constitutional validity of 1979 Act proceeded on identical grounds common to all petitioners. This challenge was accepted by the High Court by a common judgment and it was this common judgment that was the subject-matter of appeal before this Court in Hansa Corporation case. When the Supreme Court repelled the challenge and held the Act constitutionally valid, it in terms disposed of not the appeal in Hansa Corporation case alone, but petitions in which the High Court issued mandamus on the non-existent ground that the 1979 Act was constitutionally invalid. It is, therefore, idle to contend that the law laid down by this Court in that judgment would bind only the Hansa Corporation and not the other petitioners against whom the State of Karnataka had not filed any appeal. To do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution. Article 141 reads as follows:
+"The law declared by the Supreme Court shall be binding on all courts within the territory of India. A mere reading of this article brings into sharp focus its expanse and its all pervasive nature. In cases like this, where numerous petitions are disposed of by a common judgment and only one appeal is filed, the parties to the common judgment could very well have and should have intervened and could have requested the Court to hear them also. They cannot be heard to say that the decision was taken by this Court behind their back or profess ignorance of the fact that an appeal had been filed by the State against the common judgment. We would like to observe that, in the fitness of things, it would be desirable that the State Government also took out publication in such cases to alert parties bound by the judgment, of the fact that an appeal had been preferred before this Court by them. We do not find fault with the State for having filed only one appeal. It is, of course, an economising procedure."
+18.  The judgment in Hansa Corporation case rendered by one of us (Desai, J.) concludes as follows:
+"As we are not able to uphold the contentions which found favour with the High Court in striking down the impugned Act and the notification issued thereunder and as we find no merit in other contentions canvassed on behalf of the respondent for sustaining the judgment of the High Court, this appeal must succeed. Accordingly, this appeal is allowed and the judgment of the High Court is quashed and set aside and the petition filed by the respondent in the High Court is dismissed with costs throughout."
+19.  To contend that this conclusion applies only to the party before this Court is to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory. But setting aside the common judgment of the High Court, the mandamus issued by the High Court is rendered ineffective not only in one case but in all cases.
+20.  A writ or an order in the nature of mandamus has always been understood to mean a command issuing from the Court, competent to do the same, to a public servant amongst others, to perform a duty attaching to the office, failure to perform which leads to the initiation of action. In this case, the petitioners-appellants assert that the mandamus in their case was issued by the High Court commanding the authority to desist or forbear from enforcing the provisions of an Act which was not validly enacted. In other words, a writ of mandamus was predicated upon the view that the High Court took that the 1979 Act was constitutionally invalid. Consequently the Court directed the authorities under the said Act to forbear from enforcing the provisions of the Act qua the petitioners. The Act was subsequently declared constitutionally valid by this Court. the Act, therefore, was under an eclipse, for a short duration; but with the declaration of the law by this Court, the temporary shadow cast on it by the mandamus disappeared and the Act revived with its full vigour, the constitutional invalidity held by the High Court having been removed by the judgment of this Court. If the law so declared invalid is held constitutionally valid, effective and binding by the Supreme Court, the mandamus forbearing the authorities from enforcing its provisions would become ineffective and the authorities cannot be compelled to perform a negative duty. The declaration of the law is binding on everyone and it is therefore, futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed.
+21.  The fallacy of the argument can be better illustrated by looking at the submissions made from a slightly different angle. Assume for argument's sake that the mandamus in favour of the appellants survived notwithstanding the judgment of this Court. How do they enforce the mandamus? The normal procedure is to move the Court in contempt when the parties against whom mandamus is issued disrespect it. Supposing contempt petitions are filed and notices are issued to the State. The State's answer to the Court will be: "Can I be punished for disrespecting the mandamus, when the law of the land has been laid down by the Supreme Court against the mandamus issued, which law is equally binding on me and on you?" Which Court can punish a party for contempt under these circumstances? The answer can be only in the negative because the mandamus issued by the High Court becomes ineffective and unenforceable when the basis on which it was issued falls, by the declaration by the Supreme Court, of the validity of 1979 Act.
+22.  In view of this conclusion of ours, we do not think it necessary to refer to the other arguments raised before the High Court and which the learned counsel for the appellants attempted to raise before us also. The appeals can be disposed of on this short point stated above. The judgment of this Court in Hansa Corporation case is binding on all concerned whether they were parties to the judgment or not. We would like to make it clear that there is no inconsistency in the finding of this Court in Joginder Singh case and Makhanlal Waza case. The ratio is the same and the appellants cannot take advantage of certain observations made by this Court in Joginder Singh case for the reasons indicated above."
+23.   In the case of Director of Settlements, A.P. v. M. R. Apparao, (2002) 4 SCC 638 2002 Indlaw SC 1956, this Court held:
+"7. So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence... A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. ... The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case..."
+24.   The position was made clear by the decision of this Court in the case of Union of India v. Krishan Lal Arneja, (2004) 8 SCC 453 2004 Indlaw SC 341. In this case, 14 properties were notified for acquisition under the provisions of the Land Acquisition Act, 1898. Only two persons, namely Banwari Lal & Sons and Shakuntala Gupta, had previously challenged the validity of the acquisition by filing writ petitions before the High Court and having the cases decided in their favour finally by this Court. This Court held that the decisions in the earlier cases were a binding precedent for this subsequent appeal that was preferred by the Union of India. This Court held:
+"12....The decision in Banwari Lal and Shakuntala Gupta of this Court in relation to the same notification may not be binding on the principle of res judicata. The argument, however, cannot be accepted that those decisions are not binding being "property-specific" in those cases. In our considered opinion, the decisions are binding as precedents on the question of validity of the notification, which invokes urgency clause under Section 17 of the Act. We find ourselves in full agreement with the ratio of the decisions in those cases that urgency clause, on the facts and circumstances, which are similar to the present cases, could not have been invoked. The two decisions are, therefore, binding as precedents of this Court. We are not able to find any distinction or difference as to the ground of urgency in regard to the properties covered by these appeals."
+25.   It is now well settled that a decision of this Court based on specific facts does not operate as a precedent for future cases. Only the principles of law that emanate from a judgment of this Court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Article 141. However, if the question of law before the Court is same as in the previous case, the judgment of the Court in the former is binding in the latter, for the reason that the question of law before the Court is already settled. In other words, if the Court determines a certain issue for a certain set of facts, then, that issue stands determined for any other matter on the same set of facts.
+26.   The other reasons given by Shri. M.L. Varma, learned senior counsel, for contending that the case of Gafar does not apply as a precedent in other cases are threefold: (a) that seven of the present appeals relating to Mukkarrabpur were not heard due to non-listing; (b) in six matters relating to Harthala, the matters were disposed of in the absence of the counsel, who was absent due to his ill health and submission of "illness slip"; and (c) in some of the cases, the applications for substitution was pending before the High Court, and these matters could not be disposed of by allowing the appeal against the dead persons. We are not impressed by these contentions.
+27.   In the factual matrix of the present case, the adequacy of compensation for the acquisition of land, in the aforesaid villages, was the issue before this Court in the case of Gafar and in these appeals also. The issue is now settled by this Court in the case of Gafar and Ors 2007 Indlaw SC 815. (supra). The decision of co-equal Bench is binding on this Court. We may usefully note the decision of this Court in the case of Union of India vs. Raghubir Singh (1989) 178 ITR 548 1989 Indlaw SC 914. The Court observed that the pronouncement of law by a Division Bench of this Court is binding on a subsequent Division Bench of the same or a smaller number of Judges and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of this Court. Judicial decorum and certainty of law require a Division Bench to follow the decision of another Division Bench and of a larger Bench and, even if, the reasons to be stated, a different view was necessitated, the matter should be only referred to Hon'ble The Chief Justice for referring the question to a larger Bench.
+28.   The learned senior counsel emphasizes the fact that the present appellants were not heard when the appeals were decided by the High Court, due to non-listing or disposal of the matters when their counsel had submitted "illness slip" and was not present in Court. He further states that in several cases, the appellants had died, and the applications for substitution of legal heirs were filed by the Development Authority, which were pending in all but in one case. In the one case [presently numbered as C.A. No. 5421/2006], Shri. Varma states that the application was dismissed by the Court. He contends that the rules of natural justice of providing a fair hearing have not been followed. He states that it would be in the interest of justice to remand the matters back to the High Court to decide the appeals on merits, keeping in view the parameters while disposing of the first appeals by the High Court. Shri. Shorawala, learned counsel for the respondent, does not seriously dispute the issue of non-listing raised by the appellants, except stating that the cause list was published under the authority of Hon'ble the Chief Justice of the High Court, and it was not the practice of any Court to dispose of a matter without it being listed.
+29.   We have considered the contention canvassed by Shri. Varma, learned senior counsel and the affidavit filed by Shri. V.P. Rai in this regard. It is possible that due to the same nature of the matters, the learned Division Bench sitting in appeal may have considered it proper to dispose of the matters though they were not listed on the said day or the advocate for the appellants was not present. This issue is raised only in thirteen appeals filed before us. With regard to seventeen appeals, the appellants have contended that the substitution of legal heirs had not happened, and that the matter had abated.
+30.   It is in C.A. No. 5421 of 2006, in which the appellants have contended that the application for substitution was rejected, and by that order, the appeal had abated. We have perused the appeal paper books, and do not find any ground taken in this regard. Even the order dated 7/1/2004, by which the application for substitution was supposedly rejected by the High Court, has not been annexed. In the light of this, we are not inclined to accept the argument that the appeal had abated.
+31.   On perusal of the appeal paper books of the thirty appeals before us, we find that in some of the appeals [Namely C.A. Nos. 5429/2006 and 5457/2006], the presence of the learned counsel is recorded Though some of the appellants before us may not have been heard by the High Court due to non-listing of the matter or disposal in the absence of the advocate, it is clear from the impugned orders enclosed in some of the appeal paper books that the learned counsel for some of the appellants have been heard. It is settled position that the Court speaks through its order and whatever stated therein has to be read as correct and, therefore, we will go by what is recorded in the impugned judgment, rather than what the counsel have stated at the time of hearing of these appeals. In this view of the matter, we are not inclined to accept that the learned counsel were not heard in all the matters against which appeals are filed.
+32.   Having regard to the submissions urged on behalf of the appellants in so far as not considering the application for substitution of the L.Rs. of deceased appellants, we would have remitted the matter back to the High Court to give an opportunity to the appellants herein, who are the legal representatives of some of the deceased appellants to afford an opportunity of hearing and decide the appeals on merits. That, however, would only be a formality because having regard to the law laid down by this Court in Gafar's case, the High Court is bound to follow that decision, since the notification for acquiring the lands in respect of the villages are one and the same.
+33.   The learned senior counsel may be, as a last salvo, submits that in the event, we are not inclined to grant any of the reliefs that he has asked for, then we may direct that the amounts paid by way of compensation pursuant to the judgment of the Reference Court need not be recovered and the securities furnished by some of the appellants need not be enforced. This prayer is contested by the learned counsel for the respondents. This request of Shri. Varma appears to be reasonable. The land acquisition in question is of two decades old, and it is plausible that the landowners have utilized the compensation amount paid for one purpose or the other. In such circumstances, we are not inclined to put an extra burden of repayment on them. Therefore, while dismissing the appeals, we clarify that in the peculiar facts and circumstances of the case and in the interest of justice, we restrain the respondents from recovering the amounts paid as compensation or enforcing security offered while withdrawing the compensation amount pursuant to order passed by the Reference Court.
+34.   In light of the above, the appeals are dismissed with the rider as indicated by us at paragraph 28 of the judgment. Costs are made easy.
+Appeals dismissed

Object_casedocs/C1023.txt

@@ -0,0 +1,23 @@
+Debabrata Gupta v S. K. Ghosh
+Supreme Court of India
+
+23 February 1970
+Criminal Appeal No. 134 of
+1967
+The Judgment was delivered by : A. N. Ray, J.
+1. This is an appeal by special leave against the judgment of the Calcutta High Court dated 7 June, 1967 refusing to quash the process issued and the proceedings pending before the Additional Chief Presidency Magistrate, Calcutta under section 406 of the Indian Penal Code.
+2. The appellant and the respondent entered into a registered deed of partnership on 27 March, 1963. The name of the partnership business was "Allied Engineers". The nature of the business was that if the tender submitted by the respondent to the Eastern Railways for extension of bridge No., 2 at the west and of Howrah yard, West Bengal was accepted by the Eastern Railways the said work would be deemed to be included within the partnership. Under the terms of partnership agreement the capital was Rs. 20,000 to be contributed equally by the partners within six months from the date of the agreement. The main office of the partnership was at 12/1/5 Manohar Pukur Road, Kalighat, Calcutta. Another term of the partnership was that if the tender was accepted the appellant would advance or lend from time to time a total sum of Rs. 20,000 towards the work represented by the tender as and when necessary. The amount so advanced would be repayable to the appellant with interest at six per cent per annum and 50% of the profit to be earned. The respondent was, under the terms of partnership agreement, to execute an irrevocable power of attorney in the manner and with powers as provided in the draft approved by the partners. The bankers of the firm would be United Bank of India Limited and all cheques on the said bank would be signed by both the partners. The agreement further provided that all cheques in respect of the work in the name of the respondent, S. K. Ghosh, in Eastern Railways would be drawn on the banking account operated by the partner Debabrata Gupta, namely, the appellant for which the respondent would execute an irrevocable power of attorney.
+3. The case of the appellant is that he advanced to the partnership from time to time an, aggregate sum of Rs. 50,000 for completion of the work. The respondent executed the power of attorney in favour of the appellant on 27 March, 1963 and authorised the appellant to submit all bills, interim as well as final, to receive cheques and to do necessary things on behalf of the respondent in connection with the said work for extension of bridge under the partnership agreement.
+4. On 18 April, 1964 a second deed of partnership was made between the appellant and the respondent in modification of the earlier deed dated 27 March, 1963. It was recited there that the appellant had invested to the extent of Rs. 50,000 for the aforesaid work of construction of the bridge. It was also recited in the agreement that the respondent was not in a position to contribute to his share of the capital. The second deed further provided that the amount contributed by the appellant "shall be repaid immediately after the collection of the bills from the Eastern Railways". The banking account was to be operated by the appellant and all bills collected and security refunded by the Eastern Railways in of the first agreement was to be deposited by the parties with the bank forthwith.
+5. It appears that disputes arose between the appellant and the respondent whereupon the respondent wrote to the bank to stop. all payments to the appellant. The respondent sent to the appellant a notice for dissolution of the partnership. The appellant in accordance with the partnership agreement instituted proceedings in the High Court at Calcutta on or about 8 September, 1965 for filing an arbitration agreement under section 20 of the Arbitration Act. The High Court appointed an arbitrator for adjudication of disputes between the parties.
+6. Meanwhile, summons was issued by the Chief Presidency Magistrate, Calcutta under sections 406 and 424/34 of the Indian Penal Code against the appellant. The respondent on 19 June, 1965 had lodged a complaint against the appellant for process under sections 406 and 424/34 of the Indian Penal Code against the appellant and against two other persons alleging that the appellant had dishonestly withdrawn sums totaling about Rs. 92,000 from the account of the partnership firm and further that in collusion with other persons had removed the books of accounts.
+7. The respondent also filed a suit being Title Suit No. 15 of 1966 in the Third Court of the Subordinate Judge, Alipore, West Bengal against the appellant for dissolution of partnership and for accounts. In that suit the respondent obtained a temporary injunction against the appellant restraining him from receiving payment from the Eastern Railways and from operating the bank account of the partnership.
+8. The appellant and the accused No. 2 instituted proceedings in the High Court at Calcutta for quashing the criminal proceedings. The High Court at Calcutta quashed the process issued under sections 424/34 of the Indian Penal Code against accused No. 2 on the ground of want of territorial jurisdiction, but refused to quash the process u/s. 406 of the Indian Penal Code, against the appellant.
+9. Counsel on behalf of the appellant contended first that there could be no issue of process in disputes between the partners and secondly the Additional Chief Presidency Magistrate had no jurisdiction to issue process because the alleged offence had taken place outside the jurisdiction of that court. Counsel for the appellant relying on the decision of this Court in R. P. Kapur v. The State of Punjab 1960 Indlaw SC 471 contended that the High Court could, exercise inherent jurisdiction to quash proceedings where the allegations in the complaint did not make out a case. It is true that the Court can in some cases do so. The question is whether the present case is one of that type.
+10. Counsel for the appellant relied on the decision of this Court in Velji Raghavji Patel v. State of Maharashtra ([1965] 2 S.C.R. 429 1964 Indlaw SC 365) where one of the partners was convicted of an offence of criminal breach of trust u/s. 409 of the Indian Penal Code and this Court held that where a partner realised the sum in his capacity as partner and utilised them for the business of the partnership, he was only liable to render accounts to his partners and his failure to do so would not amount to criminal breach of trust. Counsel for the appellant invoked the application of the same doctrine to the present case.
+11. In order to accede to the contention it has to be established first that the dispute is only between the partners and secondly it does not relate to any special entrustment of property which constitutes one of the basic ingredients of an offence u/s. 406 of the Indian Penal Code. This Court in Patel's case approved the decision of the Calcutta High Court in Bhuban Mohan Rana v. Surendra Mohan Das(I.L.R. [1952] 2 Cal. 23 1951 Indlaw CAL 283) and said that before criminal breach of trust is established it must be shown that the person charged has been entrusted with property or with dominion over the property. In other words, the offence of criminal breach of trust under section 406 of the Indian Penal Code is not in respect of property belonging to, the partnership but is an offence committed by the person in respect of property which has been specially entrusted to such a person and which be holds in a fiduciary capacity.
+12. In the present case, the appellant denies that there was any special entrustment of any property or that he was holding any property in a fiduciary capacity. It is neither possible nor desirable to express any opinion on the merits of such a plea. If is not possible to do so because the facts are not in possession of the court and furthermore the facts cannot be before the court without proper investigation -and enquiry. It is not desirable to do so because if any such opinion be expressed it may prejudice ox embarrass either party.
+13. The plea as to lack of territorial jurisdiction cannot also be decided on the materials nor can an opinion be expressed on that question.
+14. It is made clear that all pleas and defenses are left open to the appellant including the question whether there was any special entrustment of any property to the appellant and the territorial jurisdiction of the Court.
+For these reasons, the appeal fails and is dismissed.
+Appeal dismissed.

Object_casedocs/C1024.txt

@@ -0,0 +1,31 @@
+Thanedar Singh v State Of Madhya Pradesh
+Supreme Court of India
+
+30 October 2001
+Appeal (crl.) 1123 of 2000
+The Judgment was delivered by: P. Venkatarama Reddi, J.
+1. This appeal arises out of the judgment of Madhya Pradesh High Court (Gwalior Bench) dated 6.7.2000 reversing the verdict of acquittal recorded by the first Additional Session Judge, Morena, in Sessions Case No. 178/83. The accused herein was charged along with six others for committing murder of one Rajbahadur Singh. The appellant was charged u/s. 148 and S. 302 IPC whereas others were charged under Sections 148, 302 read with S. 149 IPC. The Sessions Judge acquitted all the accused. On appeal by the State u/s. 378 Cr.P.C., the High Court granted leave to appeal only against the appellant. The High Court found the appellant guilty of murdering Rajbahadur Singh and convicted him under S. 302 IPC and sentenced him to life imprisonment. The High Court held that there was sufficient evidence that the appellant-accused had shot the deceased and the trial court committed serious error in acquitting him.
+2. The prosecution case is that on the intervening night of 18/19th May, 1982, the deceased Rajbahadur Singh and his father Bhola Singh (PW6) were sleeping at the threshing floor of their field (Khalihan). Rajbahadur (deceased) was sleeping on the heap of Arhar gram and his father was sleeping on a cot nearby. About mid-night time, seven persons including the appellant and his father came to the spot. On exhortation by one of the accused-Charan Singh, the appellant Thanedar fired at the deceased from close range. Rajbahadur Singh died instantaneously. The father of the deceased Bhola singh who was witnessing the incident raised hue and cry after the accused persons left the scene. On hearing the sound of gunshot and the cries of Bhola Singh, his relation by name Surat Singh (PW 8) who was sleeping at the nearby Khalihan woke up and saw five persons (other than the appellant) armed with weapons going towards the village Sikrodi. He then went to the Khalihan of his uncle and found Rajbahadur Singh lying dead. He came to know about the incident through Bhola Singh. Surat Singh went to the Police Station, Sihania which is 6 K.M. away in the morning and lodged the report. ASI, Rajaram (PW10) recorded the FIR at 8.45 A.M. The FIR is Ex. P 10. In the FIR, amongst others, the name of the appellant is shown as the actual assailant.
+There is also a recital in the FIR that there was enmity between the accused and the deceased last month in connection with the ploughing of Khalihan and there was a fight between Rajbahadur and Charan Singh (one of the accused). The crime was registered. ASI PW 10, who went to the spot found a gunshot wound on the chest of the deceased and he seized the dead body and prepared inquest panchanama (P 6). An empty cartridge of 7 mm bore which was found at the spot was seized under Ex. P 7. He sent the dead body for post-mortem which was conducted by Dr. D.S. Badukar (PW7) on the morning of 20.5.1982. He found a bullet entry injury measuring .7 X .7 cm in round shape on the right chest and an exit injury measuring 2.5 cm X 2.5. cm in round shape. The fourth and eighth ribs were found broken, middle portion of left lung and inner part of the chest was destroyed with the resultant damage to heart. According to him, the death occurred on account of haemorrhage and shock caused by the said injuries attributable to the bullet fired by rifle. According to PW7, the injuries were sufficient in the ordinary course of nature to cause death. PW 10 prepared an abscondence memo (Ex. P 13) pertaining to the accused on 19.5.1982. He arrested the accused- appellant on 5.6.1982 and the other accused later on. He seized a mouser rifle lying in Police Station Tighra in connection with crime No.14/82 under Ex. P 20 and this, according to the prosecution was the weapon used by the accused. It is said to have been stolen from one Balmukund a few days before the occurrence.
+3. PW 6, the father of the victim, is the eye witness. PW 8 and PW 4 who are close relations of the deceased were examined in order to show that the accused were seen near the place of occurrence soon after the occurrence. The case of the defence broadly was that PW 6 was not the real eye witness and the FIR containing the names of accused was brought into existence two or three days after the incident. The trial court disbelieved the evidence of PWs 6, 8 and 4 and doubted the correctness of the prosecution version as regards the recording of FIR on the morning of 19th May. All the accused were acquitted. On appeal by the State which was confined to the appellant herein, the impugned judgment has been rendered by the High Court finding the appellant guilty under S. 302 IPC.
+4. Having gone through the evidence and the record, we are of the view that the impugned judgment of the High Court shall not be allowed to stand.
+5. The factors relied upon by the Trial Court as well as those which cast doubt on the prosecution version are the following:
+5.1 Eye witness, namely PW 6, the father of the deceased could not have identified the accused persons as the occurrence took place according to PWs 6 and 8, at about mid-night (between 12 and 1 a.m.) and it was a dark night according to the evidence adduced by defence. The evidence of DW 1 that as per the almanac, the rising time of the moon was about 2.30 a.m. on the crucial day was relied upon by the Trial Court.
+5.2 PW 6 did not reveal to his kith and kin and the villagers who came to the place of occurrence in the morning about the names of any of the accused. However, he deposed that the names of the accused persons were mentioned to Jagjit, Balmukund and Maharaj Singh, but, they were not examined. As seen from the cross-examination at paragraph 24, he did not even disclose the name of the alleged assailant to his son Banwari. Had he identified the accused, who were known to him, he would have in the normal course disclosed the names at least to his close relations. This fact should be viewed in the context of defence version that the FIR was not recorded at the time and date it was purportedly recorded. Complaint was supposed to have been lodged by PW 8 at 9 a.m. on the morning following the night of occurrence. The defence produced a certified copy of the FIR received by the Court of First Class Judicial Magistrate, Amba, in which a note written by the clerk of the court showed that it was received on 21.5.1982. That document is Ext. D 4. The evidence of the date of sending the copy of FIR to the Magistrates court was not adduced by the prosecution inspite of giving more than one opportunity, as borne out by the endorsements on the order sheets dated 28.11.1984 and 7.12.1984. On 28.11.1984, it was noted that adverse inference will be drawn if the record was not produced. Yet, the prosecution failed to adduce proof. A specific suggestion was put to PW 10. (S.H.O., Sihonia P.S.) that FIR was prepared 2 or 3 days after the occurrence which, of course, was denied. P.W.10 admitted that no attempt was made to apprehend the accused on 19th and 20th May. It is significant to note that the Crime No./FIR No. is not to be found in the inquest report (P.6), (P.5) site plan or (P.8) which is a requisition sent to the hospital for post-mortem. No reference whatsoever is made in Exh. P 6 about the information, if any, furnished by PW 8 or PW 6. All this would support the defence version that FIR (P-10) in which the names of accused were mentioned would have probably come into existence much later.
+In this context it is apposite to refer to the decision of this Court in Meharaj Singh Vs. State of U.P. (1994 (5) SCC 188), 1994 Indlaw SC 450 there also the question whether FIR was ante-timed to rope in the accused after some deliberations or to suit the investigation came up for consideration. Dr. A.S. Anand, J. (as his Lordship then was) speaking for the Bench observed thus:-
+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, 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 or 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 u/s. 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-timed 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 PW8.
+Earlier, the fact that the number of FIR or Crime Number was not found in the inquest report or in the requisition for the post-mortem was adversely commented upon by the learned Judges. The fact situation is more or less the same here. We do not think that there is anything in the decision of this Court in Shivram vs. State of U.P. (1998 (1) SCC 149), 1997 Indlaw SC 1607 which goes against the legal position laid down in Meharaj Singhs case1994 Indlaw SC 450. No broad proposition can be said to have been enunciated in that later case that inordinate and unexplained delay in sending the FIR to the Magistrate would be an immaterial factor liable to be ignored altogether.
+5.3 The weapon is a 7 mm bore rifle with 20 long barrel which was seized by PW 10 on 25.8.82 at the Police Station, Tigra where it was lying in connection with Crime No. 14 of 1982, but it has not been connected to the accused. The prosecution version that this gun which was stolen from some other person two days earlier came into the possession of the accused and the same was used in the murder of deceased remained unsubstantiated. Moreover, the report of the Forensic Science Laboratory which is Ex. P 17 revealed that there was no nexus between the seized gun and the empty cartridge found at the site of occurrence.
+5.4 The evidence of PW 8 (Surat Singh) who is supposed to have seen the accused persons at about the time of occurrence near the Khalihan of deceased, was not worthy of credence. There was no occasion for him to sleep in the fields when according to his own admission, he was not cultivating the lands. Moreover, PW 8, who lodged the complaint and closely related to the deceased, did not even mention the names of accused to any one in the village before lodging the complaint, according to his own admission. In any case, he stated in Ex. P.10 as well as in the deposition that he saw five accused (other than the appellant) on that crucial night soon after the occurrence and therefore his evidence does not go against the appellant.
+6. The High Court was of the view that the judgment of the Trial Court was perverse and its approach was unreasonable. The first comment made by the High Court was that the Trial Court did not assign any reason for disbelieving the FIR. The High Court found no infirmity in the FIR having regard to the fact that the part played by the accused appellant was specifically mentioned in the FIR. But, the High Court missed to note the crucial facts adverted to in Para 5.2 (supra) which cast a serious doubt on the correctness of the FIR, especially the time and date of its recording. The learned Sessions Judge particularly adverted to the fact that the prosecution did not produce the original record of police station relating to the receipt and despatch of FIR inspite of an order passed to that effect. Though the Trial Judge was not careful enough in recording a specific finding that the prosecution failed to clear the doubt regarding the date and time of recording the FIR, in sum and substance, that is what the learned Trial Judge purported to say. The observations of the Trial court were not properly understood by the High Court when it proceeded on the basis at paragraph 12 that the Trial court found fault with the delay in lodging the complaint at 9 A.M. on the next morning. But, it is to be noted that nowhere in the judgment, the trial court observed that the complaint having been lodged and recorded at 9A.M. next morning, that itself would tantamount to delay.
+7. The second aspect commented upon by the High Court was that there was no basis for the finding of the Trial Court that the moon rise was at about 3 OClock on 19th May. The learned Judges commented that the almanac was not brought on record. But, it is to be seen that the learned Sessions Judge referred to the evidence of DW 1 Pandit Kedar Nath whose evidence need not be thrown out merely for the reason that almanac was not filed. DW 1 was clear in his deposition that according to Kashi Vishwa Panchangam, which he brought with him, on the intervening night of 18th and 19th, the moon rise would be at 2.31 a.m. This statement has not been challenged in the cross-examination. The only point elicited in the cross-examination was that according to some other almanac, there will be some difference and the moon rise may be at 2.45 a.m. The statement of PW 6 that the night became bright after 12, mid-night is liable to be doubted. There is no basis for the assumption of the High Court that the rising of the moon could be before mid night. However, on the aspect of identification, the High Court may be justified in commenting, based on Nathuni Yadavs Vs. State of Bihar (1998 (9) SCC 238) 1996 Indlaw SC 1562 that the approach of the Trial court is faulty. In Nathuni Yadavs 1996 Indlaw SC 1562 case (supra), this Court pointed out that under certain circumstances, the lack of moonlight or artificial light does not per se preclude identification of the assailants. Thomas J. speaking for the Court observed :-
+Even 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 glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne 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 the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses 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 identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace.
+While the possibility of identification of the accused-appellant cannot be ruled out in the present case too having regard to the fact that the accused was not stranger and the occurrence was at an open place, there is one more factor which creates some difficulty in the matter of identification. PW 6 was sleeping on a cot at a little distance from the spot where the victim was sleeping. PW 6 stated that as many as five persons including the appellant surrounded his son and two of the accused were standing in front of his cot. In this situation, assuming that there was faint light emanating from the open sky, would it be possible for PW 6 to observe the appellant firing the shot from the rifle? The possibility seems to be remote. At any rate, this aspect ought to have engaged the attention of the High Court before reversing the trial courts finding on the point of identification by PW 6.
+8. The third comment made by the High Court is that no reason was assigned by the High Court for disbelieving the eye-witness PW 6 (wrongly noted as PW 3). This comment ignores the fact that the identification by PW 6 Bhola Singh was itself doubted by the Sessions Judge. That apart, as already pointed out supra, PW 6 categorically stated that he did not reveal the names of the accused to any one not even to his close relations after the occurrence. This point was also taken into account by the trial court .This fact which is not quite consistent with the professed knowledge of the witness about the assassin has not been taken into account by the High Court.
+9. The High Court then commented that the Trial Court was not justified in disbelieving PW 8 (wrongly noted as PW 9) who is the cousin of the deceased merely on the ground that since the lands were leased out, there was no occasion for him to sleep at the barn. The High Court, however, did not express any view of its own on the credibility and worth of the evidence of PW 8. His evidence was not re-appreciated. As already noticed, according to his version, he saw five accused persons near his field soon after the occurrence and the appellant was not one amongst them.
+10. The High Court found fault with the comment of the trial court that in Ex. P 5 (site plan), Ex. P 6 (inquest report) and Ex. P 8 (application for post mortem) the names of the accused were not mentioned. True, the details of the accused persons need not be mentioned in Ex. P.5 or Ex. P 8 but in the inquest report, it is not unusual to note the gist of FIR or the cause of death as narrated by the witnesses. We have already referred to the observations in Meharaj Singhs case1994 Indlaw SC 450 in this regard. Be that as it may, the trial courts conclusion will not be vitiated merely because certain inappropriate observations were incidentally made.
+11. As regards the motive for the crime, the High Court observed that one of the reasons for acquittal was that the motive was not proved. This is again a factually incorrect statement. In the trial courts judgment, the learned Judge did not attach much importance to motive as seen from  the judgment. Apart from observing that there was no evidence of enmity between the deceased and the accused, the trial court noted that much importance need not be given to this aspect as the case is based on eye witness account.
+12. The foregoing discussion shows that the High Court was not justified in making the comments that the trial court did not give reasons on certain important aspects or misdirected itself in the appreciation of evidence. Though the judgment of the trial court is somewhat perfunctory and lacking clarity in certain respects, on the whole, the approach and conclusions of the trial court cannot be said to be perverse or vitiated by any serious error warranting interference with the verdict of acquittal. The view taken by the trial court, in our opinion, is a reasonably possible view and, therefore, the High Court was not justified in reversing the acquittal insofar as the appellant is concerned. The High Court failed to address itself to certain crucial factors discussed above concerning the credibility of eye witness account and the correctness of the FIR.
+13. For the aforesaid reasons, the appeal is allowed. The conviction and sentence of the appellant under S. 302 IPC is set aside and the appellant is directed to be set at liberty forthwith, if not required to be detained in any other case.
+Appeal allowed.

Object_casedocs/C1025.txt

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+S. Velayudhan v Krishnan And Ors.
+Supreme Court of India
+
+1 April 1998
+The Judgment was delivered by : G. T. Nanavati, J.
+1.  The two respondents were convicted under section 302 read with Section 34 IPC for causing death of Shanku. The trial court based their conviction upon the evidence of PWs 1,2,3 and 4. The High court after reappreciating their evidence set aside the conviction and acquitted the respondents.
+2.  The High Court in its judgement has observed that upto a certain point, the prosecution version and the defence version are the same and, therefore, the only question was whether the deceased and PWs 1 and 3 were the aggressors. After taking into consideration the fact that all the eye witnesses were close relatives of the deceased and that they had not explained the injury on accused No.1, the High court came to the conclusion that it was not proved by the prosecution that the respondents were the aggressors. The High Court further observed that out of the two versions, the version of the defence was more probable. Thus accepting the defence versions, the High Court allowed the appeal and acquitted the respondents.
+3.  After scrutinising the evidence, we do not find that the view taken by the High Court is unreasonable and calls for any interference by this court. However, we would like to say that the observation made by the High Court that even if the prosecution evidence was believed, the accused could have been convicted only under Section 323 IPC and not under Section 302, does not appear to be correct.
+Subject to this observation, this appeal is dismissed.
+Appeal dismissed

Object_casedocs/C1026.txt

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+Virender Prasad Singh v Rajesh Bhardwaj & Ors.
+Supreme Court of India
+
+16 August 2010
+CRIMINAL APPEAL NO. 1526 OF 2010
+(Arising out of SLP (Crl.) 4979 of 2010)
+The Judgment was delivered by : Hon'ble Justice V. S. Sirpurkar
+Leave granted.
+1. An extremely unusual order passed by the High Court has fallen for consideration in this appeal which has been filed on behalf of the appellant/complainant Virender Prasad Singh. The said order was passed on the basis of a petition filed by the respondent No. 1/accused Rajesh Bhardwaj who is facing the charges of very serious offences like provided under Sections 302, 201 and 120 B of the Indian Penal Code (hereinafter referred to as "IPC" for short). By the impugned order, the learned Judge of the High Court has issued certain directions, whereby he has directed the re-examination of the completed investigation by an officer of the rank of Director General of Police (DGP). An extremely unusual course has been taken, whereby the counsel for the respondent No. 1/accused, who had filed the petition u/s. 482 before the High Court, was asked to give a proposal of three names of the police officers of the DGP rank for examining the records of the completed investigation, wherein even the charge sheet was already filed. Similar choice seems to have been given even to the counsel for the appellant/informant to suggest some names. The appellant/informant  did not choose to give any name, with the result that the High Court went on to select one Mr. Manoj Nath, an IPS of 1973 Batch for assistance in the matter. The High Court observed:-
+"This Court requests Mr. Manoj Nath to examine all the records of the case in detail and submit his report to this Court preferably within a period of one month with his clear opinion as to (i) whether investigation of the case is complete from all angles and case is fit to be tried on the basis of materials and report placed on record by the Investigating Officer only or (ii) whether there are some loopholes and lacunae in the investigation which necessitates further or fresh investigation of the case and if necessary by a more experienced and specialized agency, and/or (iii) what further steps, if any, are required to be taken in the case in the ends of justice, so that the guilty may not escape and the innocent may not suffer due to laches on the part of officers of the State. For consideration of Mr. Nath, parties are directed to make available the documents and materials which they have placed on record in the form of a properly indexed paper book within two weeks. This Court expects from Mr. Nath that he will not get swayed away by any opinion of any officer or agency which may be available on record and shall completely ignore the pleadings of the parties. He will examine the documents and evidence of the witnesses available on record and form his independent opinion in the matter. If necessary, under the authority of this Court, he may requisition any other documents and material connected with the case, in original or in the form of its carbon copy, from any other source or authority and upon his requisition, the same shall be made available to him by all concerned, default of which shall be treated as contempt of this Court."
+In the last paragraph of its order, the High Court held:-
+"Till 21st June, 2010, the Court concerned shall not take any further steps in the proceeding arising out of Arrah Rail GRP Case No. 73 of 2007."
+2. The concerned criminal case was initiated by a First Information Report registered on 6.12.2007. It is an admitted position that the investigation had been completed and the police was going to submit the charge sheet dated 18.6.2009, but before that, the mother of the respondent No. 1/accused filed Crl. WJC No. 394 of 2009 before the High Court. In this petition, the prayer was for re-investigation of the matter by another agency. Eventually, the mother of the respondent No. 1/accused died and the respondent No. 1/accused was substituted for her, and it is only on that basis that the order has been passed.
+3. The First Information Report refers to the incident which took place on 30.11.2007, according to which at 10 p.m. on that day, the accused went to the house of the deceased Sonu, the daughter of the appellant/complainant and left with the deceased on his motorcycle in presence of the witnesses. Since the deceased did not return home, the family members started searching for both. It has come on record that subsequently at about 12.30 a.m., the deceased Sonu had talked to her mother's sister Dr. Anita and informed her that she was with the accused and would come back after getting married with him. On the very next day i.e. on 1.12.2007, at 7.15 a.m., the family members of the deceased were informed by the Railway Police that the dead body of the girl is lying on the side of the Railway track at Karisath Railway Station and her Mobile set bearing No. 9304915589 was also lying there. The complainant's brother Dr. Sanjeev reached the Railway Station and identified the body of the deceased. The deceased had injuries on her head and a portion of her leg was cut. Inquest Panchnama was executed by the Railway Police and the dead body was sent for postmortem. At this time, the complainant/father of the deceased was out of station. After he returned home, he was informed about the deceased having been taken by the respondent No. 1/accused at night on 30.11.2007. On 6.12.2007, a written complaint was filed. It was disclosed in the said complaint that the deceased was in love with Rajesh Bhardwaj,  and wanted to get married with him and was persuading him for the last six months for marriage; However, the accused wanted to get rid of her, as he was having an affair with some other girl and it was due to this reason that the accused committed the murder of the deceased and threw her dead body near the Railway track at Karisath Railway Station, with the intention to create a false impression that the deceased had died in an accident.
+4. The Railway Police registered the case as GRP Case No. 73 of 2007 for offences punishable under Sections 364, 302, 201 and 120B IPC. An application for orders u/s. 438 of the Criminal Procedure Code (Cr.P.C.) was moved by the respondent No. 1/accused before the Sessions Court, Arrah, which was dismissed by the Court vide order dated 18.3.2008. Needless to mention that the respondent No. 1/accused was not in the custody of the police till then. He has not been arrested even till date. Be that as it may, on finding that the accused was absconding, a proclamation u/s. 82 Cr.P.C. was issued on 20.3.2008 by the Judicial Magistrate. It was also pasted on the residence of the respondent No. 1/accused on 27.3.2008. The respondent No. 1/accused, after about four months i.e. on 1.7.2008, moved a petition before the High Court for the same relief under Section 438, which was registered as Criminal Misc. No. 33158 of 2008. That was dismissed by the High Court vide order dated 1.7.2008. The respondent No. 1/accused did not stop there and moved to this Court by way of a Special Leave Petition (Crl.) No. 5140 of 2008. It came before this Court on 28.7.2008 and this Court dismissed the same. However, it was observed that:-
+"If the petitioner surrender before the concerned Court and move for bail, the Court would do well to dispose of the application on the day it is presented."
+Needless to mention that the respondent No. 1/accused never surrendered. On 6.4.2009, one more petition came to be filed before the High Court being Cr. WJC No. 352 of 2008, wherein the High Court was pleased to direct the Magistrate to dispose of the objection petition filed by the complainant after hearing both the parties and it was directed that till then the issuance of process of attachment u/s. 83 Cr.P.C. would remain stayed. Very strangely, in this order, the High Court observed:-
+"the parents of the accused, would endeavour and do all within their prowess to prevail upon and persuade, their son Rajesh Bhardwaj to surrender before the court of law as his anticipatory bail has been rejected up to the Hon'ble Apex Court."
+5. On 15.5.2009, another petition being Crl. WJC No. 394 of 2009 came to be filed before the High Court by the mother of the accused. On that date, the investigation was in progress, but the final report had not been submitted by the police. It was expressed in this petition that the investigation was being influenced from the complainant's side and there was a prayer for direction to the State Government to get the case investigated by an independent investigating agency such as Central Bureau of Investigation. On 18.6.2009, police came to the conclusion that the offences alleged against the accused were committed by him and, therefore, the charge sheet came to be filed for the offences punishable under Sections 302, 201 and 120B IPC.
+6. Needless to mention that the respondent No. 1/accused was still not arrested nor did he ever bother to appear before the Magistrate.
+7. On 25.6.2009, after the charge sheet was filed, the father of the accused moved an application before the learned Judicial Magistrate, Arrah, saying that he did not have faith in the said Court and wanted to move a petition for transfer of this case before the District Judge, Arrah, and, therefore, the proceedings of the case be stayed. All this was probably done as the Magistrate had already initiated the proceedings u/ss. 82 and 83 Cr.P.C., finding that the accused was absconding. The Magistrate took the view that the father of the accused had no locus standi to file the said application and also came to the conclusion that there appeared to be good reasons for proceeding against the accused. The Magistrate, therefore, took cognizance of the offences. Then again, for some inexplicable reasons, nothing happened for five months and again on 10.11.2009, an application was moved before the Sessions Judge, Bhojpur, Arrah for an order u/s. 438 Cr.P.C. for anticipatory bail. The learned Sessions Judge noticed that the respondent No. 1/accused was already asked by this Court to surrender before the court below and move the bail application. It was also noted that the respondent No. 1/accused thereafter never bothered to appear though more than one year's time had elapsed. On that reasoning, the application was dismissed. Undaunted by this dismissal, the respondent No. 1/accused moved another application being Crl. Misc. Application No. 41823 of 2009 before the High Court on 21.12.2009, i.e. after more than one month of the dismissal of the earlier bail application.
+8. It was contended before the High Court that the charge sheet was filed only for the offences punishable u/s. 306 IPC and not under Sections 302, 201 and 120 B IPC. A very novel statement was made that his father's kidney had failed and that the accused was going to donate the kidney and he should be granted provisional anticipatory bail. What flabbergasts us is that on this broad plea, the High Court granted eight months' provisional anticipatory bail to the respondent No. 1/accused. Very strangely, all this was on the backdrop of the rejection of all the applications made by the accused u/s. 438 Cr.P.C. before all the Courts including this Court. Again, to say that we are surprised by this order, would be an under-statement. We also did not understand as to why eight months' time was required by the accused and granted by the High Court for donating the kidney. The respondent No. 1/accused again moved an application on 13.1.2010, stating that there was a typing error in the order dated 21.12.2009 passed by the High Court where he was wrongly described as Rakesh Bhardwaj instead of Rajesh Bhardwaj. It was also submitted that the charge sheet was filed under Sections 302, 201 and 120 B IPC and not u/s. 306 IPC as was represented to the High Court. The matter then pended for another four months and came for hearing only on 4.5.2010. However, by that time, Dr. Vijay Laxmi, the mother of the respondent No. 1/accused had already expired. After her death, the respondent No. 1/accused was substituted in her place. It was during the course of arguments on Misc. Application No. 41823 of 2009 that the subject of the investigation not being properly done, cropped up, and it was urged that the matter should be re-investigated, though it was informed to the Court that the charge sheet was already filed about eight months prior to this date and the matter was also committed to the Court of Sessions for trial. The High Court ultimately passed the impugned order. The case was then fixed for hearing before the High Court on 21.6.2010 as the first case in the list. However, the trial has been stayed and the High Court has gone to the extent of selecting a new investigating officer.
+9. Shri U.U. Lalit, learned Senior Counsel appearing on behalf of the appellant/complainant pointed out that this case is nothing, but travesty of criminal justice and it amounts to total abuse of the process of law. The learned Senior Counsel pointed out that though an offence punishable u/s. 302 was registered as back as on 6.12.2007, still even after two and half years, the respondent No. 1/accused has not been arrested. The learned Senior Counsel pointed out that even now, the period of eight months which would ordinarily have ended in August, is extended by the High Court by one month. The learned Senior Counsel pointed out that there was no justification, whatsoever, to find out any fault in the investigation and indeed the order of the High Court is wholly silent on the aspect of necessity of transferring the investigation or to do a de novo investigation. According to the learned Senior Counsel, the reasons, if any given in the order of the High Court, are wholly irrelevant. The learned Senior Counsel suggested that very unusual and disturbing orders have been passed by the High Court in this case, such as granting the provisional bail for eight months on the spacious ground that the accused had to donate his kidney to his father. According to the learned Senior Counsel, the sole objective on the part of the accused has been to hoodwink the process of law to avoid his arrest.
+10. As against this, Shri P.S. Mishra and Shri A. Sharan, learned Senior Counsel appearing on behalf of the respondents supported the order of the High Court and contended that the whole investigation was bad and tainted in this case, since the investigating officers were influenced by the informant who was a senior officer in Railways, as also by order of a Minister in the Cabinet of Bihar Government. The learned Senior Counsel appearing on behalf of the respondents stated that there was nothing wrong in ordering the investigation by other agency even after the charge sheet was filed and for this proposition, the learned Senior Counsel heavily relied on the decision in Rubabbuddin Sheikh v. State of Gujarat & Ors.  2010 Indlaw SC 7].
+11. It is on the backdrop of these rival contentions that it has to be seen that whether the impugned order is justified or not.
+12. The basic contention of Shri Lalit, learned Senior Counsel appearing on behalf of the appellant is that there is a total absence of reasons in the impugned order of the High Court whereby the High Court has directed the change of investigating agency. The learned Senior Counsel pointed out that nothing has been shown either from the charge sheet which is already filed against the accused or from any other circumstance which justified the change of the investigating agency.
+13. A glance at the impugned order suggests that the criticism is quite justified. The Learned Single Judge referred to the report of the Superintendent of Police dated 27.3.2008 wherein it was allegedly found that the investigation was not properly done and it required to be further investigated by the investigating officer from the angles reported in the supervision report. A letter dated 29.4.2008 by the IG of Police to the Additional DG is also referred to wherein it was suggested that the father of the deceased had raised objections to the supervision report of the SP, Railways. Lastly, the Learned Judge has referred to the supervision report of the Dy. SP,CID dated 04.06.2008 wherein it was allegedly mentioned that the investigation was lacking on some counts and this was probably on account of the fact that the investigation was influenced by the father-in-law of the informant. The Learned Judge has also referred to the further argument that there could have been no motive on the part of the accused to murder the girl who was in love with him. The circumstance is also referred to that father of the accused who was a Senior Advocate practicing in the same Court had also consented to the said marriage between the accused and the deceased. The Learned Judge has also taken stock of the argument that the girl herself had written a letter expressing that she apprehended danger from her family members, meaning the family members of the informant. We must, however, express that the Learned Judge has not given any findings on these arguments. The Learned Judge has not referred to the arguments on behalf of the informant and has expressed that there was a counter affidavit on behalf of the informant.
+14. A very strange course thereafter seems to have been taken by the Court . The Court observed:-
+"this Court considers it appropriate to take assistance by getting the matter examined by a senior police official of the rank of DGP to put the controversy, as to whether proper investigation has been done in the case or not, at rest. Therefore, this Court suggested to each of the Learned Counsel for the parties to propose three names of DGP rank officers of the State for this Court to extend request to anyone of them to assist this Court by examining all the documents and records connected with the case and submit his view to this Court for consideration."
+We are extremely surprised by this course undertaken. Firstly, we don't know on what basis would the parties have suggested the names of the police officers of the DGP rank. Secondly, we also don't understand as to in what manner would the opinion expressed by any such officer have been relevant in the decision as to whether the investigation was proper or not. It was the task of the Court and it was the Court who would have decided the question of the fairness of the investigation. The High Court proceeded, though this course was not acceptable to the complainant's party, and considered the arguments on behalf of the complainant. Unfortunately, we don't see any findings recorded or any active consideration of the questions raised by the informant/ complainant. It was suggested by the appellant/complainant that there was another supervision report of the SP dated 30.4.2009 which supported the filing of the charge sheet and it was in pursuance of that report that the charge sheet came to be filed. The complainant had also urged that the so-called earlier supervision report dated 27.3.2008 was a concocted document. The learned Senior Counsel appearing on behalf of the appellant/complainant challenged the genuineness of the document and contended that it was fabricated. The complainant went to the extent of saying that the father of the accused who was a Senior Advocate of the Court was trying to influence the investigation and in fact even the report of the Forensic Science Laboratory regarding the handwriting and the genuineness of the letter of the deceased was not genuine. Ultimately, it was urged before the High Court that at the stage, particularly, after the charge sheet was already filed, the High Court would not be justified in interfering under Section 482, Cr.P.C. The only reason that we find for the unusual course that the High Court has taken is that there was no supervision report at the instance of the DIG of Police or Inspector General, Railway or DGP.  The High Court has recorded a finding:-
+"thus, it is clear that the case has been supervised till now only by the officers up to the rank of SP and none else. Even the said report of the CID is also by an officer below the rank of SP (CID)."
+15. Thus, the High Court went only on the consideration that there was no supervision report of a particular level of DIG, IG or DGP of Police.
+16. It is only on the basis of that reason that the High Court wanted to get the assistance of DGP level police officer to advise it on the correctness or otherwise of the investigation. The High Court went on to record:-
+"however, at this stage, in view of the submissions advanced by Mr. Madhup on behalf of the informant, this Court is all the more convinced that, to put the controversy at rest once for all, matter should be examined by any officer of the rank of DGP so that this Court may get assistance from an experienced senior police officer of the highest rank to come to some conclusion with regard to merits of this application, if at all it is required to be done at the final stage of hearing."
+17. It is then that the High Court went on to select one Manoj Nath and gave him the task of forming his opinion in respect of:-
+" (i) whether investigation of the case is complete from all angles and the case is to be tried on the basis of materials and report placed on record by the investigating officer only or;
+(ii) whether there are some loopholes and lacunae in the investigation which necessitates further or fresh investigation of the case and if necessary by a more experienced and specialized agency, and/or;
+(iii) what further steps, if any, are required to be taken in the case in the ends of justice, so that the guilty may not escape and the innocent may not suffer due to laches on the part of the officers of the State."
+We really fail to understand as to under what provision the High Court acted, more particularly, when the charge sheet has already been filed. We are not on the question of the High Court seeking opinion of the DGP. In our opinion, such a course was not necessary unless the High Court had examined the charge sheet which was filed and recorded its findings that the investigation was not properly conducted or it required further investigation u/s. 173 (8), Cr.P.C. The High Court has not even looked into the charge sheet nor has it examined the same.
+It is also extremely surprising that the respondent No. 1/accused should have moved the High Court instead of moving the Sessions Judge before whom the matter was pending after all cognizance was taken by the Magistrate on the basis of the charge sheet. Thereafter he also proceeded to commit the matter for trial by the Sessions Judge and the matter was pending before the Sessions Judge. Under such circumstance, we completely fail to understand the propriety of the accused moving the High Court, firstly through his mother and secondly himself, more particularly, under Section 482, Cr.P.C. instead of going before Sessions Judge where the prosecution was pending and claiming further investigation u/s. 173(8) Cr.P.C.
+The High Court has not even considered the question of its own jurisdiction in the matter by conveniently observing that it is a matter which is to be considered at the stage of final hearing of the case. Therefore, it is clear that the High Court has not applied its mind also and had pushed the mater up to 21.6.2010 for receiving the opinion from the DGP. In our opinion, all this was not permissible nor was it warranted.
+18. The High Court should have seen through the incessant efforts on the part of the respondent No. 1/accused to stall the proceedings one way or the other and to avoid arrest. It was way back in 2008 that the anticipatory bail application was rejected by this Court and yet the accused has remained outside without being arrested. Again the investigation against him is complete, the charge sheet has been filed for offence committed by him, and still he has managed to remain out. In fact, the lack of bona fides on the part of the accused should have put the High Court on guard. A S. 482 application on the plea that the investigation is not proper at the instance of the accused who does not choose to even appear before the Sessions Judge before whom the matter is pending, should immediately have put the High Court on guard before entertaining the petition which has no bona fides whatsoever. Be that as it may, we desist from saying anything about the quality of investigation, necessity of further investigation or the necessity of the further investigation at the hands of some other agency, particularly, in view of the fact that the charge sheet has already been filed in this matter and at least nothing was shown before us or before the High Court suggesting that there was a necessity of any further investigation, additional investigation or investigation by some other agency. Merely, because there appeared to be no supervision of the DIG level or IG level officer, the High court could not have simply called for the opinion of DGP without recording any finding on any justification. We do not see any justification whatsoever nor was anything shown to us. We will, therefore, not go into that question, but the stance of the High Court in issuing direction not to take any further step in the proceedings arising out of Arrah Rail G.R.P. Case No. 73/2007 till 21.6.2010 is wholly unwarranted.
+19. Heavy reliance was placed on Rubabbuddin Sheikh v. State of Gujarat & Ors.  2010 Indlaw SC 7]. However, we do not find any factual similarity. That was a case where the extreme step was taken by this Court, particularly, in view of the fact that the police officers who were investigating officers, themselves came under the cloud because of the allegations against them. Such is not the position here. This is apart from the fact that factually we do not see any reason why the extreme step is required to be taken in this case even after the charge sheet has been filed.
+20. This Court had taken that unusual course in Rubabbuddin Sheikh's case 2010 Indlaw SC 7 (cited supra), in the words of the Court:-
+"'in the facts and circumstances of the present case and to do complete justice in the matter and to instil confidence in the public mind."
+21. Before this course was undertaken, the Court had found out factual discrepancies apparent on the face in the eight Action Taken Reports and the charge sheet. It was also noted that the crime was committed by the police personnel themselves while investigation conducted was not at all satisfactory. We do not find any such circumstance in the present case. We may also refer to the observations made in another ruling reported as Mithabhai Pashabhai Patel & Anr. V. State of Gujarat  2009 Indlaw SC 743]. In paragraph 13 of the said decision, this Court has observed:-
+"it is beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior Court in exercise of its Constitutional power, namely, u/arts. 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction."
+22. The Court further referred a decision in Ramachandran v. R. Udhayakumar  2008 Indlaw SC 816] and observed therein:-
+"at this juncture it would be necessary to take note of S. 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-s. (2) of S. 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation."
+23. The plea raised by the accused herein was not for further investigation u/s. 173 (8) but for re-investigation by some other agency. In the circumstances of this case, the accused had not justified his plea at all for re-investigation or fresh investigation by another agency. On its own, the High Court did not go into that exercise to decide as to whether the investigation was required to be done by any other agency. It required help of DGP level officer and his opinion to decide whether the earlier investigation was done properly or not. We are afraid that was not the task. To decide so was the task of the Court alone and no opinion could have been sought for, particularly, in the circumstances of this case. Nothing seems to have been established which would justify calling for such opinion. However, we are not going into that question as we have already stated earlier. Once the charge sheet was filed, ordinarily it could only be the power of the Court to decide upon its correctness or otherwise.
+24. We are not at all impressed by the S. 482 application firstly filed by the mother of the respondent No. 1/accused and then by the respondent No. 1/accused himself. We do not see any reason why the High Court should have entertained such application at all, particularly, in view of the complete lack of bona fides on the part of the respondent No. 1/accused. That application was, therefore, liable to be dismissed straightaway. Since technically the matter is still pending before the High Court, we only issue a direction to the High Court to dismiss the same. The impugned order of the High Court is set aside and, therefore, this appeal succeeds. The Sessions Judge before whom the matter is pending shall proceed with it in accordance with law.

Object_casedocs/C1027.txt

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+State of Gujarat v Natvarlal Motilal Chavda
+Supreme Court of India
+
+12 August 2014
+S.L.P. (Civil) No(s). 27982/2013 (Arising out of impugned final judgment and order Dt. 18/12/2012 in SC.A. 2210/2005 passed by the Gujarat High Court)
+(Non-Reportable)
+The Judgment was delivered by : A. K. Sikri, J.
+1. The present special leave petition is filed against the final judgment and order dated 18.12.2012 delivered by the Division Bench of High Court of Gujarat in Special Civil Application No. 2210 of 2005. Vide the impugned judgment, the Court has partly allowed the writ petition and has granted certain consequential benefits to respondent no. 1 interpreting the provisions of Indian Administrative Service (Appointment by Promotion) Regulations, 1955. At the same time some strings, in the nature of certain conditions, are attached as well.
+2. Respondent no. 1 was directly recruited as Mamlatdar in 1977 and then promoted as Deputy Collector in 1983 in Class-I cadre of Gujarat Administrative Service(GAS). Thereafter, he was promoted as Additional Collector in 1995 and transferred and posted as Secretary, Slums Clearance Board on 20.02.2003. On 22.09.2003, the State Government sent a proposal to the Union Public Service Commission(UPSC) and the Department of Personnel and Training, Government of India along with the list of prospective candidates for selection and appointment in IAS cadre and that list included at serial no. 6 the name of respondent no. 1. By notification dated 15.06.2004 of the Government of India, through Department of Personnel and Training, 10 members of the State Civil Service of Gujarat were appointed in the Indian Administrative service against the vacancies of the year 2003, on probation with immediate effect, until further orders, under Rule 8 of the Indian Administrate Service (Recruitment) Rules, 1954 read with Sub-Regulation (1) of Regulation 9 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and Rule 3 of the Indian Administrative Service(Probation) Rules, 1954. And that list omitted the name of the respondent no. 1, even though by notification of the same date, i.e. 15.06.2004, the select list of 11 State Civil Service Officers, including respondent no. 1, was notified. That select list was approved by the UPSC and prepared by the Selection Committee in its meeting held on 18.11.2003.
+3. The position which emerges from the aforesaid is that the name of respondent no. 1 herein was duly forwarded by the State Government for induction in IAS cadre. The UPSC considered the names and selected 11 persons from the State Civil Service Officers. In this list, issued vide notification dated 15.06.2004, name of respondent no. 1 was included meaning thereby UPSC found him fit for appointment in IAS cadre. However, in another notification of the even date, name of the respondent was excluded from appointment. The reason given was that the State Government had informed the UPSC vide its letter dated 18.12.2003 that it had decided to withdraw the integrity certificate in respect of the respondent by another letter dated 27.05.2004, the state Government had also informed the UPSC that a charge-sheet was issued to the respondent. On that basis, UPSC had sent letter dated 11.6.2004 to the Central Government pointing out that it had approved the recommendations of the Selection Committee Meeting held on 18.11.2003, with the modification that inclusion of the name of respondent no. 1 in the select list would be provisional and subject to clearance of the disciplinary proceedings pending against him and grant of integrity certificate by the State Government.
+4. Respondent no. 1 challenged his exclusion by approaching the Central Administrative Tribunal in the form of OA filed u/s. 19 of the Administrative Tribunal Act. Taking note of the aforesaid developments, the Tribunal did not interfere with the decision of the Government and the only direction given was to expeditiously bring to an end two inquiry proceedings against him.
+5. Feeling dissatisfied with the aforesaid outcome, respondent no. 1 challenged the order of the Tribunal by means of writ petitions filed in the High Court of Gujarat u/arts. 226 and 227 of the Constitution of India. His primary submission was that on 18.11.2003 when his candidature was considered, there was nothing against him and no charge-sheet was issued either. Therefore, his name should not have been withheld merely because some charge-sheet was issued much after the said date. He relied upon the judgment of this Court in Union of India Vs. K.V. Jankiraman 1991(4) SCC 109 1991 Indlaw SC 1034. His further submission was that once he was found fit for promotion by the Departmental Promotion Committee constituted by the UPSC and the recommendations of the Selection Committee were accepted by the UPSC and no inquiry was pending as on that date, he was entitled for promotion. And for this proposition, he relied on the judgment of this Court in Union of India Vs. Sangram Keshari Nayak 2007(6) SCC 7042007 Indlaw SC 431. He also referred to another judgment of this Court in Vijay Singh vs. State of UP 2012(5) SCC 242 2012 Indlaw SCO 1178 in support of his submission that even the disciplinary authority cannot legally impose punishment of withholding integrity certificate unless such punishment is provided in the relevant rules.
+6. The case of the petitioner herein, before the High Court, was that since respondent no. 1 had come under the zone of consideration for promotion to higher grade in the year 2003, his name was included in the proposal and sent to the UPSC. However, after the meeting of the Selection Committee which was held on 18.11.2003, its recommendation was received by the State Government from the UPSC. It had come to the notice of the State Government that certain preliminary inquiries were going on/pending against respondent no. 1 in the Tribal Development Department and on careful perusal of the files and papers from that Department, the Government had taken a conscious decision to withhold the integrity certificate and initiated detailed inquiry into the allegations. An IAS officer was entrusted with the task and on the basis of preliminary inquiry conducted by him, the State Government had decided to hold the regular departmental inquiry for which charge-sheet dated 25.5.2004 was served upon the respondent. It was thus pleaded that the respondent was not entitled to promotion at that stage in view of the pendency of the inquiry.
+7. After considering the aforesaid arguments and dealing with them exhaustively, the High Court has allowed the petition of respondent no. 1 in part directing his promotion. The High Court has taken into consideration the relevant Rules & Regulations, namely, Indian Administrative Service(Recruitment) Rules, 1954 into consideration and Indian Administrative Service(Appointment by Promotion) Regulations, 1955 into consideration and in particular, Regulations (3), (5), (6), (7), (9) & (10) of Regulations, 1955. After careful analysis thereof, in juxtaposition with some of the Government of India's decisions on these regulations, it is pointed out that appointment by promotion from State Civil Service to Indian Administrative Service is by selection by a Committee consisting of the Chairman of the UPSC, the Chief Secretary of the State Government, the senior-most officer of the IAS cadre other than the Chief Secretary, the Head of the General Administration/Personnel/Revenue Department of the State Government not below the rank of Secretary to the State Government and two nominees of GOI not below the rank of Joint Secretary. The date and venue of the meeting of the Committee to make the selection is to be determined by the UPSC.
+According to Government of India's decision under Regulation 3, the Chief Secretary to the State Government, who is the sponsoring authority in respect of all eligible officers whose cases are placed before the Selection Committee for consideration, is required to record an integrity certificate, with reference to the entries in annual confidential reports of the officer concerned. Even after such certificate being recorded, the Selection Committee is required to consider the question of suitability of the officers for selection with reference to their integrity and specifically record in their proceedings that they were satisfied from the remarks in the confidential reports of the officers, selected by them for inclusion in the select list, that there was nothing against their integrity. Thereafter, a list of such members of the State Civil Service as are held by the Selection Committee to be suitable for promotion has to be prepared. The Selection Committee has to classify the eligible officers as "outstanding", "very good", "good" and "unfit", as the case may be, on an overall relative assessment of their service records, maintaining inter se seniority of the officers in each class. The name of any officer included in such list has to be treated as provisional, if the State Government withholds the integrity certificate in respect of such officer, or any proceedings, departmental or criminal, are pending against him, or anything adverse, which renders him unsuitable for appointment to the service, has come to the notice of the State Government. That provision for making or treating any name as provisional is subject to Explanations-I and II of Regulation 5(5), according to which the proceedings can be treated as pending only if a charge-sheet has actually been issued to the officer or filed in a court; and the adverse thing which came to the notice of the State Government rendering him unsuitable can be treated to have come to the notice of the State Government only if the details of the same have been communicated to the Central Government and the Central Government is satisfied that the details furnished by the State Government have a bearing on the suitability of the officer and investigation thereof is essential.
+After the list is so prepared, it has to be forwarded to the UPSC by the State Government alongwith the records of all members of the State Civil Service included in the list, the records of all members of the State Civil Service who are proposed to be superseded by virtue of the list and the observations of the State Government on the recommendations of the Committee. A copy of the select list is also required to be forwarded to the Central Government and the Central Government is required to send their observations on the recommendations of the Committee to the UPSC. Thereafter, under Regulation 7, the UPSC has to consider the select list alongwith the documents received from the State Government and the observations of the Central Government and, unless it considers any changes necessary, approve the list. If the Commission considers it necessary to make any changes in the list, it has to inform the State Government of the changes proposed and after taking into account the comments, if any, of the State Government and the Central Government, the UPSC may approve the list finally with such modifications, if any, as may, in its opinion, be just and proper. The list so finally approved by the Commission would be the "Select List" of the members of the State Civil Service. If an officer whose name is included in the select list is, after such inclusion, issued a charge-sheet or a charge- sheet is filed against him in a court of law, his name in the select list shall be deemed to be provisional. Thereafter, under Regulation 9(1), appointment of a member of the State Civil Service has to be made by the Central Government in the order in which the names of the members of the State Civil Service appeared in the select list. In case of an officer whose name has been included or deemed to be included in the select list provisionally, under the proviso to sub-regulation (5) of Regulation 5 or under the proviso to sub-regulation (3) of Regulation 7, as the case may be, his appointment has to be made within 60 days after the name is made forwarded by the Commission in terms of the first proviso to sub-regulation (4) of Regulation 7. Thus, there are two stages at which inclusion of name in the list of the recommended officers could be made provisional; the first stage is before the list is forwarded to the UPSC by the State Government, subject to fulfillment of the conditions contained in the Explanations to Regulation 5(5). And the second stage for making a name provisional under Regulation 7(3) is when the Commission finally approves the list after consideration of the list prepared by the Selection Committee, the documents received from the State Government and the observations of the Central Government. Such latter provisionalisation of the name included in the Select List is subject to the condition that the officer concerned is issued with the charge-sheet or a charge- sheet is filed against him in a court after his name being included in the Select List finally approved by the UPSC.
+8. Even after inclusion of an officer in the final Select List, the Central Government may not appoint an officer if it is of the opinion that it is necessary or expedient so to do in the public interest. However, such plenary powers conferred upon the Central Government by Regulation 10, with an opening non-obstante clause, are subject to the proviso that no such decision shall be taken by the Central Government without consulting the UPSC. It is clear from the language in which Regulation 10 is couched that the special power of the Central Government to deny appointment to any person, whose name appears in the select list is conditional and could be exercised only if an opinion is formed that it is necessary or expedient so to do in public interest and even after forming such opinion, the final decision could be taken only after consulting the UPSC.
+9. Having regard to the aforesaid legal position emerging from the reading of the relevant Regulations, the High Court was of the opinion that promotion of respondent no. 1 should not be withheld merely because of the reason that much after the meeting of the Selection Committee, a charge-sheet was served upon him. Position in this respect is summed up by the Court in the following manner:-
+"As seen above, admittedly, the integrity certificate in respect of the petitioner was not "withheld", but it was sought to be withdrawn after one month of the meeting of the Selection Committee on 18.11.2003, and the charge-sheet having been issued to the petitioner as late as on 25.5.2004, inclusion of the petitioner in the list prepared by the Committee could not legally be treated as provisional under the proviso to Regulation 5(5). Thus, the intimation by the State Government for withdrawing the integrity certificate could not legally result, at the first stage, into treatment or inclusion of the petitioner's name in the list as provisional. The second stage for deeming inclusion of the petitioner's name to be provisional came under Regulation 7(3) only after 11.6.2004 when the UPSC approved recommendation of the Selection Committee with the modification that inclusion of the petitioner in the select list shall be provisional. Assuming that all the formalities and procedure prescribed under Regulations 6, 6-A and 7(2) were duly complied with by the UPSC, the name of the petitioner in the select list could be deemed to be provisional only if, after inclusion of his name in the select list, a charge- sheet were issued. That being not the case and charge-sheet having already been issued on 25.5.2004 prior to approval and finalization of the select list on 11.6.2004, the provisions of Regulation 7(3) could not be pressed into service to deny to the petitioner appointment on the promotional post under the mandatory provisions of Regulation 9(1). It is not the case of the respondent that the Central Government had exercised its powers under Regulation 10 and the mandatory provisions for consulting the UPSC were complied with. In that view of the matter, it would clearly appear that the State Government had made an imperfect and preemptive attempt at provisionalising the name of the petitioner, after his selection by the Selection Committee consisting, inter alia, of three of very senior civil servants, including the Chief Secretary, and examination by the Committee in particular of the aspect of integrity of the petitioner as required by GOI's decision under Regulation 3. The notifications dated 15.6.2004 notifying the select list and making appointments and the subsequent corrigendum dated 16/19.7.2004 also strengthen the inference that initial withdrawal of the integrity certificate, issuance of charge-sheet dated 25.5.2004 and intimation thereof on 27.5.2004 were aimed at excluding the petitioner from the list of appointees, even as it is not established that the charges leveled against the petitioner had a bearing on the suitability of the petitioner for promotion and the Central Government was satisfied that investigation into the charges was essential. In fact, the State Government has sought to prop up its objections to promotion of the petitioner by confusing "withholding" of the integrity certificate with its "withdrawal", on the basis of something adverse against him coming to notice of the Government after recommendation of his name by the Selection Committee; and compliance with Explanation-II to proviso to Regulation 5(5) is not even pleaded. In any case, the notification dated 15.6.2004 under Regulation 7(3) notifying that the petitioner was included in the final select list approved by the UPSC could not have legally been made provisional under Regulation 7(3) as discussed hereinabove and the conditions contained in Regulation 7(4) could not legally be imposed as was sought to be done by the corrigendum dated 16/19.7.2004. Therefore, the conclusion arrived at in the impugned order of CAT that "...the latter developments could have been taken into consideration for making his name provisional and there was an administrative error in including the name of the applicant in the select list without showing the word provisional" was superficial, erroneous and illegal and hence required to be set aside."
+10. It is in the aforesaid circumstances that the High Court took the view that the decision of the petitioner herein withdrawing the integrity certificate and that of the UPSC which was accepted by the Union of India in making the promotion of respondent no. 1 herein provisional was bad in law and not permissible under the extant regulations.
+11. Even while setting aside the decision of the Central Administrative Tribunal, in the writ petition which is filed by respondent no. 1 against the penalty imposed pursuant to the departmental proceedings held against him, the High Court has clearly stated that respondent no. 1 herein would claim such benefits as consequential relief only in case he is exonerated fully in the departmental inquiry.
+12. Thus, the effect of the aforesaid direction giving him the relief only in case he is exonerated under the departmental inquiry would be that respondent no. 1 would be entitled to promotion, and the consequential benefit in case the penalty imposed against him stands. In view of that, it may not be necessary to entertain this petition in exercise of our jurisdiction u/art. 136 of the Constitution of India. We may record at this stage that respondent no. 1 had filed special leave petition against the aforesaid judgment apportioning the relief portion. Respondent no. 1 wanted to get the benefit of promotion irrespective of the outcome of the writ petition pursuant to the departmental proceedings against him. That SLP has been dismissed by this Court.
+13. However, learned counsel for the petitioner has two apprehensions in mind. In the first instance, it is argued that in the writ petition which is filed by respondent no. 1 challenging the imposition of penalty, the observations made by the High Court in the impugned judgment may not come in the way of the petitioner. It is further argued that, according to the petitioner, the High Court has not dealt with the regulations appropriately and the interpretation given by the regulations is incorrect and the impugned judgment may not be cited in future.
+14. Insofar as first submission is concerned, Mr. Sanjoy Ghose, learned counsel for respondent no. 1 fairly submits (there cannot be any exception thereto even otherwise) that the writ petition which is filed by respondent no. 1 against the departmental proceedings, has to be dealt with by the High Court on its own merits uninfluenced by the observations made in the impugned judgment as the subject matter of the impugned judgment was entirely different.
+15. Insofar as second aspect is concerned, Mr. Sanjoy Ghose, learned counsel again stated that he has no objection if the question of law, that is, the question relating to the interpretation of the regulations, is kept open.
+It is ordered accordingly.
+16. As respondent no. 1 has already retired from service, we request the High Court to decide the writ petition filed by respondent no. 1 as expeditiously as possible preferably within six months.
+17. The special leave petition is disposed of accordingly.
+Petition disposed of

Object_casedocs/C1028.txt

@@ -0,0 +1,28 @@
+Makhanlal Waza & Ors. v State Of Jammu & Kashmir & Ors
+Supreme Court of India
+
+23 February 1971
+Writ Petition No. 108 of 1969
+The Judgment was delivered by : A. N. Grover, J.
+1.  This petition u/art. 32 of the Constitution illustrates how an attempt has been made to circumvent the law declared by this Court in Triloki Nath & Another v. State of Jammu & Kashmir & Others, [1969] 1 S.C.R. 103 1968 Indlaw SC 129 by which the State policy of reserving 50% of the vacancies among the teachers in the employment of the respondent State for the Muslims of Kashmir and out of the remaining 50%, 40% for the Jamvi Hindus and 10% for others including Kashmiri Pandits was struck down as contrary to the Constitutional guarantee under Art. 16.
+2.  The petitioners, who are, 10 in number, are in the service of the Education Department of the State of Jammu & Kashmir. According to the petition, petitioner No. 1 joined service in 1952 as a teacher in the Government High School, Poonch. He had passed the Bachelor of Teaching Examination and was given the grade of Rs. 80-8-200. This grade, which was of a non-gazetted post was later revised sometimes before 1964 to Rs. 150-500. The gazetted post carried a grade of Rs. 300- 600, Petitioner No. 2 entered service of the erstwhile State of Jammu & Kashmir in 1943 as teacher in the Government School, Tregham. He later on passed the examinations of Bachelor of Teaching and the Master of Arts and was selected in July 1968 for teaching in the Higher Secondary School. Petitioners 3 to 10 were trained graduates holding degrees of Bachelor of Education. Petitioners 3,4,6,7,9, and 10 had also passed the Master of Arts examination and with the exception of petitioner No. 10 were selected for teaching in Higher Secondary Schools in July 1968.
+3.  All the teachers and other officers of the Education Department of the State were governed by the Jammu & Kashmir Civil Services (Classification, Control and Appeals) Rule, 1956 which were promulgated on June 14, 1956. Rule 9 relates to first. appointment to a service or class. According to rule 19 in making the appointment to a service or class reservation may be made in favour of any backward class which, in the opinion of the Government, is not adequately represented in the services. Rule 24 dealt with seniority. Rule 25 to the extent it is material reads
+"Promotions :
+(1) All promotions shall be made by the appointing authority.
+(2) Promotions to a service or class or to a selection category or grade in such service or class shall be made on grounds of merit and ability and shall be subject to the passing of any test that Government may prescribe in this behalf, seniority being considered only where the merit and ability are approximately equal.
+(3) All other promotions shall be made in accordance with seniority and subject to any test or special qualifications prescribed by Government unless-
+(a) the promotion of a member has been with- held as a penalty; or
+(b) a member is given special promotion for conspicuous merit and ability."
+4.  Arts. 14 and 16 of the Constitution were made applicable to the, State of Jammu & Kashmir in 1954. Rule 19 is stated to have been abrogated in the year 1958. But in giving promotions to the teachers in the gazetted cadre respondents 1 and 2 adopted the following basis, which will be called the communal policy hereafter :-
+(1) 50% of the vacancies were filled from among the Muslims of the entire State;
+(2) 40% out of the remaining 50% vacancies were filled by Jamvi Hindus (Hindus from the Jammu Province of the State majority of whom are Dogras) and;
+(3) the remaining 10% of the posts were given to others including Kashmiri Pandits.
+5.  This was purported to be done on the ground that Muslims of the entire State and the Hindus of Jammu Province constituted "backward classes" for the purpose of employment.
+6.  In December 1965 Triloki Nath and Shambu Nath the present petitioners 2 and 4 filed a writ petition in this Court. In all 81 respondents were impleaded which included the present respondents Nos. 38 to 107. In that: petition it was alleged that the communal policy of promoting teachers to the gazetted cadre was not disclosed in any order made by the State but had been arrived at on the footing of the recruitment by promotion made to the gazetted post of teachers from time to time. The promotions had been made on the basis of merit and seniority but purely on the ground of religion, caste and place of birth. This Court called for a report from the High Court on the question whether the Muslims of the entire State of Jammu & Kashmir and the Hindus of the Jammu Province constituted backward class in the sense explained in M. R. Balaji & Ors. v. The State of Mysore, [1963] Suppi. I S.C.R. 439 1962 Indlaw SC 272 and also whether they were not adequatly represented in the services of the State. (See Triloki Nath Tiku & Anr. v. State of Jammu & Kashmir & Ors., [1967] 2 S.C.R.265 1966 Indlaw SC 140 After the report was received it was found that the High Court did not record its opinion on the evidence. But this Court proceeded to give its decision on the material before it. This is what was observed in (1969) 1 S.C.R. 1031 by Shah, J.
+"Art. 16 in the first instance by- cl.(2) prohibits discrimination on the ground, inter alia, of religion, race, caste, place of birth residence and permits and exception to be made in the matter of reservation in favour of backward classes of citizens. The expression ward class" is not used as synonymous with "b caste" or "back-ward community". The members of an entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a back ward class but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation the expression "class " means a homogeneous section of the people grouped together because of certain likeness or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. But for the purpose of Art. 16(4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent place of birth or residence cannot be adopted because it would directly offend the Constitution."
+7.  It was pointed out that no formal order making a provision for reservation of appointment to posts in favour of any backward class of citizens had been produced There were a number of government orders by which the promotions had been made according to the communal policy. There was no reference in any of the orders to selection of officers on the basis that they belonged to backward classes. It was held that in effect the communal policy was not of reservation of some posts; it was a a scheme of distribution of all the posts community-wise. Such distribution made in implementation of the so called policy was contrary to the Constitutional guarantee under Art. 16(1) and (2) and was not saved by cl. (4). The promotions granted to respondents 3 to 83 in that petition were declared void, It was left open to the State to devise a scheme consistent with the Constitutional guarantee for reservation of appointments to posts Or Promotions in favour of any backward class of citizens which, in the opinion of the State, was not adequately represented in the services. It is common ground that no such scheme as was envisaged was devised. It has, however, been stated in the present return that certain rules have been promulgated by a notification Nos. R.O. 460 dated August 19, 1969. In the meantime the officers concerned of the Education Department of the State thought of an ingenious device of giving ostensible effect to the decision of this Court. Those teachers who were respondents in the previous writ petition and whose protions became illegal in view of the pronouncement of this Court were ordered to be adjusted in non-gazetted cadre of which the grade was Rs. 150-500. They were "allowed to work against the posts they were holding prior to their reversion" on temporary basis. Numerous copies of the orders which have been annexed to the petition show that this was the common pattern that was followed. A new nomenclature, was evolved for the post of Head Masters. They were called Teachers-in-charge. They were to get the same salary which they were getting when they were in the gazetted cadre of Rs. 300-600. For instance, if A was working as Head Master in the gazetted post and was drawing a salary of Rs. 300/- per month according to. the scale of Rs. 360-600 he was stated to have been adjusted in his own grade and on his own pay i.e.,, in the grade of Rs. 150-500. He was still to get a salary of Rs. 350/- which he would' not have got if he had originally not been promoted to the gazetted cadre. In other words although such a teacher was brought into the non-gazetted cadre from the gazetted grade his emoluments and his posting as Head of an institution were not affected. It is not disputed' that ordinarily he could not have been appointed to that post being far junior to the petitioners according to the seniority list of the non-gazetted cadre to which, originally he and the petitioners belonged. It has been stated somewhat tamely in the return of respondents 1 and 2 that when, these teachers who were affected by the decision of this Court had been promoted to the gazetted cadre not only seniority but merit had also been taken into consideration. But it has not been denied and this fact has been admitted before us in the course of arguments that but for the so called communal policy these teachers would not have been,-promoted to the gazetted cadre even though merit and other factors had entered into their promotion inter-se. As regards the other respondent teachers who did not figure in the earlier petition, they were all promoted to the gazetted cadre prior and subsequent to the previous decision in complete defiance of the law laid down by this, Court. Such a course has been sought to be justified on the tenuous ground that they were not parties to the previous petition and therefore their case.-. would not be governed, by the decision given in that petition. It may be observed immediately that such a position is wholly untenable and misconceived. The judgment which was delivered did not merely declare the promotions granted to the respondents in the petition filed at the previous stage as unconstitutional but also laid down in clear and, unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the Constitutional guarantee of Article 16. The law so declared by this Court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition.
+8.  In para 20 of the petition instances have been given which show that in spite of the judgment of this Court certain teachers who had been promoted to the post of Head Masters are still Head Masters though they are very much below Kashmiri Pandit teachers in the list of seniority. For instance, Mohd. Yusuf Masoodi who was- respondent No. 52 in the previous writ petition had been promoted to the post of Had Master, Nowhatta. Even ,after the judgment he was continuing as Head Master although ,he was placed at No. 243 in the seniority list of 1961. Messrs. Deva Kaul and Dwarika Nath were 68 and 76 respectively in that seniority list were working as _teachers under him in the same school, Masoodi was drawing a salary above Rs. 350/per month whereas the two Kashmiri Pandit teachers were drawing ,only Rs. 300/- though both of them were senior to him and were not in the same grade of Rs. 150-500 to which Masoodi is stated to have been reverted. Similarly those teachers who were given promotions after the appointments on communal basis had been struck down had been promoted following the same rule. In para 22 an instance is given of Ghulam Mohiuddin Wani who had been promoted as Teacher-in-Charge High School Shogapor,. It is stated that his name did not appear in the seniority list whereas Triloki Nath Kaul was much senior to him but was working as a teacher under him although the salary which Kaul was getting was Rs. 250/- per month and the salary which Wani was drawing was only Rs. 210/- per month. In the return respondents 1 and 2 have not contradicted the facts stated in para 20 of the petition but have taken certain pleas of general nature and of legal character. Similarly with regard to para 22 it has been stated inter alia in the return
+"As regards the individual cases referred to in para 22 of the writ petition the averments and submissions made therein are misconceived and unwarranted and misleading".
+9.  Our attention has, however, not been invited to any facts or particulars relating to the aforesaid instances in the return which would throw doubt on the correctness of the instances given in the petition in paras 20 and 22. According to the petitioners the present respondents 3 to 27 were not parties to the previous proceedings but they were promoted to the gazetted grade in an officiating capacity though they were junior to petitioner No. 1. Respondents 38 to 107 were parties to the previous petition and their promotions were expressly quashed by this Court. Respondents 108 to 218 were promoted during the pendency of the writ petition and respondents 219 to 251 were promoted after the decision of this Court in an officiating capacity. It is abundantly clear and this position has not been controverted that all the promotions which were made of the respondents who were not parties to the previous petition were based not purely on merit but were made on account of the communual policy which had been struck down by this Court as unconstitutional. Respondents 38 to 107 who were parties to the previous petition were reverted to the non- gazetted grade but they were still retained in the posts which they were holding when they had been promoted to the gazetted grade although in some cases the nomenclature Was changed from Head Master to Teacher-in-Charge. In the absence of any rules lawfully promulgated for employment of backward classes promotions could be made only in accordance with rule 25 and there can be no manner of doubt that there was absolute non-compliance with the provisions of that rule. The promotions thus de of all the respondent-, teachers were illegal and unconstitutional being violative of Article 16 of the Constitution. They have, therefore, to be set aside. All the promotions made to the higher posts or the higher grade pursuant to the communal policy would have to be revised and reconsidered and appropriate orders must be passed by respondents 1 and 2 with regard to them as also the petitioners in accordance with law. The new rules stated to have been framed have not been shown to us and we wish to express no opinion on their applicability.
+10.  The present petition shall stand allowed in the manner indicated above. The petitioners shall be entitled to their costs in this Court.
+Petition allowed.

Object_casedocs/C1029.txt

@@ -0,0 +1,14 @@
+Munna Kumar v State of Bihar
+Supreme Court of India
+
+3 March 2005
+Cr.A. No. 516 of 2004
+The Order of the Court was as follows:
+1.  The appellant Munna Kumar was found guilty by the Xth Additional Sessions Judge, Patna for the offence punishable under Section 302 read with Section 34 IPC. He challenged his conviction and sentence in the appeal preferred before the High Court of Judicature at Patna. The High Court confirmed the conviction and sentence. The prosecution case is that the appellant Munna Kumar and his friend Dilip Kumar went to the house of the deceased Ashok Kumar on 1-6-1994, at about 2.00 p.m. and took him away from his house on the pretext of playing football.
+2. As Ashok Kumar did not return home in the evening, his father got suspicious and went in search of him. When he reached near the office of Damodar Valley Corporation he saw his son Ashok Kumar in the presence of these appellants. Ashok Kumar was raising alarm and was trying to escape from the appellants. The case of the prosecution is that the appellant fired a shot at deceased Ashok Kumar and he sustained injury on his head. In the injured condition he was taken to Patna Medical College Hospital but his life could not be saved.
+3.  The investigating officer came to know of the incident and he went to the Patna Medical College Hospital and thereafter he visited the place of incident and conducted further investigation. The body of the deceased Ashok Kumar was subject to post-mortem examination and it was found that there was a bullet injury on his head, The Sessions Judge as well as the High Court relied on the evidence of PWs 1 to 3 who were eyewitnesses. The High Court accepted the evidence of these three witnesses and we do not find any infirmity in this and the evidence of these witnesses were rightly accepted by the High Court.
+4.  One significant aspect of this case is that the post-mortem examination produced by the prosecution was neither proved by the examining doctor who prepared it nor any person who had any acquaintance with the handwriting of the doctor was examined on the side of the prosecution. An advocate's clerk was examined to prove the post-mortem examination. He candidly admitted in the cross-examination that he had no acquaintance with the doctor who prepared the post-mortem examination and that he had no familiarity with the handwriting of the doctor.  Therefore, it is clear that the post-mortem report was not proved as per the prescribed procedure. On this basis, counsel for the appellant contended that the prosecution evidence would not show the cause of death of Ashok Kumar and it is submitted that the prosecution failed to prove the offence of murder against the appellant. We find some force in this contention. The prosecution should have produced the best evidence by proving the post-mortem certificate. It should have examined any person who had some acquaintance with the handwriting of the doctor who prepared the post-mortem report, either one of his colleagues or anybody who had been working in the hospital where the doctor worked. The prosecution failed to produce the best evidence and the appellant is certainly entitled to the benefit of doubt arising out of this.
+5.  However, there is evidence to the effect that the appellant Munna Kumar fired a shot at the head of the deceased Ashok Kumar. The inquest report also would show that Ashok Kumar sustained an injury on his head but there is no satisfactory evidence to prove the cause of death of Ashok Kumar. In the absence of any satisfactory evidence it is difficult to convict the appellant for the offence of murder punishable under Section 302.  However, there is satisfactory evidence beyond all reasonable doubt to show that the appellant Munna Kumar fired a shot at the head of deceased Ashok Kumar. The offence would certainly come within the purview of Section 307 IPC.
+6.  In the result, we set aside the conviction and sentence of the appellant for the offence punishable under Section 302 and find him guilty and sentence him to undergo imprisonment for a period of 8 years under Section 307 IPC. We are told that the appellant has already undergone a long period in jail and he is entitled to set off for the period already undergone and if he has already completed 8 years, he be released forthwith. Dilip Kumar, the co- accused, who had been convicted along with Munna Kumar has not filed any appeal in this Court. He would be entitled to the benefit of this, in case he comes before this Court in appeal.
+Accordingly, the appeal is allowed.
+Appeal allowed.

Object_casedocs/C103.txt

@@ -0,0 +1,66 @@
+Pepsi Foods Limited and Another v Special Judicial Magistrate and Others
+Supreme Court of India
+
+4 November 1997
+Cr.A. No. 1019 of 1997
+The Judgment was delivered by : D. P. Wadhwa, J.
+1.  Leave granted.
+2.  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:
+"(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);
+(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;
+(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;
+(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
+(e) to allow the writ petition with costs".
+3.  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.
+4.  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.
+5. 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.
+6.  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.
+7. 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-
+(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;
+(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;
+(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;
+(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;
+(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
+(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;
+8.  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.
+9.  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:
+"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:
+"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."
+10.  In S. 12 we find reference of S. 11 which is reproduced as under:-
+"11. Procedure to be followed by food inspectors, 91) When a food inspector takes a sample of food for analysis, he shall
+(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;
+(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;
+(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."
+11. 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).
+12. 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:
+"244. Evidence for prosecution.-
+(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.
+(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.-
+(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.
+(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".
+13. 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:
+"(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.]"
+14.  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.
+15.  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.
+16.  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.
+17.  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:
+"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."
+18.  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."
+19.  When the summons were served on the appellants, they approached the High Court seeking reliefs as aforementioned bu the High Court declined to interfere.
+20.  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.
+21.  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.
+22. 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.
+23.  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.
+24.  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.
+25.  In Nagendra Nath Bora vs. The Commissioner of Hills Division [1958 SCR 1240 1958 Indlaw SC 62].  This Court observed as under:
+"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."
+26.  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.
+27.  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.
+28.  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.
+29.  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.
+30. 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.
+31. 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)].
+32.  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.
+33.  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.
+34.  We, therefore, allow this appeal, set aside the order of the High Court and quash the complaint and proceeding against the appellants.
+Appeal allowed.

Object_casedocs/C1030.txt

@@ -0,0 +1,30 @@
+Ramanand Yadav v Prabhu Nath Jha and Others
+Supreme Court of India
+
+31 October 2003
+Appeal (crl.) 119-121 of 1997, Appeal (crl.) 314-316 of 1997
+The Judgment was delivered by : Arijit Pasayat, J.
+1.  In these six appeals challenge is to the judgment of the Patna High Court which directed acquittal of 8 persons upsetting conviction recorded and sentence imposed by the First Additional Sessions Judge, Darbhanga. Three of them namely, Prabhu Nath Jha, Laxmi Yadav and Badri Yadav were found guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') while five others namely, Ramashish Yadav, Yadu Nath Yadav, Ram Chandra Yadav, Bhutkun Yadav and Ram Prakash Yadav were found guilty of offence punishable under Section 302 read with Section 149 IPC. Three of the accused persons namely Prabhu Nath Jha, Ramashish Yadav and Yadu Nath Yadav were also found guilty of the offence punishable under Sections 25A and 27 of the Arms Act, 1959 (in short the 'Arms Act') and two of them namely Laxmi Yadav and Badri Yadav were found guilty of offence under Section 3 of the Explosive Substance Act, 1908 (in short 'Explosive Act'). Life sentence was imposed by offences relatable to Section 302 or Section 302 read with Section 149. Custodial sentence of various magnitudes were imposed for other offences. Since Prabhu Nath was absconding, his trial was separated initially but finally the trial Judge tried the sessions trial of all the accused persons together.
+2.  Accusations which led to the trial of the accused persons and the prosecution version as unfolded during trial are as follows:
+3. On 16.6.1991 which was a Sunday at about 7.00 a.m. in the morning the informant Ramanand Yadav (PW-12) (who leads the life of a Sadhu) came along with his elder brother Thakkan Yadav, a school teacher (hereinafter referred to as the deceased) to Chanaur Chowk of the village to take tea at a tea-shop; this Chanaur Chowk is a market place in village Aabadi, where there are several small tea-shops, hair-cutting saloons, grocery shops, cloth shops etc; while Thakkan Yadav was chatting with one Lambodar Jha, a press-reporter in front of the shop of one Krishna Purbey, the accused Prabhu Nath Jha holding a revolver in small bag tied around his waist and the accused Laxmi Yadav and his brother Badri Yadav having bags on their shoulder arrived near the deceased; accused Prabhu Nath Jha fired his revolver/pistol on the right side Panjra (lower side chest) of the deceased and being hurt from this fire-arm shot of Prabhu Nath Jha, deceased fell down on the ground, and the other two accused Laxmi Yadav and Badri Yadav took out bombs from their bags and they started hurling bombs on the body of fallen deceased, and these two accused persons hurled several bombs and the smoke of the bombs engulfed the surroundings; deceased was severely injured; that the other accused Ramashish and Yadu Nath who were standing near the house of Prabhu Nath Jha at a distance of about hundred feet from the Chowk started firing in the air to scare the villagers to run away, and the accused Bhutkun, Ram Chandra and Ram Prakash started throwing brick-bats to make the villagers run away as the firing had started.
+4.  According to the prosecution case all the eight accused belong to one camp led by the accused Prabhu Nath Jha and all the eight accused were sympathizers of a particular political party. After this occurrence all the eight accused persons ran away towards the house of Prabhu Nath Jha, and the informant Ramanand Yadav (PW-12) went to the house of Prabhu Nath Jha and found that all these accused were running away towards north.
+5.  With the help of Jagannath Yadav (PW-1), Shyam Yadav (PW-2) and others the seriously injured Thakkan Yadav was carried on a rickshaw to the clinic of Dr. Manoj Kumar in Manigachhi for treatment, and they stayed there for ten minutes or about and there Dr. Manoj Kumar declared that Thakkan Yadav was dead, not being satisfied with the opinion of the doctor and hoping that the expert doctors might help in revival of life of Thakkan Yadav, Ramanand Yadav (PW-12) finding the jeep of a political party with some workers of the party in it by the side of the clinic of Dr. Manoj Kumar, placed the injured Thakkan Yadav in that jeep and brought him to Darbhanga Medical College Hospital, where the doctors of emergency wing too declared that Thakkan Yadav was dead.
+6.  According to the prosecution there were 6 eye-witnesses namely Jagarnath Yadav (PW-1), Utim Yadav (PW-3), Mahabir Yadav (PW-7), Batohi Yadav (PW-9), Indra Mohan (PW-10) and Ramanand Yadav (PW-12). Nagendra Mishra (PW-14) was the Investigating Officer and Dr. A.R. Kishore (PW17) was the doctor who conducted the post-mortem. Shyam Yadav (PW-2), Autar Jhan (PW-4) and Mahadeo Yadav (P-6) were stated to be immediate post occurrence witnesses.
+7.  Stand of the accused persons was that deceased was murdered by some unknown persons which was not witnessed by anybody and they have been falsely roped in due to enmity and political rivalry. Reference was made to some criminal cases to show enmity. Accused Prabhu Nath took the plea of alibi claiming that he was working at a different place and could not have been at the place of occurrence.
+8.  Placing implicit reliance on the evidence of the prosecution witnesses the trial Judge directed conviction and sentence as aforesaid. Three appeals were filed by the appellants separately and the High court directed acquittal by the impugned judgment disposing of them together.
+9.  The primary grounds on which the acquittal was directed are as follows: (i) there is a referral hospital between the place of occurrence and the Darbhanga Government Hospital and it has not been explained as to why the deceased was not taken to the referral hospital and was taken to the Darbhanga Hospital which is at a greater distance; (ii) PWs 6, 7 and 9 were examined after three days of occurrence; (iii) one Lambodar Jha and two others were available at the spot of occurrence but were not examined and only the interested witnesses were examined and, therefore, the prosecution version is suspect; (iv) when PWs 2 and 4 reached the place of occurrence they did not see any of the so-called eye witnesses and, therefore, their presence at the spot is doubtful; (v) the medical evidence is inconsistent with the prosecution case, as no bullet injury was found on the lower side of the right chest though witnesses said that a bullet was fired at that part of the body. It has to be noted that PW-7 has been found to be unreliable, and that according to High Court adds to the vulnerability of the prosecution version.
+10.  As indicated above, both the informant Ramanand (PW-12) and State of Bihar have questioned correctness of the High Court's judgment. By order dated 31.1.1997 the scope of present appeals was restricted to respondents 1 to 3 i.e. accused Prabhu Nath Jha, Laxmi Yadav and Badri Yadav, and was dismissed so far as others are concerned.
+11.  Learned counsel for the appellant-State contended that each of the reasons which has weighed with the High Court suffers from unsupportable fallacies and even there has been mis-reading of the evidence. So far as not taking the deceased to the referral hospital nearby, it has been pointed out that the witnesses have given reasons as to why the deceased was not taken to such hospital. It has been clearly indicated that at most of the times doctors are not available at the hospital and, therefore, the relatives were not taking any chance. The fact that the first examination was done by a doctor attached to the referral hospital clearly establishes the possibility of the doctors being not there, and merely because the deceased was taken to a Government hospital at some distance that cannot be a ground to render the prosecution version suspect. Unfortunately, the High Court has not properly considered this aspect. The second reason which has weighed with the High Court is the delayed examination of PWs 6, 7, and 9. There was no question put to the Investigating Officer as to why there was delayed examination.  Therefore, same cannot be taken as a ground for discarding the prosecution version on this ground alone. Regarding non examination of Lambodar and two others who claimed to be at the spot it was pointed out that the prosecution is not obliged to examine every witness in a faction ridden village and even those whose sympathies lay with the accused may hesitate to take any risks by offering themselves as witnesses and such non examination cannot be a ground to discard the prosecution version. So far as evidence of PWs 2 and 4 ruling out presence of so-called eye witnesses is concerned it was pointed out that the witnesses have clearly stated that after the explosion they went away being afraid and shocked, and came back after a short time. The evidence of PWs 2 and 4 shows that they reached the spot of occurrence immediately after the explosion and, therefore, the fact that they did not see the eye-witnesses cannot be a factor to doubt their presence. So far as the medical evidence is concerned, it is pointed out that the witnesses have stated about firing a gun by accused Prabhu Nath. Merely because no bullet injury was found that does not rule out the participation of accused Prabhu Nath. Even otherwise, the medical evidence in no way varies from the ocular evidence as the assaults attributed to other accused persons are clearly linked to the injuries on the body of the deceased. In any case, by application of Section 34 IPC accused Prabhu Nath Jha can be convicted.
+12.  In response, learned counsel for the accused submitted that the whole incident alleged to have taken place is a sequel to a political event. The parliamentary election was held on 12.6.1991 whereas the date of occurrence is 16.6.1991. The election tempo and frayed tempers continued. Evidence on record shows that there was political rivalry. The High Court's conclusions are in order. Firstly, there was no need to take the deceased to a hospital at a distant place after the doctor had opined that the deceased was no longer alive. There was few hours delay in lodging the FIR and that afforded an opportunity to falsely rope in the accused persons because of political rivalry. Out of six so-called eyewitnesses three were admittedly having hostility towards the accused persons. They were also not only related but also politically linked. Further delayed examination of PWs 6, 7 and 9 probabilises the inference that the prosecution version was concocted. PWs 1, 3 and 9 had business links with the deceased and, therefore, they had reason to rope in the accused persons falsely. Though medical evidence at first blush rules out role of accused Prabhu, but that also leads to an inference of false implication of other accused persons. There is little scope for interference with the order of acquittal unless the judgment is totally perverse and this is not a case of that nature.
+13.  Learned counsel appearing for the informant in Crl.A. Nos. 119121/1997 adopted the arguments of learned counsel for the State in the connected appeals.
+14.  The first factor which appears to have weighed with the High Court is taking the deceased to the hospital at some distance. The prosecution evidence amply clarifies as to why that was necessary to be done and the reading of evidence of PWs 1 and 12 is relevant in this regard. They have categorically stated that at most of the times the doctors at referral hospital are not present. They substantiated this impression by pointing out that Dr. Manoj who had first examined the deceased and declared him to be dead was a doctor of the referral hospital. The impression may be totally out of context; but the reason given cannot be said to be wholly implausible. Therefore, that should not have been taken as a ground by the High Court for directing acquittal.
+15.  The second factor which has weighed with the High Court is the delayed examination of three witnesses i.e. PWs 6, 7 and 9. The evidence of PW-7 does not appear to be very much credible and the trial Court and the High Court also did not appear to have placed much reliance on his evidence. But so far as PWs 6 and 9 are concerned, it is clear from reading of the evidence that the Investigating Officer was not asked specifically the reason for their delayed examination. This Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. (See Ranbir and Ors. v. State of Punjab (AIR 1973 SC 1409 1973 Indlaw SC 114 and Bodhraj @Bodha and Ors. v. State of Jammu and Kashmir (2002 (8) SCC 45 2002 Indlaw SC 1786).
+16.  So far as non-examination of Lambodar and two others is concerned it is established by the evidence on record that the village was a faction ridden one. In some cases persons may not like to come and depose as witnesses and in some other cases the prosecution may carry the impression that their evidence would not help it as there is likelihood of partisan approach so far as one of the parties is concerned. In such a case mere non examination would not effect the prosecution version. But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above the Court has to analyse the evidence with care and caution. Additionally, the accused persons have always the option of examining the left out persons as defence witnesses.
+17.  In Ram Avtar Rai and Ors. v. State of Uttar Pradesh (AIR 1985 SC 880 1985 Indlaw SC 73), Harpal Singh v. Devinder Singh and Anr. (1997 (6) SCC 660 1997 Indlaw SC 2475) and Gopi Nath @Jhallar v. State of U.P. (2001 (6) SCC 620 2001 Indlaw SC 20068) these aspects have been elaborately dealt with. Here again the High Court has erroneously drawn adverse inference.
+18.  So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.
+19.  The High Court has thus knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Over dependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adoptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony of eyewitnesses only if it is so conclusive as to rule out even the possibility of the eyewitness's version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice.
+20.  Similar view has also been expressed in Mange v. State of Haryana (1979(4) SCC 349 1979 Indlaw SC 521), State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154 1988 Indlaw SC 76) and Ram Dev and Anr. v. State of U.P. (1995 Supp. (1) SCC 5471994 Indlaw SC 1372) and State of U.P. v. Harban Sahai and Ors. (1998 (6) SCC 50) 1998 Indlaw SC 692
+21.  Even otherwise, the medical evidence may be at variance so far as alleged assault by accused Prabhu Nath Jha is concerned. But there is no variance pointed out by the High Court so far as others are concerned. Therefore, there is no supportable foundation for holding that there was concoction. Accused Prabhu even otherwise can be held guilty by application of Section 34 IPC. Though there was no charge framed for an offence under Section 302 read with Section 34, the evidence on record clearly brings out application of Section 34 and as was observed by this Court in Lallan Rai and Ors. v. State of Bihar (2003 (1) SCC 268 2002 Indlaw SC 1400) Section 34 can be applied if the evidence of the eyewitnesses clearly establishes the role played by the concerned accused.
+22.  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. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567 2002 Indlaw SC 1611). 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 and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (1973 (3) SCC 1931973 Indlaw SC 181), Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167 1996 Indlaw SC 2602), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320 2000 Indlaw SC 254), Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152 2003 Indlaw SC 819), State of Punjab v. Karnail Singh (2003 (5) Supreme 508 2003 Indlaw SC 617 and State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17).
+23.  The inevitable conclusion because of the factual and legal panorama noted above is that the High Court was not justified in directing acquittal. The same is set aside. Respondents are convicted under Section 302 read with Section 34 IPC and are sentenced to undergo imprisonment for life. As they are on bail, they shall surrender forthwith to suffer remainder of the sentence. The appeals are allowed in the aforesaid terms.
+Appeal allowed

Object_casedocs/C1031.txt

@@ -0,0 +1,25 @@
+Mahant Sri Srinivas Ramanuj Das v Agricultural Income Tax Officer, Puri, and Another
+Supreme Court of India
+
+12 September 1978
+C.A. No. 1770 of 1972
+The Judgment was delivered by : V. D. Tulzapurkar, J.
+1. The short question raised in this appeal by special leave is whether s. 8(1) of the Orissa Agricultural Income Tax Act, 1947 suffers from the vice of discrimination and as such hit by Art. 14 of theConstitution?
+2. The appellant is the Mahant of Emar Math at Puri, which is an ancient public Hindu Religious Trust. The trust owns considerable endowed properties both agricultural and non- agricultural. After the passing of the Orissa Agricultural Income Tax Act, 1947 (hereinafter called 'the Act'), the appellant as a trustee has been assessed in the status of an 'individual' under the Act for the assessment -years 1948-49 to 1967-68 in respect of the income derived from agricultural lands owned by the trust. It appears that these assessments have been made after granting the exemption under s. 8(1) of the Act which provides that "any sum derived from land held under such trust and actually spent for the said purposes (charitable or religious purposes) shall not be included in the total agricultural income of such assessee". By a Writ Petition No. 48 of 1968, filed under Arts. 226 and 227 of the Constitution, the appellant challenged the constitutional validity of s. 8(1) of the Act under which the assessments were made principally on the ground that s. 8(1) was discriminatory and hit by Art. 14 of the Constitution inasmuch as under the said provision in respect of non- Muslim public trusts created for religious or charitable purposes the exemption contemplated therein was confined to such agricultural income as was actually spent for the public purposes of charitable or religious nature while in the case of Muslim trusts (wakfs) the entire agricultural income, whether spent for charitable or religious purposes or not, was exempt from the operation of the Act under s. 9 of the Act. The contention was refuted on behalf of the respondents. On an examination of the provisions of ss. 8 and 9 in the context of the scheme of the Act the Orissa High Court negatived the said contention and dismissed the Writ Petition on November 30, 1971. The appellant has come up in appeal to this Court Since counsel for the appellant raised the self-same contention before us in support of the appeal it will be desirable to set out the provisions of ss. 8 and 9 of the Act in order to appreciate his submissions on the point. S. 8 runs thus:-
+"8. Exemption of charitable or religious trusts:-
+(1) Where the assessee is a trustee and the trust under which he holds the property is a trust, created for public purposes of a charitable or religious nature, any sum derived from land held under such trust and actually spent for the said purposes, shall not be included in the total agricultural income of such assessee.
+(2) In this section purposes of a charitable nature include relief of the poor, education, medical relief and advancement of any other object of general public utility."
+S. 9 runs thus:-
+"9. Exemption of Wakf-alal-aulad. -All agricultural income of Muslim trusts referred to in s. 3 of the Musalman Wakf Validating Act, 1913, created before the commencement of this Act, shall be excluded from the operation of this Act:-
+Provided that the share of a beneficiary under a trust under the aforesaid Act, commonly known as Wakf-alal-aulad, shall not be exempted and the tax may be realised from the mutawali and the basis of taxation shall be the share of each beneficiary.
+Explanation.-For the purposes of this s., a beneficiary means the settler, his family, children and descendants."
+3. Since s. 9 refers to Muslim trusts 'referred to in s. 3 of the Musalman Wakf Validating Act, 1913', it would be proper to set out the provisions of s. 3 of the Musalman Wakf Validating Act, 1913. s. 3 of that Act runs an follows.-
+"3. Power of Mussalmans to create certain wakfs.- It , shall be lawful for any person professing the Mussalman faith to create a wakf which in all other respects is in accordance with the provisions of Musalman law, for the following among other purposes:-
+(a) for the maintenance and support wholly or partially of his family, children or descendants, and
+(b) where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his life-time or for the payment of his debts out of the rents and profits of the property dedicated:-
+Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Mussalman law as a religious, pious or charitable purpose of a permanent character."
+4. Mr. Mukherjee for the appellant contended that the exemption contemplated by s. 8(1) of the Act is confined only to such part of the income derived from agricultural lands held under a public charitable or religious trust as is actually spent for the charitable or religious purposes while under s. 9 all agricultural income of Musalman trusts (wakfs) irrespective of whether the same is spent on public purposes of charitable or religious nature or not is exempt from the operation of the Act; in other words in the matter of granting exemption between the agricultural income of two types of public trust created for charitable or religious purposes, the Act has practised hostile discrimination against agricultural income of non-Muslim public trusts, the classification having no reasonable nexus with the object sought to be achieved by the statute which is to tax agricultural income derived from lands and to exempt the income so derived by a public charitable or religious trust. According to him though s. 9 refers to all agricultural income of Muslim trusts "referred to in s. 3 of the Musalman Wakf Validating Act, 1913, (Act VI of 1913), the wakfs contemplated by s. 3 of the said Act (Act VI of 1913) include not merely Wakf- alal-aulad but also other wakfs where property has been permanently dedicated for any purposes recognised by the Musalman Law as religious, pious or charitable and this, he argued, becomes clear from sub-cl. (a) of s. 3 which speaks of wakf created by a Muslim for the maintenance and support wholly or partially of his family, children or descendants; in other words, according to Mr. Mukherjee, s. 9 of the Act is not confined to Muslim trusts known as wakf- alal-aulad but is applicable to all wakfs and, therefore, in case of wakfs other than wakf-alal-aulad the exemption granted by s. 9 of the Act which is in respect of all agricultural income must be regarded as discriminatory as against the exemption granted by s. 8(1) of the Act. He, therefore, urged that s. 8(1) which grants a limited exemption would be violative of Art. 14 of theConstitution. On the other hand, the learned Attorney-General appearing for the respondents contended that s. 9 is confined to Muslim trusts commonly known as wakf-alal-aulad and all other Muslim trusts are covered by s. 8(1) of the Act with the result that to all such Muslim trusts, other than wakf- alal-aulad, the limited exemption is applicable. He urged that wakfs-alal-aulad do stand in a class by themselves and as such have been dealt with by s. 9 in keeping with the objective of the Act. He further urged that ss. 8(1), 9 and 16 showed the scheme of the Act and if these provisions were considered in light of the main objective of the enactment it was clear that s. 8(1) could not be held to be discriminatory or violative of Art. 14.
+5. Before considering the rival contentions touching the constitutional validity of s. 8(1) of the Act it would be proper to keep in mind the main objective as well as the scheme of the Act, particularly in regard to the charging provision and the provisions dealing with exemptions contained therein. the Act, as its preamble would indicate, has been put on the Statute Book with the object of imposing a tax on agricultural income derived from lands situated in the State of Orissa. S. 2(a) defines the expression "agricultural income" comprehensively. The charging provision is contained in s. 3 which provides that agricultural income tax at the rate or rates specified in the Schedule shall be charged for each financial year in accordance with and subject to the provisions of this Act on the total agricultural income of the previous year of every person; the proviso, however, states that no agricultural income tax shall be charged on the agricultural income of the Central Government or any A State Government or any local body. S. 5 prescribes limits of taxable income while s. 6 prescribes the method and manner of determining the agricultural income of every assessee. Then come the two material provisions dealing with exemptions, namely, ss. 8 and 9 which have been reproduced above. The other material s. which deals with exemption is s. 16 which provides that agricultural income tax shall not be payable by an assessee in respect of any amount actually spent by him out of his total agricultural income for the benefit of the people of the State or for charitable purposes, but this exemption is subject to the proviso that agricultural income tax shall be payable on the remainder of the total agricultural income of such assessee at the rate which would have been applicable if such deduction had not been made. It is unnecessary to refer to other provisions as they are not material for our purposes. The scheme if the Act, as disclosed by the aforesaid provision, is that under the charging provision agricultural income tax is levied on the total agricultural income of the previous year of every assessee subject to the exemptions which have been provided for under ss. 8, 9 and 16. It is also clear that whereas the exemption in regard to the amount actually spent for charitable purposes under s. 8(1) is in relation to the agricultural income of a public charitable trust, the exemption of similar nature and extent contemplated by s. 16 is in regard to the agricultural income of any assessee who may not be a trustee owing lands under a public charitable trust; in other words, in either case the exemption is confined to such part of the agricultural income which is actually spent by the assessee for charitable purposes. The legislative intent of granting such a limited exemption having been thus clearly brought out by ss. 88(1) and 16 of the Act, the question would be whether by enacting s. 9 the Legislature really intended to accord or has actually accorded favourable treatment to Muslim trusts in the matter of granting exemption in the manner suggested by counsel for the appellant ?
+6. Having regard to the submissions made by counsel for the appellant the question raised for determination may be formulated thus: Whether ss. 8 and 9 while providing for exemption to charitable or religious trusts discriminate between agricultural income derived from lands held under non-Muslim public trusts and those held under Muslim trusts and accord to the latter a favourable treatment as against the former by confining the exemption in the former case to such income as has been actually spent for public purposes of charitable or religious nature ? In other words is s. 8(1) which confers a limited exemption as compared to s. 9 hit by Art. 14 ? It has not been disputed before us that Muslim trusts known as Wakf-alal-aulad constitute a distinct class from other types of wakfs but the discrimination complained of is founded upon plea that s. 9 of the Act covers all Musalman wakfs and not merely wakfs known as the Wakf-alal-aulad and, therefore, it will be necessary to examine the provisions of s. 9 in order to ascertain whether the plea that it covers all Musalman wakfs is warranted or not. S. 9 in terms says that the exemption thereunder is confined to Muslim trusts "referred to in s. 3 of the Musalman Wakf Validating Act, 1913" and the question is what wakfs are referred in s. 3 of the Musalman Wakf Validating Act, 1913 (hereinafter called 'the Validating Act'). the Validating Act, as we shall indicate presently, was enacted only for the purpose of validating wakfs in the nature of wakf-alal-aulad: As has been pointed out by this Court in Fazlul Rabbi Pradhan v. State of West Bengal and others, A. I. R. 1965 SC 1722 1965 Indlaw SC 168 , wakfs (which were primarily family settlements in which the benefits to charity or religion were either illusory or postponed indefinitely while the property so dedicated was being enjoyed from generation to generation by the family of the wakf were regarded as opposed to the rule against perpetuity as contained in the Indian Succession Act and the Transfer of Property Act. The leading decision of the Privy Council in that behalf rendered in Abul Fata Mahomed Ishak and others v. Russomoy Dhur Chowdhery and others, 22 Indian Appeals 76 1894 Indlaw PC 22 caused considerable dissatisfaction in the Muslim community in India resulting in a representation being made to the Government of India and consequently the Validating Act came to be enacted with the primary Object of removing the difficulties created by that decision. The preamble of the Act makes this very clear. S. 3 declares the right of a person professing Musalman faith to create a wakf (which in all other respects is in accordance with the provisions of Musalman law) for the maintenance and support wholly or partially of his family, children or descendants and in the case of a Hanafi Mussalman also for his own maintenance and support during the life time or for payment of his debts out of the rents of the property dedicated provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Musalman law as a religious, pious or charitable purpose of a permanent character. S. 4 also declares that no such wakf as is referred to in s. 3 shall be deemed to be invalid merely because of remoteness of benefit to charity. In fact, s. 3 s declaratory of a right of a Muslim to create a valid wakf of the type described therein and the proviso makes it clear that but for the reservation of ultimate benefit to charity that has to be made, such family settlement (private wakfs) would be invalid. It is conceivable that a deed or instrument of wakf may be a composite one, partly incorporating public wakf and partly private wakf but s. 3 of the Validating Act unquestionably refers to that part of the instrument which incorporates a private n wakf-wakf-alal-aulad, the vaildity of which must depend upon whether in that part of the instrument the ultimate benefit is expressly or impliedly reserved for charitable or religious purposes or not. It is thus clear that s. 3 of the Validating Act refers only to Muslim trusts which are in the nature of wakf-alal-aulad. The exemption in s. 9 of the Act, therefore, clearly applies only to Muslim trusts which are in the nature of wakf-alal-aulad. This is also clear from the marginal note to s. 9 as well as the proviso to the section. If that be so then all other wakfs would squarely fall under s. 8(1) and to all such wakfs the limited exemption contemplated therein would apply. Even if the instrument of wakf is a composite one partly incorporating a public wakf and partly a private wakf that part which deals with public wakf will fall under s. 8(1) and the other part will be covered by s. 9, for, the language d s. 8(1) is wide enough to include such a deed to the extent that it incorporates a public wakf. In other words, Muslim trusts i.e. wakfs other than wakf-alal-aulad would be covered by s. (8) (1) and to such wakfs the limited exemption contemplated by s. 8(1) would apply. If that be so, the gravamen of complaint that all wakfs (Muslim trusts) other than wakf-alal-aulad are receiving favourable treatment as against non-Muslim public charitable trusts must fall to the ground.
+7. As regards Muslim trusts which are in the nature of wakf-alal-aulad which alone are covered by s. 9, the proviso clearly shows that the share of the beneficiary under such a trust far from being exempted is brought to tax and the tax is made realisable from the mutawali and read with the proviso the main provision really confines the benefit or exemption only to ultimate illusory or remote public charitable or religious purpose and is thus completely consistent with the object and scheme of the Act.
+8. In the result, we are clearly of the view that s. 8(1) of the Act is free from the vice of discrimination under Art. 14 of the Constitution and the said provision is perfectly valid and constitutional. The appeal is. therefore, dismissed with costs.

Object_casedocs/C1032.txt

@@ -0,0 +1,73 @@
+Bahadursinh Lakhubhai Gohil v Jagdishbhai M. Kamalia and Others
+Supreme Court of India
+
+17 December 2003
+Appeal (civil) 32 of 1999
+The Judgment was delivered by : S. B. Sinha, J.
+1.  A Public interest litigation was filed by the first respondent herein questioning an action of the respondent-Corporation and its chairman of the Standing Committee insofar as incorporation of the name of the -respondent No. 7 in the municipal register was allowed.
+FACT:
+2.  An auction was held by the respondent No. 3 herein for granting a vacant land and bearing plot No. 2557 admeasuring 90 x 150 feet (1500 square yards) for a period of 99 years on or about 7.11.1951. One Shri Vajubha (since deceased), the predecessor in interest of the appellant herein became the highest bidder by offering a sum of Rs. 360 being the one time premium. The said Shri Vajubha deposited a sum of Rs. 270 on or about 14.2.1952 and prayed for grant of three months' further time for paying the balance sum of Rs. 90. The respondent No. 3 agreed to the aforementioned offer by a letter dated 19.2.1952 directing that the said amount must be paid within three months in default, the allotment will be cancelled. Admittedly the said amount was not deposited. No rent was also paid by him to the respondent Corporation.
+3.  One Pandya Minaben Kuberbhai filed a suit in relation to Plot No. 2557 being suit No. 30 of 1990 in the Court of Civil Judge (S.D.). Bhavnagar wherein a written statement was filed by the respondent -Corporation asserting right title and interest as also possession therein. Late Shri Vajubhai or the respondent No. 7 herein did not take any step in relation to the land in question either for obtaining possession, payment of balance amount of the auction amount or assessment of municipal taxes. Only upon expiry of about 44 years, the respondent No. 7 wrote two letters dated 25.7.1996 and 31.7.1996 to the Commissioner of the respondent No. 3 to enter his name in the lease register expressing his readiness and willingness to deposit the further sum of Rs. 90. The then Home Minister of the State of Gujarat by a letter dated 7.9.1996 instructed the respondent No. 3 herein to incorporate the name of the respondent No. 7 in the register. However, the Estate said applications by a letter dated 26.9.1996. Despite the said rejection, the respondent No. 7 herein by a letter dated 3.10.1996 requested the Chairman, Standing Committee for incorporating his name in the lease register which was rejected by the then Chairman, Mr. Laxman Radheshwar in the following terms :
+"It appears from complete examination of papers that claimant Vajubha Hathisinh has not paid amount for the plot he had taken in auction as per the Rules.
+It is said that plot No. 2557/A was purchased in 1951 in auction. The claimant was given notice and further time to pay the balance amount but he had not paid the same. Therefore, allotment of plot stands forfeited as per Rules, which he claims after 46 years.
+The price of the plot has arisen many times in 46 years and if now the plot is given to the claimant, the Corporation is stand to lose crores of rupees and the Corporation is planning to construct Commercial Complex on this plot. In the circumstances nothing remains to be done and the matter is hereby returned."
+4.  The said letter was contained in Annexure I to the writ petition and a copy thereof has been produced before us by Mrs. Sundaram. the learned senior counsel appearing on behalf of the respondent-Corporation. Prior thereto, it appears that a legal opinion was obtained on the subject matter. It further appears that on 8.7.1997 an election was held for the post of Chairman of the Standing Committee and the respondent No. 5 Mr. Mahpatsingh Gohil was elected. Soon thereafter i.e. on 23.7.1997, an agenda was purported to have been circulated for meeting of the members of the Standing Committee to be held on 25th July, 1997 wherein, however, the proposal for consideration of the applications filed by the respondent No. 7 herein did not find place. Despite the same, allegedly a resolution was passed to incorporate the name of the respondent No. 7 in the lease register; pursuant whereto and in furtherance whereof, the respondent No. 3 herein issued an office order on 30th July, 1997 directing recovery of a sum of Rs. 90 with 24% interest thereon from the respondent No. 7 and to lease out the plot of land to him subject to the following conditions:
+"1. The applicant, has to pay the whole of the amount remaining due together with penal interest at the rate of 24% within 15 days.
+2. The final decision in Civil Suit No. 30/90 will be binding.
+3. The allotment on lease for 99 years is made for the residential purpose only and all its conditions shall be agreeable and binding to the applicant.
+4. Shall have to complete all the proceedings in order to bring his name on record."
+5.  It is not in dispute that at least two members of the Standing Committee demanded cancellation of the said Resolution on the ground that the said resolution did not find place in the agenda nor had it been discussed or approved by the Standing Committee. It does not appear that any decision had been taken thereupon. In the meanwhile the respondent No. 7 herein allegedly transferred the said land to the appellants herein for a sum of Rs. 4 lakhs. The public interest litigation was thereafter filed by the respondent Nos. l and 2. In the said writ petition, the appellants herein were impleaded as a party respondents.
+PUBLIC INTEREST LITIGATION :
+6. In the said writ petition, the respondent No. 3 filed a counter-affidavit supporting the case of the respondent No. 7 wherein inter alia it was alleged that the impugned decision had been taken keeping in view the fact that the possession of the plot was handed over to the respondent No. 7. The respondent Nos. l and 2 filed an affidavit of service stating that appellant herein refused to accept the same. The appellant, however, wrote a letter to the Registrar, High Court that he did not receive the notice and his letter should be placed on record before the Court.
+7.  The matter was taken up for hearing with the consent of the parties and by reason of the impugned judgment dated 26.3.1998, the writ petition was allowed by a Division Bench holding :
+"In the above-referred circumstances, we are of the view that the impugned order dated 30th July 1997 passed by the respondent Corporation and Resolution No. 185 passed by the Standing Committee on 25th July, 1997 are illegal and unjust and they are hereby quashed and set aside. As the said resolution is quashed and set aside, as a consequences thereof, legal heirs of late Shri Vajubha shall not get any right in respect of the land in question and their names, if entered in the register of lease maintained by the Corporation, shall be deleted from the lease register and no agreement of lease in respect of the land in question shall be entered into by the Corporation with the heirs of late Shri Vajubha; Needless to say that respondent No. 6 shall not get any right in respect of the land in question as the legal heirs of late Shri Vajubha are not having any right in respect of the land in question and, therefore, they could not have transferred or as-signed any right to respondent No. 6 in respect of the land in question. The Corporation shall forthwith do the needful to take actual possession of the land if the possession has been given to anyone. The Corporation shall also see that nobody puts up any construction on the land in question."
+It was further directed :
+"Looking to the fact that the property belonging to the Corpora-tion has been attempted to be disposed of against the interest of the Corporation in an improper and unjust manner, we direct respondent No. 4 to look into the matter and initiate appropriate proceedings against the concerned Councillors of the Corporation under provisions of the Bombay Provincial Municipal Corpora-tions Act, 1949. It is hoped that an appropriate decision to initiate action shall be taken within three weeks from the date of receipt of the order by respondent No. 4."
+FINDINGS OF THE HIGH COURT :
+8. The High Court considered the matter at great length. It called for and perused the records maintained by the respondent No. 3. It was held that late Shri Vajubha did not make.any payment during the extended period of three months, although, in a letter written by the Chief Officer of the Municipality, a reference had been made to the effect that Shri Vajubha was given possession of the plot on the condition that he would make payment to the remaining amount of premium within three months from 16th February, 1952. The High Court called for and perused the records of the matter; but observed that nothing existed on record as to on what date the purported possession had been delivered and in relation thereto not only no document existed but also no office note in the record disclosed the factum of handing over the possession. It was held that :
+(i) Shri Vajubha had not been in actual possession of the plot in question and the plot was lying open;
+(ii) the name of Shri Vajubha was not entered into the lease register nor any deed of lease was executed in his favour;
+(iii) even in Regular Civil Suit No. 30 of 1990, the respondent-Corporation claimed right title interest and possession in itself;
+(iv) the Panchnama date 30th July, 1996 discloses that the plot in question was an open land and there were babul trees standing on the unused plot with heaps of earth;
+(v) the respondent-Corporation acted against its own interest by passing the impugned order;
+(vi) it also did not take into consideration the value of the land in question which was approximately one crore;
+(vii) the Councillors who are holders of public offices were bound to act as trustees of the Corporation; and
+(viii) the writ petitioners had locus standi to maintain the writ petition.
+SUBMISSIONS :
+9. Mr. K.N. Bhat, the learned counsel appearing on behalf of the appellant in assailing the judgment of the High Court would submit :
+(i) The High Court committed a manifest error in passing the impugned judgment without hearing the appellant.
+(ii) As the Competent Authority for good and valid reason accepted the balance money and entered the name of the respondent No. 7 in the lease register, the High Court should not have interfered therewith.
+(iii) As the writ petition does not disclose violation of any substantive or procedural law, nor the impugned judgment disclosed any, it cannot be sustained.
+(iv) The High Court committed a manifest error in exercising its power of judicial review keeping in view the fact that its jurisdiction is limited to enquire into the existence of any error in the decision making process and not on merit thereof.
+Mr. Sundaram, on the other hand, would submit that :
+(i) Having regard to the provisions of Section 17 of the Registration Act, no title passed on to Shri Vajubha or the respondent no. 7 herein;
+(ii) the finding of the High Court to the effect that no possession was delivered to the highest bidder or to his successors interest being a finding of fact, no interference therewith by this Court is warranted :
+(iii) the applications dated 25.7.1996 and 31.7.1996 having been rejected by the respondent-Corporation by an order dated 26.9.1996 as also by the Chairman, Standing Committee in terms of the report dated 30th June, 1997, the new incumbent of the said office could not have considered the matter afresh in absence of any statutory power to review the said orders:
+(iv) the applications dated 25.7.1996 and 31.7.1996, if construed to be applications for grant of fresh lease, the provisions of Section 79 of the Bombay Provincial Municipal Corporation Act, 1949 were required to be complied with, which having not been done, the orders impugned in the writ petition are wholly ill legal and without jurisdiction.
+OUR FINDINGS :
+10. It is not in dispute that the property in question had vested with the respondent-Corporation. The respondent-Corporation, therefore, could grant a lease in respect of the premise in question in terms of Section 79 of the Bombay Provincial Municipal Corporation Act, 1949 which stands extended to Gujarat. Section 79 of the said Act reads thus:
+"with respect to the disposal of property belonging to the Corpo-ration other than property vesting in the Corporation exclusively for the purposes of the Transport Undertaking the following provisions shall have effect, namely :
+(a)
+(b) with the sanction of the Standing Committee the Commis-sioner may dispose of by sale, letting out on hire or otherwise any moveable property belonging to the Corpora-tion, of which the value dos not exceed five thousand rupees: and may with the like sanction grant a lease of any immov- able property belonging to the Corporation, including any such right as aforesaid, for any period exceeding one year or sell or grant a lease in perpetuity of any immovable property belonging to the Corporation the value of premium whereof does not exceed fifty thousand rupees or the annual rental whereof does not exceed three thousand rupees;
+(c) ***
+(d) the consideration for which any immovable property or any right belonging to the Corporation may be sold, leased or otherwise transferred shall not be less than the current market value of such premium, rent or other consideration;"
+11.  It stands admitted that Shri Vajubha did not deposit the entire sum of Rs. 360. The letter dated 19.2.1952 which was issued acceding to the request of the auction purchaser to the effect that he be granted three months' time for making payment of balance sum of Rs. 90 was a conditional order insofar as while granting such extension, it was stipulated therein that on failure to do the same, the allotment would be cancelled. As order in writing could have been issued cancelling the allotment and forfeiting the amount of Rs. 270 but once it is held that the said letter dated 19.2.1952 was a conditional one, a fortiorari upon Shri Vajubha's failure to deposit the amount, the allotment stood cancelled.
+12.  Furthermore, it is not in dispute that for the purpose of demise of a premise for a period exceeding one year, a registered document was required to be executed. In absence of execution of such a registered deed, no title could have passed in favour of the auction purchaser. The statutory requirements for grant of lease must be fulfilled so as to confer a legal right on the property upon the auction purchaser. As the statutory conditions, as contained in Section 79 of the Act as also Section 17 of the Indian Registration Act, were not complied with, there cannot be any doubt whatsoever that Shri Vajubha did not derive any title by reason of said auction or otherwise. This Court in The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and Others, AIR (1977) SC 2149 1977 Indlaw SC 49 in relation to a grant made under Article 299 of the Constitution of India observed:
+"8. Re : Contention l : It is now well settled that the provisions of Article 299 of the Constitution which are mandatory in character require that a contract made in the exercise of the executive power of the Union or of a State must satisfy three conditions viz. (1) it must be expressed to be made by the President or by the Governor of the State, as the case may be; (ii) it must be executed on behalf of the President or the Governor, as the case may be, and (iii) its execution must be by such person and in such manner as the President or Governor may direct or authorise. Failure to comply with these conditions nullifies the contract and renders it void and unenforceable. (See decisions of this Court in State of Bihar v. M/s. Karam Chand Thapar & Brothers Ltd., [1962] 1 SCR 827 : AIR (1962) SC 110 : (1962) 2 SCJ 17 1961 Indlaw SC 262, Bikhraj Jaipuria v. Union of India, [1962] 2 SCR 880 : AIR (1962) SC 113: (1962) 2 SCJ 479 1961 Indlaw SC 454 and State of West Bengal v. M/s. B.K. Mondal & Sons, [1962] Supp l SCR 876 : AIR (1962) SC 779 1961 Indlaw SC 161."
+13.  This Court clearly held that if the said conditions are not fulfilled, the question of raising any plea of estoppel would not arise. The submission of Mr. Bhat to the effect that the orders impugned in the writ application dated 30th July, 1997 was passed upon obtaining a legal opinion and keeping in view the fact that possession had rightly or wrongly been delivered cannot be accepted. Apart from the fact that the reasons assigned by the High Court are valid and cogent, it is difficult to believe in the peculiar facts and circumstances of the case that possession of the plot in question had been handed over to Shri Vajubha. In the Panchnama prepared on 30th July, 1996 it was stated :
+"In the aforesaid plot of panchnama, thorn trees are standing and heap of stone of waste land and heap of waste clay are laying, which, as stated by the holder of plot No. 2556 was laid by them. No any kind of temporary or permanent, incomplete or matured constructure is there in the said plot. In the surrounding of the said plot, except on side of plot No. 2556, no compound wall or wire fencing or hedge of thorn is there/placed/made."
+14.  It would be beyond anybody's imagination that a person who has obtained possession of the plot would not use the same for any purpose whatsoever. Furthermore, no document showing exercise of any act of possession or payment of ground rent has been produced.
+15.  In any event, the statutory authorities are bound to pass orders in writing. If possession of the plot had been delivered, the respondent - Corporation was bound to prepare document in respect thereof wherefor at least a receipt was required to be obtained from the auction purchaser showing that such possession had been delivered. If the possession had been delivered, the date on which the same was done could have been found out from the records of the municipal Corporation. As noticed by the High Court, no document exists. Even no noting in the file to that effect has been made. Only because an Officer in one of the correspondence had mentioned that possession had been delivered, the same, in our opinion, as has rightly been held by the High Court, could not have been accepted as a sacrosanct.
+16.  Furthermore, there was absolutely no reason as to why only a few weeks before the purported transfer made in favour of the appellants herein the respondent No. 7 would file two applications praying for entering his name in the lease register and showing his readiness and willingness to deposit a sum of Rs. 90. If the contention of the said respondent was to be accepted, he would have pleaded acquisition of title by adverse possession as also waiver of this aforementioned sum of Rs. 90.
+17.  It is further beyond anybody's imagination as to how despite rejection of said applications by the respondent-Corporation as also the Chairman of the Standing Committee by orders dated 26.9.1996 and 30.6.1997 respectively, without any fresh application as also fresh materials, the matter could have been again placed before the Standing Committee. Admittedly, the Chairman of the Standing Committee does not have any power to review the order passed by the Commissioner or his predecessor in interest nor there exists any provision for appeal against the orders of the Commissioner or the Corporation. The least it was expected of the Corporation that the respondent No. 7 would file a fresh application brining on records some new facts.
+18.  The impugned order dated 30th July, 1997 is passed on a lawyer's opinion who in turn has proceeded on the basis that possession had been delivered to Shri Vajubha. The questions of law which had been raised in the public interest litigation were not considered therein.
+19.  The basic legal premise that even a noting in the file would not confer any right upon a person, as adumbrated by this Court in Bachhittar Singh v. State of Punjab and Another, AIR (1963) SC 395 1962 Indlaw SC 541 was not taken note. In the instant case there does not exist even any noting, nor any other document showing delivery of possession.
+20.  The purported transaction effecting transfer of the property by the respondent No. 7 in favour of the appellants for a sum of Rs. four lakhs also is a pointer to the fact that such action was taken at the behest of the appellants.
+21.  The. impugned order was preceded by a direction of the Home Minister on 7.9.1996. A charge in the opinion came into being only upon change in the holder of the office and that too within a few days. Not only the matter had not been admittedly placed on the agenda of the meeting dated 25.7.1997, the same was considered showing undue haste.
+22.  In Dr. S.P. Kapoor v. State of Himachal Pradesh and Others, AIR (1981) SC 2181 1981 Indlaw SC 285, this Court held that when a thing is done in a post-haste manner, mala fide would be presumed stating : "33. The post-haste manner in which these things have been done on 3.11.1979 suggests that some higher-up was interested in pushing through the matter hastily when the regular Secretary, Health the Family Welfare was on leave."
+23.  It is also well-settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires. (See Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR (1952) SC 16 1951 Indlaw SC 58 and Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi and Others, [1978] 1 SCC 405 1977 Indlaw SC 53. It is, therefore, not a case where the High Court can be said to have committed an error in entertaining the public interest litigation. In our opinion, it has rightly been held that by reason of the impugned order, public interest has been given a complete go-by and a valuable public property was doled out at the behest of those who are duty bound to protect the same.
+24.  In Bangalore Medical Trust v. B.S. Muddappa and Others, [1991] 4 SCC 54 1991 Indlaw SC 1038 this Court held that an open space reserved for public park in terms of development scheme cannot be converted into a civil amenity site for the purpose of hospital/nursing home and allotted to a private person or body of persons for- that purpose. Discretion, this Court pointed out, must be exercised objectively, rationally, intelligibly, fairly and non- arbitrarily.
+25.  So far as the grievance of Mr. Bhat to the effect that the appellant had not been given an opportunity of being heard is concerned, suffice it to point out that we have ourselves heard the learned counsel at great length. Furthermore, the order impugned in the writ petition was passed in favour of the respondent No. 7 who was present in the Court. Furthermore, even the then authorities of the respondent No. 3 also supported the orders impugned in the writ applications. The appellants herein were given notice but despite knowledge of the pendency of the writ petition, chose not to appear before the High Court despite the same.
+26.  We, therefore, are of the opinion that as substan_ial justice has been done, it is not a fit case where this Court should exercise its discretionary jurisdiction under Article 136 of the Constitution of India.
+This appeal is, therefore, dismissed without any order as to costs.
+Appeal dismissed

Object_casedocs/C1033.txt

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+Prakash v State Of Rajasthan
+Supreme Court of India
+
+22 March 2013
+CRIMINAL APPEAL NO. 26 OF 2008 WITH CRIMINAL APPEAL NO. 27 OF 2008
+The Judgment was delivered by : P. Sathasivam, J.
+1. These appeals are directed against the final judgment and order dated 02.03.2006 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No. 154 of 2002, whereby the High Court dismissed the appeal filed by the appellants herein and confirmed the order dated 31.01.2002 passed by the Additional Sessions Judge, Barmer, Rajasthan in Sessions Case No. 28 of 1998 by which the appellants herein were convicted for the offence punishable under Sections 302, 364 and 120-B of the Indian Penal Code (in short "IPC") and sentenced them to undergo imprisonment for life u/s. 302 and to pay a fine of Rs.5000/- each.
+2. Brief facts:
+(a) This is a case of kidnapping and murder of a 7 year old child out of enmity.
+(b) On 16.04.1998, Leeladhar (PW-1) lodged a report at Police Station, Barmer stating that on 15.04.1998 his son Kamlesh aged about 7 years left for the school in the morning but did not return home till evening at 7.00 p.m. In pursuance of the said report, the police made a search. On 19.04.1998, on an information by Hansraj (PW-8), Khet Singh (PW-9) and Bheemaram (PW-11) that a dead body of a boy was found lying on the hill of Sujeshwar in mutilated condition, the police along with one Leeladhar (PW- 1) went to the spot. They found that some parts of the dead body were eaten by the animals. From the clothes, shoes, socks and school bag, PW-1 identified the dead body as that of his son.
+(c) On 19.04.1998, another report of kidnapping and murder was lodged by Leeladhar (PW-1) suspecting the involvement of Ramesh S/o Dashrath, Prakash s/o Gautamchand, Ramesh @ Papiya S/o Bhanwar Lal, Pannu, Inder S/o Murlidhar, Ganesh and Pappu. After the investigation and recovery, the police arrested Prakash, Ramesh @ Papia and Ramesh Khatri on 22.04.1998 and a charge sheet under Sections 302, 364 and 120-B of IPC was filed against the accused persons.
+(d) By order dated 31.01.2002 in Sessions Case No.28 of 1998, the Additional Sessions Judge, Barmer convicted all the three accused persons for the offences punishable under Sections 302, 364 and 120-B of IPC and sentenced them under Section 302, to undergo life imprisonment with a fine of Rs.5000/- each, in default of payment of fine, further to undergo rigorous imprisonment for one year, under Section 364, RI for 7 years with a fine of Rs.2000 each, in default of payment of fine, further to undergo RI for 6 months and under Section 120-B to undergo 7 years RI with a fine of Rs.2000 each, in default of payment of fine, further to undergo 6 months RI.
+(e) Challenging the order of conviction and sentence, the appellants filed appeal being D.B. Criminal Appeal No. 154 of 2002 before the High Court. By order dated 02.03.2006, the High Court dismissed the appeal filed by the appellants herein.
+(f) Aggrieved by the said order, the appellants have preferred these appeals by way of special leave.
+3. Heard Mr. Seeraj Bagga, learned Amicus Curiae for the appellants and Mr. Shovan Mishra, learned counsel for the respondent-State.
+Discussion:
+4. In the case on hand, the prosecution case rests solely on the basis of circumstantial evidence. It was contended by the learned amicus curiae for the appellants that in the absence of direct evidence, the slightest of a discrepancy, depicting the possibility of two views would exculpate the accused of guilt, on the basis of benefit of doubt. Before considering the materials placed by the prosecution and the defence, let us analyse the legal position as declared by this Court on the standard of proof required for recording a conviction on the basis of circumstantial evidence. In a leading decision of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 1984 Indlaw SC 432, this Court elaborately considered the standard of proof required for recording a conviction on the basis of circumstantial evidence and laid down the golden principles of standard of proof required in a case sought to be established on the basis of circumstantial evidence which are as follows:
+"153. 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:
+(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
+It 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 Sahabrao Bobade v. State of Maharashtra,(1973) 2 SCC 793 1973 Indlaw SC 181 where the observations were made:
+"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."
+(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,
+(3) the circumstances should be of a conclusive nature and tendency,
+(4) they should exclude every possible hypothesis except the one to be proved, and
+(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.
+154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
+5. Though learned counsel for the appellants referred other decisions, since the above principles have been followed in the subsequent decisions, we feel that there is no need to deal with the same elaborately. With the above "five golden principles", let us consider the case of the prosecution and find out whether it satisfies all the tests.
+6. The relevant and material circumstances heavily relied on by the prosecution are:
+(i) The deceased was last seen in the company of the appellants-accused.
+(ii) Recovery of incriminating articles in pursuance of the information given by the appellants.
+(iii) Motive.
+7. Learned amicus curiae for the appellants as well as learned counsel for the respondent-State took us through the entire evidence, both oral and documentary. We scrutinized the same and also considered the respective submissions made by them. Before proceeding further, it is relevant to note that among these three accused, A-1 has not challenged his conviction and sentence. The present appeals are filed by A-2 and A-3, wherein we refer the appellants which relates to A-2 and A-3 alone.
+8. The first witness examined by the prosecution was Leeladhar (PW-1) - father of the deceased. In his deposition, PW-1 deposed that he is residing at Hathidhora, near Shiv Temple, Barmer. He had two sons and one daughter. His one son died prior to the incident. His eldest son was Kamlesh, thereafter his daughter Khushbu and then youngest son Narendra. He is doing the work of light fitting. He usually goes to work at 8.30- 9.00 in the morning and returns back home at 8.00-8.30 in the night. Amongst his three children, Kamlesh used to go to School. He studied in Alesh Narayan Khatri School. On 15.04.1998, his son had gone to school at 11.30 a.m. At that time, son of Peetamber accompanied him. He further narrated that at 5.45 p.m., when he was working at the place of Cobblers, he received the news that his son Kamlesh has not come back from the school. On receipt of the said information, he went home where his wife informed that Kamlesh has not come back from the school.
+Thereafter, he went to the school and enquired from the school teacher, who told that Kamlesh had not come to school on that day. Thereafter, he enquired from all his relatives at Barmer and searched for him but could not locate him. Then he lodged a complaint with City Police Station stating that his child is not traceable. Five days thereafter at about 7 p.m. the police informed him that they found a dead body.
+Thereafter, he along with Premji Ghanshyamji went up to the hills. There is a mountain behind the Shivji temple. He was taken up to that mountain and Premji, Ghanshyamji and Moola had gone to the mountain top where the dead body was lying. On seeing the dead body, all the three came to C.I. Sahib and told that it was the dead body of his son Kamlesh.
+During night, it was not possible to lift the dead body, therefore, next morning he again went to that place and collected the dead body of his son tied in a cloth and brought the same to his home and buried it. He also stated that the right hand of the dead body was cut and the same was missing. The head of the dead body was also missing. There was a white shirt with black spots, black pant, black belt and black shoes put on the dead body. There was also a school bag with the dead body, which was of his son Kamlesh. The clothes worn on by the dead body was also of his son.
+9. He further narrated that on the second day after missing of his son, suspicion rose on Pappu who had gone to Delhi. He further explained that three months prior to the incident, Ramesh Khatri had entered into the house of Indramal Brahmin, whose house is adjacent to his house. In this regard he made a complaint to the parents of the girl as well as to the persons of the locality. The girl was of Indramal. Then Ramesh put the poison packet in the house of Indramal over the wall. Later on, the daughter of Indramal died by consuming that poison.
+Thereafter, Ramesh Khatri and Indramal Brahmin used to threaten him that they would take revenge of it and would abduct his son at the time of going to school. Three months after the said threat, they committed the murder of his son after abducting him when he was on the way to school. C.I. Sahib of police had taken away the clothes in his presence and also collected pant with black belt, a small blood smeared shit with black spot design, two shoes and socks etc. He lodged a report (Ex.P-01) with police station on the same day stating that his child did not come back home from school. He also informed the police that the dead body of his son was found five days after his missing. After conducting inquest, the police handed over the dead body of his son.
+10. The next witness relied on by the prosecution is PW-7, mother of the deceased. In her evidence, she deposed that she had three children. The name of the third child was Kamlesh. She narrated that about 14 months ago, she had sent Kamlesh to school. On the relevant date, when she was standing outside her house, the accused persons, namely, Pappu, Ramesh and Prakash present in the court were standing at the shop of Pappu. Amongst them, Pappu went to his house and brought scooter and went on the scooter in the same direction in which Kamlesh and Santosh had gone. Thereafter, she went inside her home. At the relevant time, her husband was doing the work of light fitting and he used to go to work spot at 9 'O Clock in the morning return home at 8 'O Clock in the evening. On the relevant date, when he returned home, she informed him that their son Kamlesh had not come back from the school.
+Thereafter, her husband PW-1 went in search of Kamlesh along with her brother Prem. She also narrated the incident about Ramesh that 12 months prior from the date of her missing of her son, at 11 O clock, she had seen the accused Ramesh entering the house of Indrammal which is close to her house. Ramesh had relationship with the daughter of Indrammal, namely, Pappuni. The said Ramesh used to enter their house even during night. She informed the same to Indrammal's wife. She also disclosed this fact to other neighbours. According to her, on coming to know of the said incident, Indrammal and his sister beat her for which she had lodged a complaint with the police due to which they threatened that they would take revenge of it. One month after the said incident, Pappuni died by consuming poison and, thereafter, the accused Ramesh used to quarrel with her and many times threatened her. She also reported the matter to the police. With the assistance of the local people, the matter was compromised with him. However, she complained that after compromise, her son Kamlesh was missing and subsequently murdered. She narrated the motive for killing of her son by the accused persons. She also asserted that Pappu, Ramesh and Prakash had made her son disappear and according to her, they did it on account of the death of Pappuni and thereafter, murdered her son.
+11. Apart from the evidence of PWs 1 and 7 with regard to the last seen theory, prosecution examined three persons, namely, Moolchand (PW-3), Gautam Chand (PW-4) both are goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has stated that he was known to Leeladhar, Ramesh and Prakash. He further stated that on the date of the incident, in the afternoon at about 12 he had seen all the accused persons moving towards Panchpati Circle Road on a scooter. He had also seen the son of Leeladhar sitting in between the three accused persons on the scooter. Gautam Chand (PW-4), who is also a goldsmith, in his evidence has stated that on the date of the incident at about 12.15 he had seen the accused moving in a scooter along with the small boy. Though both PWs 3 and 4 did not identify the accused persons in the identification parade, in view of their assertion, we are satisfied that the prosecution has succeeded in establishing the circumstance of last seen theory.
+12. The next witness relied on by the prosecution to support the last seen theory is Bijlaram (PW-10). In his evidence, he stated that on 15.04.1998, he had gone to Sujesar Hillock for collecting firewood. While he was returning on Gelu Road, he saw the accused along with a boy moving towards the Hillock. The boy was wearing black pant and white shirt and black shoes. He further narrated that all the three accused and the child moved towards the Hillock. He identified all the accused in the Court. He also admitted that he was known to all the three accused persons and the child. He was cross-examined at length but nothing was elicited disproving his statement relied on by the prosecution. The prosecution very much relied on by PWs 3, 4 and 10 to prove the last seen theory and the courts below rightly accepted their version.
+13. The analysis of the above evidence discussed so far clearly show that the prosecution has succeeded in establishing that the relations betweens the family of Leeladhar and the appellants-accused were hostile. In fact, Ramesh Khatri, one of the accused had threatened Leeladhar and his wife of finishing their family. We are satisfied that the prosecution has proved motive on the part of the appellants for committing the murder of Kamlesh, son of PWs 1 and 7.
+14. It is true that counsel appearing for the appellant pointed out the discrepancy in the evidence of PWs 11, 12, 16 and 21 about the condition of the dead body. It is relevant to point out that these prosecution witnesses are villagers and further the body was recovered only on 20.04.1998 whereas the incident occurred on 15.04.1998. In fact, PWs 9 and 11 cattle grazers have deposed that the dead body was partly eaten by dog.
+In view of the same, merely because the prosecution witnesses were not consistent in describing the dead body of 14 year old boy, the entire prosecution case cannot be disbelieved.
+15. In the course of investigation and in pursuance of the information given by A-1, pant and shirt stained with blood of Ramesh were recovered from his house in the presence of PWs 21 and 23. The pant and shirt were seized and sealed in a packet marked as S-8. It is further seen that as per FSL report, Exh.P-86, the presence of blood on the pant and shirt are of human origin.
+16. In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion that it was the appellants/accused who kidnapped and committed the murder of the deceased Kamlesh.
+We are satisfied that the trial Court has rightly accepted the prosecution case and awarded life sentence which was affirmed by the High Court. We fully concur with the said conclusion. Consequently, the appeals fail and the same are dismissed.
+Appeals dismissed

Object_casedocs/C1034.txt

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+Amita v Union of India and Another
+Supreme Court of India
+
+11 August 2005
+Writ Petition (Civil) 31 of 2000
+The Judgment was delivered by : Tarun Chatterjee, J.
+1.  Pursuant to an advertisement issued at the instance of the Banking Services Recruitment Board, Chennai ( in short "the "Board") in the Employment Newspaper dated 9-15th October, 1999 inviting applications for the post of Probationary Officers in Indian Overseas Banks, the Writ Petitioner, who is a visually handicapped lady, applied for the said post. The requisite qualifications for eligibility were:
+(a) A degree from a recognized University or any qualification recognized as equivalent by Government of India.
+(b) Not below 21 years and above 30 years.
+2.  It is not in dispute that the writ petitioner fulfilled both the requirements. The writ petitioner had sent her application along with a demand draft. While filling up the said application form, the writ petitioner mentioned that she was a blind candidate so that the Board could make adequate arrangement of a scribe for her during the entrance test as is normally done. Unfortunately, the application of the writ petitioner for writing the examination, as stated above, was returned with the following order:
+"As we do not recruit blind candidates for the post of Probationary Officers, your application is rejected."
+3.  As against this order and also for other reliefs, the writ petitioner has filed this writ application under Article 32 of the Constitution of India. After the Writ Petition was moved by the writ petitioner, on her prayer, the writ petitioner was allowed to amend the writ application in which she claimed additional reliefs which are as follows:
+(a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to hold the entrance examination for the benefit of the petitioner under the advertisement dated 9-15th October, 1999 issued in Employment Newspaper.
+(b) Issue a writ of declaration or any other appropriate writ, order or direction declaring that the denial of opportunity to contest under general category to the visually disabled person to the post of Probationary Officer is violative of fundamental rights enshrined under Art.14, 16, 19(g) and 21 of the Constitution.
+(c) Issue a writ of mandamus or an appropriate order or direction calling upon the respondents to show the steps taken by them under sections 32, 33,38,42 and 47 of "The Persons with Disabilities (Equal Opportunities etc.) Act 1995" (hereinafter in short "The Act of 1995).
+4.  On behalf of the writ petitioner, Ms. Neeru Vaid contended that the order passed by the Board rejecting the application of the writ petitioner on the ground that since the writ petitioner being a visually impaired lady could not be recruited in the Bank for the Post of Probationary Officers, was erroneous on its face as in the advertisement the requirements of the Board were only to the extent that a candidate should not be less than 21 years and not above 30 years and he or she should be a Graduate. It was also argued that denial of opportunity to sit and write the examination in question also violated Articles 14 & 16, 19 & 21 of the Constitution of India. On the other hand, the learned counsel for the respondent urged that since the post of Probationary Officer was not earmarked for visually impaired persons the rejection of the application of the writ petitioner was valid.
+5.  Having heard the learned counsel for the parties and after going through the materials on record, we are of the view that the order passed by the Board rejecting the application of the writ petitioner on the aforesaid ground cannot be sustained. As noted hereinearlier, the requirements asked for by the Board for writing the examination for appointment to the post of Probationary Officer in the Bank were that a candidate shall not be less than 21 years and not above 30 years and that the candidate must possess a Graduation degree. There is no dispute that the writ petitioner has satisfied the aforesaid two conditions. That apart, the writ petitioner although being a visually impaired lady had applied to write the examination for the post of Probationary Officer of the Bank as a general candidate and therefore we do not find any reason why such opportunity to write the examination should be refused by the Board. That apart, we find that the writ petitioner had also applied to B.S.R.B. Bangalore for the same post. There she had mentioned the fact of her disability on the application form and inspite of informing the Board she had received the admit card for the entrance test which was held on 20th February 2000 and such grant of admit card would clearly show that the writ petitioner could not be thrown out on the ground that she was visually impaired lady, who could not be allowed to sit and write the examination for the post of Probationary Officer in the bank.
+6.  This question is, however, concluded by a decision of this Court in National Federation of Blind Vs. Union Public Service Commission & Ors. (1993) 2 SCC 411 1993 Indlaw SC 247 which was rendered on a writ application filed for direction for permission for the visually impaired persons to compete and write Civil Services Examination and also for being given preferencial treatment in respect of the identified post. It is also important to mention that the said decision of this Court in National Federation of Blind Vs. Union Public Service Commission & Ors. 1993 Indlaw SC 247 also observed as follows:
+"The question of giving preference to the handicapped in the matter of recruitment to the identified posts is a matter for the Government of India to decide. The matter is pending for decision with the Government of India for the last several years. While appreciating the handicapped persons we commend the Government of India to decide the question of providing preference/reservation to the handicapped in Group A and B posts as expeditiously as possible.."
+7. Again at Page 416 of the said decision of this Court it observed as follows:
+"The list of category A & B posts identified as suitable for the visually handicapped by the committee includes number of posts which are filled as a result of the civil services examination. When there are posts to which blind and partially blind can be appointed, we see no ground to deprive them of their rights to compete for those posts along with other candidate belonging to general category."
+8.  Finally this Court directed the authorities to permit the visually impaired persons to compete the Civil Services Examination. While appreciating the handicapped persons this Court commended the Government of India to decide the question of providing preference/reservation to the handicapped in Group A & B posts as expeditiously as possible. This Court in the aforesaid decision also observed that the list of jobs identified by the committee as suitable for being held for physically handicapped persons was not exhaustive and that the Ministries/Departments can further supplement the list based on their knowledge for jobs requirements, essential qualifications etc.
+9.  From the aforesaid decision of this Court, it would also be clear that the only restriction which can be spelt out from the ratio of that decision was whether the post in respect whereof the petitioner sought consideration was whether the post is liable to be considered as totally unsuitable for visually handicapped person having regard to the nature of duties attached to the office/post. (Emphasis supplied)
+10.  From the aforesaid observations of this Court, we are confident that the visually impaired candidate would be entitled to sit and write the examination for selection for the post of Probationary Officer in a Bank but only restriction that would be standing in the way of the writ petitioner for selection is that the nature of duties attached to the office/post would be unsuitable for the visually impaired candidate. Accordingly, we are of the view that the order passed by the authorities rejecting the application of the writ petitioner on the ground shown in the order was erroneous, illegal and invalid in law and therefore cannot be sustained. In any view of the matter, so far as prayer for permitting the writ petitioner to sit and write the examination for the year in question of which rejection order was passed, in our view, the Writ Petition had rendered infructuous as it is now an admitted position that the examination for selection in the post of Probationary Officer in the Bank of the year in question was held, result was subsequently published and the vacancies were duly filled in by making appointments on the basis of such selection of candidates. In view of the other reliefs prayed by the writ petitioner in the amended Writ Petition, the question now needs to be decided is whether the writ petitioner being a visually impaired lady would be allowed to sit and write the forthcoming examination for the post of Probationary Officer and can be appointed in such post, in view of nature of duties attached to a Probationary Officer. As found herein earlier, it cannot be doubted that a visually impaired candidate is entitled to sit and write the Probationary Officer examination along with other general candidates where any post is not earmarked for handicapped persons, as a general candidate.
+11.  Taking our findings, as made herein earlier to the extent that the writ petitioner was entitled to sit and write the examination for selection of Probationary Officer in the Bank, let us now proceed to consider whether the writ petitioner would be entitled for appointment in the post of Probationary Officer of the Bank in question, if successful in the written examination in view of the nature of the job to be performed as Probationary Officer. Before we deal with this aspect of the matter, we may take into consideration yet another aspect of the matter, namely, whether denial of permission to the writ petitioner to sit and write the examination for the post of Probationary Officer in the Bank offends Articles 14 and 16 of the Constitution of India. Article 14 of the Constitution of India guarantees to every citizen of India the right to equality before the law or the equal protection of law. The first expression "equality before the law" which is taken from the English common law, is a declaration of equality of all persons within the territory of India, implying thereby the absence of any special privilege in favour of any individual. It also means that amongst the equals the law should be equal and should be equally administered and that likes should be treated alike. Thus, what forbids is discrimination between persons who are substantially in similar circumstances or conditions. It does not forbid different treatment of unequal. Article 14 of the Constitution of India is both negative and positive right. Negative in the sense that no one can be discriminated against anybody and everyone should be treated as equals. The latter is the core and essence of right to equality and state has obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled as a human being. Therefore, Art.14 contemplates reasonableness in the state action, the absence of which would entail the violation of Art.14 of the Constitution.
+12.  In our view, and in view of the discussions made herein earlier, in the facts and circumstance of this case, Art.14 was infringed for denial of permission to the petitioner to sit and write the examination for selection of Probationary Officers. As noted herein earlier, writ petitioner was not allowed to sit for the competitive examination for the post of the Bank Probationary Officer on the ground that she was visually impaired candidate although the advertisement in the newspaper did not disclose that a visually impaired candidate cannot be allowed to sit and write the examination as the nature and duty of the job were not suitable for the visually impaired candidate. It is not in dispute that the writ petitioner had qualified for the post of Bank Probationary Officer as per the advertisement. Statement has been made in the writ petition by the writ petitioner to the effect that the writ petitioner like other visually impaired persons can perfectly perform the job of a Probationary Officer. She also applied for the same post to the B.S.R.B. and received her admit card for the same. Thus, there is discrimination by the respondent No.2 between the writ petitioner and persons who are substantially in similar circumstances or conditions. Here the writ petitioner was not allowed to sit for the entrance examination and hence was discriminated against the others who qualified for the same entrance examination. Therefore. the rejection of the application by the respondents besides the ground already stated hereinearlier, was not on reasonable grounds and was arbitrary and violative of Art. 14 which is a fundamental right of every citizen to be treated equally. In this connection, it is stated by the writ petitioner that a visually impaired lady Ms. Nafisa is now functioning as a Probationary Officer in one of the Central Bank of India situated at Bombay. Under Art.16 of the Constitution the general rule laid down is that there should be equal opportunity for citizens in matters relating to "employment" or "appointment to any office" under the State. The expression "matter relating to employment or appointment" includes all matters in relation to employment both prior and subsequent to the employments which are incidental to the employment and form part of the terms and conditions of such employment. Therefore, under Art.16 of the Constitution what is guaranteed is the equal opportunity to all persons. This Clause accordingly does not prevent the state from laying down the requisite qualifications recruitment for government service, and it is open to the authority to lay down such other conditions of appointment as would be conducive to the maintenance of proper discipline among government servants. Like other employers, government is also entitled to pick and choose from amongst a large number of candidates offering themselves for employment. But this can only be done only on one condition that all applicants must be given an equal opportunity along with others who qualify for the same post. The selection test must not be arbitrary and technical qualifications and standards should be prescribed where necessary.
+13. In this case, in our view, there is violation of the right of the writ petitioner under Art. 16(1) which provides for general rule, that there should be equal opportunity for citizens in matters relating to "employment" or "appointment to any office" under the State, matters incidental to employment both prior and subsequent to the employments which form part of the terms and conditions of such employment. In this case, the writ petitioner was in the first instance denied equal opportunity as given to other applicants from appearing in the entrance examination on the ground of disability which was not mentioned as a condition in the advertisement. That apart, the writ petitioner, although a visually impaired lady had not asked for any special favour for the post of Probationary Officer for selection in the post of Probationary Officer. The writ petitioner without asking for any favour had only applied for writing the examination for selection not as a reserved handicapped candidate but along with general candidates who were allowed by the Board to sit and write the examination. Since the writ petitioner was similarly situated with other general candidates, and the writ petitioner had not asked for any advantage for being a visually impaired candidate, we failed to understand why she was not permitted to sit and write the examination for the post of Probationary Officer in the Bank..
+14.  At the risk of repetition, it may be reiterated that writ petitioner fulfilled all the conditions mentioned in the advertisement for the post. The primary object which is guaranteed by Art. 16(1) is equality of opportunity and that was violated by the Board by debarring the writ petitioner from appearing in the examination on the mere fact of disability which was not mentioned in the advertisement and which according to the writ petitioner is not an impediment for the post. We are therefore of the view that the action of the Board was arbitrary, baseless and was in violation of the right of the writ petitioner under Art. 16(1) of the Constitution. Further discussion on violation of Articles 19 and 21 of the Constitution would not be necessary in view of the stand taken by the authorities in their written submissions, affidavits and rejoinder affidavits filed on different dates.
+15.  Let us now consider whether the writ petitioner was entitled to be selected and appointed as Probationary Officer in the Bank in view of the nature of duties to be performed by her as Probationary Officer.
+16.  Before we take up this question for decision we keep it on record that this petition under Art. 32 of the Constitution was entertained by this Court on 8th May 2000. This Court granted four weeks time to the respondents to file a counter affidavit. However, pending hearing of the writ petition, this Court passed an interim order to the effect that in the meantime, if all the posts were not filled up, one post shall not be filled up till further orders from this Court. Subsequently, on 1st August 2000 counter affidavit was filed by the Board in which it was, inter-alia, stated that the post of Probationary Officer was not identified for the "Blinds" under the Notification of the Department of the Personnel and Training dated 25th November 1986. The Board also in their counter affidavit stated that the reason for rejection of the application of the writ petitioner was due to the fact that the posts of Probationary Officers were not identified posts for visually handicapped candidates. In the counter affidavit, the Board had relied on a Circular issued by the Govt. of India, Department of Personnel and Training O.M. No.F. 36034/4/ESTT.(SCT) dated 25th November 1986 which identified post of General Banking Officer as suitable only for the following 4 categories:-
+a. BL-Both legs affected but not arms
+b. OS-One arm affected (R or L)
+c. OL-One leg affected (R &/OL)
+d. MW- Muscular weakness and limited physical endurance.
+17.  In view of the above and in view of the assertions made by the Board in their counter affidavit regarding the capability of a blind person to serve the post of Probationary Officer in the Banks, it was stated that the application of the writ petitioner who being a visually impaired candidate was rightly rejected by the Board. That apart, it was specifically stated in the counter affidavit that the nature of job of a Probationary Officer demands performance of various types of jobs under different Departments like Savings Bank and Current Account, other term deposits, collecting and clearing (inward and outward Bills), Cash counter and recounting of currency notes and remitting excess cash balance. It was further asserted by the Board that various duties and responsibilities of an officer in the above departments were only illustrative and not exhaustive, and that it was expected of a Probationary Officer to make himself/herself available for the services of the Bank as per the exigencies of service. Apart from that, the function of the Bank has now become far more varied and diversified with the advent of liberalization of economy, so that the duties and functions of a Bank Officer have become more complicated, complex and difficult requiring greater alertness, presence of mind and maximum utilization of all his/her physical and mental facilities. In the counter affidavit, the Board also categorically has stated that the job of a Probationary Officer is not a specialist officer's job and a Probationary Officer is also transferred from one station to another during his/her tenure. The officer in Savings Bank Account/Current Account Department is required to verify the specimen signature of the customers while passing cheques for payment. At the same time the Probationary Officer concerned should also know the customers who come to Bank on and off for transacting business and that it would not be possible for a blind officer to get to know about the customers and verify their signatures for day-to-day banking transactions. According to the respondents, and considering all these patent impediments and constraints the Government of India did not identify the post of Probationary Officers for "Blinds". Subsequently a written submission was filed by the respondent No.1 Union of India in which it has been clearly stated that the scheme of reservation to physically handicapped persons has been in vogue in respect of Group C & D employees in the Central Government Services. This policy has also been extended to Public Sector Banks. However, there was no such reservation in Group B and A services of the Central Government. Accordingly, there was no reservation for physically handicapped persons including visually handicapped in any of the post under the officers category in Public Sector Banks till the enactment of the Act 1995 which came into force from January 1996. The then Ministry of Welfare which is now renamed as Ministry of Social Justice and Empowerment had identified various posts in Group C & D in which reservation to physically handicapped candidates, namely, Orthopaedically handicapped, hearing impaired and visually handicapped for recruitment should be provided on percentage basis. In spite of this stand, there was no reservation in Group A & B services at that stage. As noted herein earlier, it was brought to the notice of this Court by the respondent No.1 in their written submission that the post of General Banking Officer could be identified as suitable for the following four categories under the Orthopaedically handicapped category.
+a. BL Both legs affected but not arms
+b. OA One arm affected (R or L)
+c. OL One leg affected (R or L)
+d. MW Muscular weakness and limited physical endurance.
+18.  From the written submission it would also be evident after the introduction of reservation to persons with disabilities under the Act 1995, the Ministry of Social Justice and Empowerment had advised all the Government Departments to provide reservation in the posts in Group A and B which were identified as suitable for a particular category of physically handicapped as per list provided by them earlier in 1996. A committee was set up by the Ministry of Social Justice and Empowerment for fresh identification of various posts in Group A & B in which reservation should be provided to different categories of disabled persons. It was the further case of the Union of India in their written submission that the post of Probationary Officers for which entrance tests are conducted by different BSRB including the Board are the posts which are identified as a suitable post only to Orthopaedically handicapped persons of the description as noted above. Thus, neither visually handicapped nor hearing impaired was suitable for the post of General Banking Officers.
+19.  According to the Board, the reason behind such identification was that a Banking Officer working generally in the branches and other public offices are required to verify the legal documents including cheques, drafts,bankers cheques etc. and such officers have to have close interactions with the public members, senior officials of the organization as well as various public institutions etc. For the aforesaid reason a person of visual deficiency may not prove to be effective and likely to commit losses to the institutions as well as public money.
+20.  On 30th November 2000, this Court granted six weeks time to the learned Solicitor General for filing the necessary order and passed the following order:
+"the learned Solicitor General appears and submits that keeping in view humane aspects of the problem, he would examine and discuss the matter after summoning concerned officials and file an affidavit by the next date indicating such posts as in the Banking Division of the Ministry of Finance where visibly handicapped candidates may be considered for appointment. He also submits that he would impress upon the concerned ministry to take steps for revision of the list which was formulated as early as in 1986." ( underlining is ours )
+21.  The writ petitioner on 23rd December 2000 filed an additional affidavit to bring certain additional facts before this Court. The petitioner pointed out that she was undergoing an advanced diploma course in computer application and access technology. This course would enable her to use computer as an effective tool for reading hard copy printed text, to create and edit documents, to browse the web and send mails in general to use the computer for any general or customized software independently. The petitioner also brought to the notice of this Court that the National Association for the Blind also recommended for identification of category A & B posts for the visually challenged persons in the Nationalised Banks including State Bank of India and Reserve Bank of India to the standing committee for identification of jobs for the handicapped, Department of Personal & Training. The association had brought to the notice of the committee that "visually handicapped persons in the absence of sight are suitably trained to develop their auditors, tactile and kinesthetic senses and are imparted by knowledge by training in computers, Braille and mobility. The specialized training helps them to develop complete personality with good communication skills and socially desirable mannerism whereby they can optimally utilize their mental faculty to take decision in policy matters and discharge of duties that may be assigned to them." The association also quoted examples of various visually disabled persons working in the managerial classes and after careful consideration has recommended list of posts which can be identified (like Faculty Member/Training Manager, Administrative Officials, Economic Affair Officers, Raj Bhasha Adhikari/Hindi Officer, Law Officer etc.) for the visually handicapped persons in the Nationalised Banks.
+22.  The writ petitioner also pointed out that by an order dated 7th August 2000 of the Chief Commissioner of Disabilities in Case No. 7/1999 Rajni Kant Bansal v. General Manager, Union Bank of India wherein the Bank modified its recruitment and promotion policy to bring it in alignment with the Persons with Disabilities Act, 1995 and resolved that one percent of the posts be reserved for the visually handicapped from clerical cadre to Officer Cadre. On 5th June 2001, this Court passed the following Order:
+"This is a typical case showing how the laudable object with which the Parliament enacted Disability (Equal Opportunities and Protection of Rights and Full Participation) Act, 1995 and framed rules 1996 is being frustrated by non-implementation of that Act by the concerned authorities. The list drawn up in 1986 was sought to be revised and we are informed by the learned Solicitor General that an Expert Committee was constituted to revise the 1986 list in 1998. It was re-constituted in July 1999. The reconstituted committee also did not submit its report and about three months after its constitution it formed up three sub-committees, which also seem to have done nothing so far.
+We are pained and distressed at this apathy being shown towards the unfortunate disabled and handicapped. The attitude of indifference causes us concern.
+We direct and hope that within two months the sub-committees would submit their report and within three months from this date, the Expert Committee would furnish the revised list to the Government that shall be placed in record in the Court."
+23.  On 20th April 2001 this Court granted the prayer of learned Solicitor General when he submitted that the reconstituted Expert Committee has already submitted its report on 3/3/2001 and as a result thereof many categories have been added in the list pertaining to Groups A,B,C and D posts and this Report has been sent to the concerned Ministry for consideration and that within six weeks he shall be in a position to place the copy of the report together with the follow up action taken by them on the affidavit.
+On 25th January 2002 this Court passed the following order:
+"The response from the Union of India is not forthcoming. In view of the earlier adjournments granted, we give a last opportunity of two weeks on a prayer made by the learned counsel for the Union of India subject to the payment of Rs.10,000/- (payable Rs.5,000/- to petitioner and Rs.5,000/- to Supreme Court Legal Services Committee) by way of costs. In the event of a response forthcoming in two weeks positively, costs shall stand waived."
+24.  Subsequent to this another affidavit was filed by the Union of India on 8th February 2002 in which it has been stated that the Ministry of Social Justice and Empowerment of the Government of India in pursuance of provisions of section 32 of the said Act 1995 had constituted an Expert Committee on 2nd July 1999 under the Chairmanship of the Additional Secretary, Ministry of Social Justice and Empowerment to identify/review the posts in Group A, B, C and D to be reserved for the Persons with disabilities in its Ministries/Departments and Public Sector Undertakings.
+25.  In this affidavit, the Union of India has further stated that due to the order of this Court dated 5th January 2001 which directed the Government to do the needful within three months, the Expert Committee had finalized its report by holding proper consultation with all concerned like The Indian Banks Association and submitted its report on 3rd March 2001. In this affidavit the Union of India for the first time has come forward to say that the post of Probationary Officer Grade "A" has also been included in the posts identified as suitable for the blind by its committee. This report was circulated to all Central Ministries/Departments to obtain their comments on the recommendations/posts identified by the Expert Committee. But before the responses could be received or attended as there was an urgency to notify the report of the Expert Committee to enable the persons with disabilities to avail of the benefits of reservation against the newly identified posts, the Government notified the report by Notification dated 31st May 2001. The Ministry of Social Justice published the recommendation of the Expert Committee in the Gazette on 30th June 2001. It was further alleged that while the committee agreed that the work can be performed by one who can see, read and write, the job (Probationary Officer "A") has been identified as suitable for the blind or persons with low vision. But the Indian Banks Association pointed out all jobs of officers in Public Sector Banks cannot be performed by the visually handicapped persons and they suggested that only a few of jobs like officer (Marketing), Officer (Publicity ) can be performed by the visually handicapped persons.
+26. Another affidavit on behalf of Union of India was also filed which states that the post of Probationary Officer Grade "A" has been identified as suitable for the visually handicapped for the first time by a Notification dated 31st May 2001 and published in the Gazette dated 30th June 2002.
+On 2nd May 2002 this Court passed the following order:
+"To protect the interest of the petitioner it is directed that the time spent during these proceedings shall be excluded while calculating the upper age limit prescribed for appointment on any post to which the petitioner may be found eligible at the end Looking to the importance of the matter we think it would be proper if the hearing is taken up by a three Judge Bench .we request the learned Solicitor General to assist the Court and in case it is not convenient for him to do so then any learned Additional Solicitor General may be instructed by him to assist the Court "
+27. Finally on 22nd December 2004 the written submission was filed on behalf of the Union of India in which it has been stated that any discrepancies observed in the list identified posts will be rectified during the review of the list proposed to be done shortly and proposal is under active consideration. It was further stated that the writ petitioner being a visually impaired candidate has to either appear in the examination for selection under the reserved category or she can appear with the general candidates. It was further clarified that if she wants to appear as a general category candidate then she has to compete with the general category candidates only and she cannot be given any weightage as the same would amount to discrimination to others competing with her in the said category. It further clarified the position that OM No. 36035/4/2003-Establishment dated 8.7.2003 provided that the vacancies reserved for any category need to be filled by persons belonging to that category and such vacancies are not open to others. On the other hand, unreserved vacancies are open to all and reserved category candidates cannot be denied the right to compete for appointment against such vacancies, provided they are otherwise eligible. (underlining is ours )
+28.  In view of this specific stand taken by the Union of India in their written submission and affidavits as detailed hereinearlier,by which the Union of India has categorically stated that a visually impaired candidate would be entitled to write the examination and compete the same along with other general candidates as if she was a general candidate in the said examination and in the event he/she wants to compete the examination on reserved category in that case also he/she will be entitled to sit as a reserve candidate in the said examination when some percentage of the posts are earmarked for visually impaired candidates. It is needless to say that the Union of India and Bank Authorities have therefore admitted that the nature of duties of a Probationary Officer can be performed by a visually impaired candidate and some percentage of impaired candidates are entitled for being selected and appointed as Probationary Officers of the Bank either from the general category or from the reserved category.
+29.  In view of the specific orders passed by this Court pending hearing of the writ petition and considering the fact that this writ petition was pending for more than a period of four years, age restriction, so far as the writ petitioner is concerned, shall stand relaxed.
+Accordingly, the writ application is disposed of in the following manner:
+(1) If the writ petitioner chooses to appear as a general candidate to sit and write any forthcoming examination as a Probationary Officer of the Bank, she will be entitled to do so.
+(2) If selected, she may be appointed as Probationary Officer subject to her satisfying the other terms and conditions for appointment in the said post.
+(3) If the writ petitioner writes the examination as a reserved candidate that is to say on the visually impaired seat, if there be any, and she succeeds in the said examination, she can be appointed on such reserved category in the event percentage of Probationary Officer's post is kept reserved for visually impaired candidate by the respondents.
+30.  In the facts and circumstances of the case, there will be no order as to costs.
+Appeals disposed of

Object_casedocs/C1035.txt

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+Choudhary Jawaharlal and Others v State of Madhya Pradesh
+Supreme Court of India
+
+30 October 1969
+C.A. No. 97 of 1966
+The Judgment was delivered by : Hon'ble Justice P. Jaganmohan Reddy
+1. This appeal is by certificate granted by the High Court of Madhya Pradesh u/art. 133 (i) (a) of the Constitution of India against its judgment and decree by which it reversed the judgment and decree of the Addl. District Judge, Ambikapur. The High Court held that the claim of the appellant on the promisory note executed by the Maharaja of Surgujaan erstwhile Ruler whose state was merged in Madhya Pradesh, could not be enforced against the Ist Respondent the State of Madhya Pradesh because after the cession of the erstwhile State, the new State had not expressly or impliedly undertaken to meet that liability. In other words, the plea of 'an act of 'State' raised by the 1st respondent was accepted.
+2. The circumstances in which the suit was filed by the appellants and the array of parties may now be stated. Appellants 1, 2, 3 and deceased Hira Lal were brothers and members of a Joint Hindu family. Appellant 4 is the wife of Hira Lal, appellants 5 to 7 are his sons and appellant 8 is the grand-son. All these appellants along with appellants I to 3 constitute a Joint Hindu family which was carrying on business of construction of buildings under the name and style of Hira Lal & Bros. at Ambikapur in the erstwhile State of Surguja. The allegations in the suit filed by the appellant against the respondent State was that they had constructed buildings of the District Court and the Secretariat at Ambikapur in 1936. The work was completed but in so far as payment was concerned, there was a difference of opinion about the measurements etc. but ultimately it was decided to pay to the appellants Rs. 80,000 on account of the said construction and accordingly the Maharaja of Surguja-2nd respondent executed a promisory note in favour of the appellants on 27-9-1947 for Rs. 80,000 with interest @ Rs. 3 per annum. Thereafter the Madhya Pradesh Government took over the administration of the State of Surguja on 1-1-48 after the merger of the Chattisgarh State and consequently the Court building as well as Secretariat building.were taken possession of by the Government. When the appellants claimed the money from the State of Madhya Pradesh, it neither accepted the claim nor paid them. The appellants after giving a notice u/s 80 of the Code of Civil Procedure filed a suit.
+3. On the pleadings, the Trial Court had framed several issues but it is unnecessary to notice them in any great detail except to say that the claim of Rs. 80,000 was held to be valid, that this amount was payable on account of the construction of the build, things known as Court, and Secretariat buildings, that the promote was not without consideration, that the first defendant was the successor in interest of Surguja State and is liable to pay the claim with interest and that the amount was not due to the plaintiffs on account of the personal obligation and liability of the 2nd respondent. The Court also found against the first respondent on the issue relating to jurisdiction and negatived the defence that it is not liable because of an act of State. In so far as the defendant the Maharaja of Surguja was concerned, it held that the suit was not maintainable against him without the consent of the Central Govt. as required u/s. 86 of the Civil Procedure Code and that the liability was not a personal obligation of the Maharaja but an obligation" incurred on account of his State.
+4. In the result as we said earlier the Court awarded a decree for Rs. 87,200 with full cost against the first defendant and discharged the second defendant. In appeal the High Court noticing that it is the admitted case of the parties that the District Court and the Secretariat building were public property and were in the possession of the first defendant as such and that that the liability in respect thereof was incurred by the Maharaja was not merely his personal liability but was a liability incurred on behalf of the State of Surguja, however, reversed the judgment of the Trial Court by holding "the the liability of the State of Surguja under the pronote was at best a contractual liability and this liability could only be enforced against the State of Madhya Pradesh if after the cession of the erstwhile State of Surguja, the new State had expressly or impliedly, undertaken to meet that liability" which it had not done. When this appeal came up on an earlier occasion, a Civil Miscellaneous Petition 429 of 1969 was filed by the appellant; that inasmuch as the petitioners had been advised to approach the State Govt. again for making proper representation and to canvass their claim before the appropriate authority on the basis of the concurrent findings of the Courts below and or any other appropriate orders, permission may be accorded to them to pursue this course. The Respondents advocate did not oppose this petition and accordingly the matter was adjourned. But it would appear that no concrete results could be achieved. In this appeal what we have to consider is whether the plea of an act of State is sustainable having regard to the concurrent findings of the Court namely that the Court and Secretariat buildings were constructed by the appellants, that the erstwhile Maharaja the second respondent had admitted the claim and executed a. promisory note, that the liability was incurred in respect of public buildings for which the State of Surguja was liable. The fact that appellants were asked to supply details of their claim and the first respondent was prepared to consider it has been urged as being tantamount to the acceptance of the liability. In our view no such inference can be drawn. It is open to the State to examine and to satisfy itself whether it is going to honour the liability or not, but that is not to say that it had waived its defence of an act of State if such a defence was open to it. What constitutes an act of State has been considered and the principles enunciated in numerous cases both of the Privy Council and of this Court have been stated. Many of these, decisions were examined and discussed by the High Court in its judgment and it is unnecessary for us to re-examine them in any great detail. These decisions lay down clearly that when a territory is acquired by a sovereign state for the first time that is an act of State. As pointed out in Raja Rajender Chand v. Sukhi & other that it matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. The principle upon which the liability of an erstwhile ruler is contested by the plea of an act of State "is an exercise of sovereign power against an alien and neither intended nor purporting to be legally founded. A defence of this kind does not seek to justify the action with reference to the law but questions the very jurisdiction of the Courts to pronounce upon the legality or justice of the Action's vide State of Saurashtra v. Memon Haji Ismail 1959 Indlaw SC 230. In Vaje Singh Ji Joravar Singh and others v. Secretary of State for India in Council('), it was observed :
+"After a sovereign State has Acquired territory, either by conquest, or by cession under treaty, or by the occupation of territory theretofore unoccupied by a recognized ruler, or otherwise, an inhabitant of the territory can enforce in the Municipal Courts only such proprietary rights as the sovereign has conferred or recognized. Even if a treaty of cession stipulates that certain, inhabitants shall enjoy certain rights that gives them no right which they can so enforce. The meaning of a general statement in a proclamation that existing rights will be recognized is that the Government will recognize such rights as upon investigation it finds existed. The Government does not thereby renounce its right to recognize only such titles as it considers should be recognized, nor confer upon the Municipal Courts any power to adjudicate in the matter".
+"It is the acceptance of the claim which would have bound the new sovereign State and the act of State would then have come to an end. But short of an acceptance, either express or implied, the time for the exercise of the Sovereign right to reject a claim was still open".
+5. It appears to us that an act of State is an exercise of sovereign power over a territory which was not earlier subject to its sway. When such an event takes place, and the territory is merged, although sovereign might allow the inhabitants to retain their old laws and customs or undertake to honour the liabilities etc., it could not be itself bound by them until it purported to act within the laws by bringing to an end the defence of 'act of State'.
+6. The learned advocate for the appellant was unable to refer us to any authority which will justify any variation of this rule, in the case of liability incurred in respect of a public property of the erstwhile State which the successor State has taken over and retains as part ,of its public property. The judgment of the High Court is in accord with the well recognized principles of law declared from time to time by this Court. In our view the defence of 'Act of State' however unreasonable and unjust it may appear to be can be successfully pleaded and sustained by Ist respondent to non suit the appellants. The appeal is dismissed accordingly but without costs.
+Appeal dismissed.

Object_casedocs/C1036.txt

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+Kasambhai Ardul Rehmanbhai Shaikh v State Of Gujarat & Anr.
+Supreme Court of India
+
+13 February 1980
+CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 93-94 of 1980. Appeals by special leave from the Judgment and order dated 30-1-1979 of the Gujarat High Court in Criminal Revision Application No. 306/78 and 305/78.
+The Judgment was delivered by : P. N. Bhagwati, J.
+1. This appeal by special leave is directed against a judgment of the Gujarat High Court in suo motu revision against an order passed by the Judicial Magistrate, First Class, Balasinor convicting the appellant of the offence under s. 16(1)(a)(i) read with s. 7 of the Prevention of Food Adulteration Act, 1954 and sentencing him to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. 125/ or in default to undergo simple imprisonment for a further period of 30 days. The appellant was prosecuted in the Court of the learned Magistrate for an offence of adulteration of turmeric powder punishable under s. 16(1)(a)(1) read with s. 7 of the Prevention of Food Adulteration Act, 1954.
+2. It appears from the record that after some evidence was led on behalf of the prosecution, plea bargaining took place between the prosecution, the defence and the learned Magistrate and on the basis of an understanding arrived at between these three parties, the appellant pleaded guilty and the learned Magistrate accepting this plea of guilty, recorded a finding of conviction against the appellant and let off the appellant with a nominal sentence of imprisonment till the rising of the Court and a small fine. It is, of course true that there is no specific evidence to show that the plea for guilty was entered by the appellant as a result of plea bargaining, but two circumstances, viz.,
+(1) that the appellant pleaded guilty, even though the sample was treated as cancelled by the public Analyst on account of its being broken and leaking and there was no evidence of the report of the public Analyst showing the sample as adulterated and
+(2) that the judgment of the learned Magistrate was given in a cyclostyled form, clearly lead to the inference that the plea of guilty was entered by the appellant in consequence of an assurance held out by the prosecution and acquiesced in by the learned Magistrate that he would be let off with a very light sentence.
+3. It is highly regrettable that the prosecution as well as the learned Magistrate should have been a party to any such plea bargaining in a prosecution for adulteration involving the health and well being of the community. Unfortunately, in our country adulteration has assumed alarming proportions and it is absolutely essential to wipe it out ruthlessly and completely by bringing to book offenders responsible for adulteration resulting in ruination of the health of the people. The investigating agencies must intensify their efforts and catch hold of those who for some private economic gain are prepared to jeopardize the health of the community and indulge in mass murder and when such persons are arraigned before the Court and found guilty a really deterrent and punitive sentence must be imposed upon them. If it comes to be known that even in respect of an offence of adulteration, it is possible to get away with a light sentence, the anti adulteration law will cease to have any meaning and validity.
+4. It will be mocked at by the people as a futile legislative exercise. Moreover, we find that here the learned Magistrate had got a cyclostyled form of judgment in which merely blanks were filled in by him and this is the clearest possible evidence that he was in the habit of encouraging plea bargaining and letting off the accused lightly if there was a plea of guilty, so that he may get quick disposal without any effort. This was a highly reprehensible practice and we are glad to note that the High Court has expressed strong disapproval of it. The Magistrate trying an accused for a serious offence like adulteration must apply his mind to the evidence recorded before him and, on the facts as they emerge from the evidence, decide whether the accused is guilty or not. It must always be remembered by every judicial officer that administration of justice is a sacred task and according to our hoary Indian tradition, it partakes of the divine function and it is with the greatest sence of responsibility and anxiety that the judicial officer must discharge his judicial function, particularly when it concerns the liberty of a person. The course followed by the learned Magistrate in the present case clearly showed that there was no application of mind by him to the case laid on behalf of the prosecution and he was a consenting party to the appellant being persuaded to enter the plea of guilty and, acting mechanically on the plea of guilty as extracted from the appellant, he appeased his insensitive conscience by recording a finding conviction against the appellant and let him off with a mere sentence of imprisonment till the rising of the Court and a nominal fine.
+5. The High Court on its attention being drawn to the Order passed by the learned Magistrate initiated suo motu proceeding in revision by issuing notice to the appellant to show cause why the sentence imposed on him should not be enhanced. The appellant appeared in answer to the notice and challenged the conviction recorded against him, but the High Court did not go into the circumstances in which the plea of guilty was entered by the appellant and relying on the plea of guilty proceeded on the basis that the appellant was rightly convicted and since the offence said to be established against the appellant, was with respect to an article of 'primary food' punishable under s. 16(1)(a) (i) of the Prevention of Food Adulteration Act, 1954, the High Court held that the appellant was liable to be sentenced to imprisonment for a minimum term of 3 months and a fine of not less than Rs. 500. The High Court accordingly enhanced the sentenced imposed on the appellant to 3 months' simple imprisonment and a fine of Rs. 500 or in default, further simple imprisonment for 30 days. This order made by the High Court is challenged in the present appeal preferred by the appellant after obtaining special leave of this Court.
+6. Now, it does not appear from the record whether the entire prosecution evidence was completed before the learned Magistrate before the plea of guilty was entered on behalf of the appellant, but one thing is clear that the finding conviction recorded by the learned Magistrate against the appellant was not based on the evidence led on behalf of the prosecution. The conviction of the appellant based solely on the plea of guilty entered by him and this confession of guilt was the result of plea of bargaining between the prosecution, the defence and the learned Magistrate. It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our mind contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly.
+7. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Art. 21 of the Constitution unfolded in Maneka Gandhi's case. It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and ardous criminal trial which, having regard to our combers and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be defected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti adulteration statute.
+8. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal. The High Court should have therefore, set aside the conviction of the appellants and sent the case back to the learned Magistrate for trial in accordance with law, ignoring the plea of guilty entered by the appellant. The High Court was clearly in error in not doing so.
+9. We accordingly allow the appeal, set aside the judgments of the High Court as also the Order of conviction and sentence recorded against the appellant by the learned Magistrate and remand the case to the learned Magistrate so that he may proceed with the case from the stage at which the appellant confessed to a plea of guilty. The learned trial Magistrate will ignore the plea of guilty entered by the appellant and proceed further with the case after giving an opportunity to the prosecution to lead such additional evidence as it thinks fit and then allowing the appellant to enter upon his defence and lead such evidence in defence as he thinks proper and then dispose of the case in accordance with law. The appellant will continue on the same bail on which he has been released by this Court by its Order dated 30th March, 1979.
+10. BHAGWATI, J. The facts giving arise to this appeal by special leave are almost identical with those of Criminal Appeal No. 93 of 1980 save and except that the appellant is different and for the same reasons as are given by us in our Judgment disposing of Criminal Appeal No. 93 of 1980, we allow the present appeal, set aside the judgment of the High Court as also the Order of Conviction and sentence recorded against the appellant by the learned Magistrate and remand the case to the learned Magistrate so that he may proceed with the case from the stage at which the appellant confessed to a plea of guilty.
+11. The learned trial Magistrate will ignore the plea of guilty entered by the appellant and proceed further with the case after giving an opportunity to the prosecution to lead such additional evidence as it thinks fit and then allowing the appellant to enter upon his defence and lead such evidence in defence as he thinks proper and then dispose of the case in accordance with law. The appellant will continue on the same bail on which he has been released by this Court by its Order dated 30th March, 1979.
+Appeals allowed.

Object_casedocs/C1037.txt

@@ -0,0 +1,80 @@
+Sahabuddin and another v State of Assam
+Supreme Court of India
+
+13 December 2012
+Cr.A. No. 629 of 2010
+The Judgment was delivered by : Swatanter Kumar, J.
+1. It is the case of the prosecution that the accused Sahabuddin was married to one Sajna Begum, the deceased on 17th May, 2001, and they were staying together. She was three months' pregnant. During her last visit to her parental home, she wailed and was not willing to go back to her husband's house, stating that her husband and her brother-in-law would kill her if their demands of dowry were not met. However, the wish of her parents prevailed and she was sent back to her matrimonial home. After lapse of barely a couple of months i.e. on 9th September, 2001, approximately four months after her marriage, at about 10 p.m., one Sarifuddin, the elder brother-in-law of Sajna Begum, informed her uncle, Taibur Rahman, PW7 that she fell down in the kitchen due to dizziness. Ten minutes later, Sarifuddin came back and informed them that Sajana Begum fell down and froth was coming out of her mouth and thereafter she died. PW7 informed the mother of the deceased, Abejan Bibi, PW3, about the death of her daughter, Sajna Begum. When they reached the place of occurrence, they saw that their daughter was lying dead. Suspecting that it was not a natural death and that there had been some foul play on the part of the accused persons i.e. the husband and the brother-in-law of the deceased, PW3, lodged an FIR.
+2. The FIR, Ext. 3, was registered u/s. 304(B) of the Indian Penal Code, 1860 (for short "IPC"). However, the Court of competent jurisdiction on the basis of the police report and upon hearing both the parties found that a prima facie case under Section 302/34 IPC was made out against the accused Sahabuddin and Sarifuddin. They were charged with the same offence and the case was put to trial. The Investigating Officer, Someshwar Boro, PW11, took over the investigation, examined a number of witnesses and seized the dead body from the place in question.
+The body of the deceased was subjected to post mortem. On 10th September, 2001, Dr. Swapan Kumar Sen, PW1 in the post mortem report, Ext. 1 stated that injuries on the body of the deceased were antemortem and that there were multiple bruises on the lower abdomen. Also, the neck was swollen and face was congested and swollen. Although, the cause of death could not be ascertained, the visceras were preserved to be sent to the Forensic Science Laboratory, Guwahati, for forensic and chemical analysis. PW2, an Executive Magistrate, who had conducted inquest on the body of the deceased noticed that the hands of the deceased were close fisted and saliva was coming out of her mouth along with a little quantity of foam. Black spots were found on her belly and some spots were also noticed on her back. Ext. 2 is the inquest report.
+3. The mother of the deceased, Abejan Bibi, PW3 was another material witness and according to her, assault marks could be seen all over the body of the deceased and that her neck was swollen. PW3 also stated that she saw black marks on the left side of the abdomen of her deceased daughter. Thus, on being suspicious that her daughter had been killed, PW3 lodged the FIR. PW4 who had accompanied PW3, stated PW3 to be her aunt and the statement of PW 4 was quite similar to that of PW3. PW7, Taibur Rahman was the uncle of the deceased, Sajna Begum who had first been informed of her demise by her brother in law, Sarifuddin.
+4. However, PW8 and PW9 were the prosecution witnesses who did not fully support the case of the prosecution and were thus declared hostile by the prosecution. Both these witnesses were the neighbours of the accused persons. Accused in their statements u/s. 313 of the Code of Criminal Procedure (for short "the CrPC") denied all the allegations and opted to lead defence. The accused persons had examined as many as three witnesses, who were primarily produced to establish the plea of alibi, affirming that the accused were not present in the house, when the incident took place.
+5. Disbelieving the defence put forth by the accused, the Trial Court held both the accused guilty of the offence punishable u/s. 302 read with S. 34 IPC and having found them guilty, awarded them life imprisonment and a fine of Rs. 5000/- and in default to undergo simple imprisonment for six months.
+6. At this stage, we may also notice that the Trial Court had observed that PW1, Dr. Swapan Kumar Sen, the medical officer needs to be censured as his report was found to be perfunctory in nature.
+7. Challenging the legality and correctness of the judgment of the Trial Court, the accused persons preferred an appeal before the High Court. The High Court vide its judgment dated 27th November, 2008 dismissed the appeal, confirming the finding of guilt and order of sentence passed by the Trial Court, giving rise to the filing of the present appeal.
+8. The learned counsel appearing for the appellants has raised the following contentions while impugning the judgment under appeal:-
+1. The story of the prosecution is improbable and prosecution has not been able to establish its case beyond reasonable doubt.
+2. PW3 to PW7 are all interested witnesses. By virtue of them being the relatives of the deceased, these witnesses wanted to falsely implicate the accused persons. Hence, their statements cannot be relied upon and in any case, there are contradictions in the statements of these witnesses. Thus, the accused is entitled to the benefit of doubt.
+3. PW8 and PW9 did not support the case of the prosecution. The Court should have returned a finding in favour of the accused by appreciating the statements of DW1, DW2 and DW3, in its correct perspective and examining them in light of the statements of the PW8 and PW9.
+9. We are unable to find any merit in the contentions raised on behalf of the appellants, which we propose to discuss together as the Court has to refer to the same evidence for appreciation of the contentions raised on behalf of both the appellants. Thus, it will be appropriate to discuss the pleas together.
+10. This is a case of circumstantial evidence as there is no eye witness to the occurrence which has been produced by the prosecution.
+11. Let us examine the various circumstances by which the prosecution has attempted to establish the guilt of the accused beyond reasonable doubt. PW3 is the mother of the deceased who had been informed by PW7, the uncle of the deceased about her death. PW5 and PW7 are the uncles of the deceased. PW4 is the cousin sister and PW6 is the sister of the deceased. These persons had accompanied PW3 to the house of the accused, when they got the news of death of the deceased.
+12. It has been specifically stated by these witnesses that there were marks on the body of the deceased, her neck was congested and swollen and so was the face. The statement of these witnesses and particularly of PW3, finds due corroboration with the post mortem report prepared by PW1 and, therefore, it will be useful to refer to the entire statement of this witness.
+"On 10/9/2001 I was at Karimganj Civil hospital as Senior M & H.O. On that day at 3-30 p.m. I held post mortem examination on the dead body of Sajna Begum aged 18 years, a female Muslim, from Durlabpur under Patharkandi P.S. on police requisition, being identified by Head Constable Rabindra Deb and Md. Khairuddin, a relation of the deceased and found as :-
+External Appearance
+An average built female aged about 18 years whose rigor mortis was absent, eyes closed, mouth half open, froth in nostrils present which was whitish. Multiple bruises on the lower abdomen. Neck was swollen. Face was congested & swollen.
+Cranium & Spinal Canal
+All organs pale Thorax
+Heart was pale & chambers contained blood. Vessels contained blood. All other organs were pale.
+Abdomen
+Stomach & its contents congested and contained ricy food materials. Large intestine etc - pale & empty. Other organs were pale. Organs of generation etc - pale. Uterus was 3 months pregnancy.
+More details
+Injuries were ante mortem.
+Visaras also preserved for forensic and clinical analysis through FSL, Guwahati.
+(1) Stomach and its contents.
+(2) Part of heart, lung, liver, spleen, kidney and rib.
+Opinion
+As the actual cause of death could not be ascertained the visceras preserved for forensic & chemical analysis to FSL, Guwahati.
+Ext. 1 is the Report, Ext. 1(1) is my signature. Bruises and swollen face being congested may be due to some physical assault. Black spots detected by the Executive Magistrate at the time of preparing his inquest report corresponds to bruises on the lower abdomen as described by my in my p.m. report.
+XXXXXXXXXXXXXXX
+I was not present at the time of holding inquest by the Magistrate. Bruise resembles to black spot. Normally after death, no black spot is noticed on a dead person. Black spots may be caused due to poisoning or suffocation. Bruise may be caused due to dashing against piece of bamboo, bamboo fencing etc. Pale I mean bloodless and it may happen in normal death also. Definite cause of death could not be detected. Symptoms as described above may happen due to epilepsy."
+13. As is evident from the statement of PW1, the deceased was three months pregnant. He specifically made a note of the fact that her neck was swollen, her face was congested and swollen and there were multiple bruises on her lower abdomen. According to this witness, the actual cause of death could not be ascertained, but he stated that the presence of bruises on the body of the deceased and her face being swollen and congested may be due to some physical assault. In his cross- examination, he stated that the black spots may be caused due to poisoning or suffocation and also that symptoms described above may also occur due to epilepsy.
+14. Certainly, the doctor did not give a concrete opinion as to the cause of death. The report of the chemical analyst and the report of the Forensic Science Laboratory were not placed on record so that the Court could at least come to a definite conclusion on the basis of scientific analysis. FSL Report was not sent, no report was obtained and, in fact according to PW11, the viscera could not be examined by the laboratory as it was not sent in time. It is evident that the investigation conducted by the Investigating Officer, PW11 and the post mortem examination by the doctor was improper in its very nature. Thus, the remarks made by the Trial Court in this behalf are fully justified.
+15. Reverting to the evidence, the post mortem report, Ext. 1 clearly corroborates the statement of five witnesses, PW3, PW4, PW5, PW6 and PW7 and there is no reason for the Court to cast a doubt upon their statement. All these witnesses are related to the deceased. Merely because they are all relatives of the deceased will not by itself cause any prejudice to the case of the prosecution. In such events, it is not the outsiders who would come to the rescue and would stand by the victim/deceased and their family, but it is the members of their family who would go to witness such an unfortunate incident.
+16. An interested witness is the one who is desirous of falsely implicating the accused with an intention of ensuring their conviction. Merely being a relative would not make the statement of such witness equivalent to that of an interested witness. The statement of a related witness can safely be relied upon by the Court, as long as it is trustworthy, truthful and duly corroborated by other prosecution evidence. At this stage, we may refer to the judgment of this Court in the case of Gajoo v. State of Uttarakhand [JT 2012 (9) SC 10], 2012 Indlaw SC 310 where the Court while referring to various previous judgments of this Court, held as under:-
+We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954 SCR 145] 1953 Indlaw SC 16, while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:-
+"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
+Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. 2006 Indlaw SC 46 The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
+This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73] 2008 Indlaw SC 1238} In the case of Darya Singh & Ors. v. State of Punjab [AIR 1965 SC 328], 1963 Indlaw SC 377 the Court held as under:-
+"On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
+Once, the presence of PW2 and PW3 is shown to be natural, then to doubt their statement would not be a correct approach in law. It has unequivocally come on record through various witnesses including PW4 that there was a 'Satyanarayan Katha' at the house of Chetu Ram which was attended by various villagers. It was on their way back at midnight when PW2 and PW3 had seen the occurrence in dark with the help of the torches that they were carrying. The mere fact that PW2 happens to be related to PW1 and to the deceased, would not result in doubting the statement of these witnesses which otherwise have credence, are reliable and are duly corroborated by other evidence. In such cases, it is only the members of the family who come forward to depose. Once it is established that their depositions do not suffer from material contradictions, are trustworthy and in consonance with the above-stated principles, the Court would not be justified in overlooking such valuable piece of evidence.
+17. In light of the above principles and the evidence noticed supra, we have no doubt in our mind that the statements of PWs were reliable and trustworthy, as they were fully corroborated by other prosecution, documentary and ocular evidence. The learned counsel appearing for the appellants contended that there are material variations and contradictions in the statement of PW3 and PW6 respectively with regard to the time of incident as well as death of the deceased. Therefore, neither these witnesses can be relied upon nor can prosecution be said to have proved its case beyond reasonable doubt. Such a submission can only be noticed to be rejected.
+18. PW3 had mentioned that she came to know about the death of her daughter at about 9.30 p.m., however, according to PW6, it was about 8 or 9 o'clock when she was informed of the death of her sister. This would hardly be a contradiction. It is a plausible fact that there could be some variations in the statements of witnesses with respect to a particular incident. Thus, in the facts and circumstances of the present case, a mere variation in time is not a material contradiction. It was the uncle of the deceased, PW7, who had been informed by the co-accused, the brother-in-law of the deceased, firstly about the sickness of the deceased and then about her death.
+19. Every variation or immaterial contradiction cannot provide advantage to the accused. In the facts and circumstances of the present case, variation of 45 minutes or an hour in giving the time of incident will not be considered fatal. It is a settled principle of law that while appreciating the evidence, the Court must examine the evidence in its entirety upon reading the statement of a witness as a whole, and if the Court finds the statement to be truthful and worthy of credence, then every variation or discrepancy particularly which is immaterial and does not affect the root of the case of the prosecution case would be of no consequences. Reference in this regard can be made to State represented by Inspector of Police v. Saravanan and Anr. [(2008) 17 SCC 587]. 2008 Indlaw SC 1638
+20. Next, it was contended that PW8 and PW9 had not supported the case of the prosecution and, therefore, the accused should be entitled to benefit of doubt. PW8 had stated that just before the sunset, the deceased fell down while she was fetching water from the river. She got up and ran like a mad man. According to him, the deceased was caught by evil spirits and was an epileptic. PW9, narrated that he heard cries while he was working in the paddy field and when he went to the house of the accused, he saw the deceased struggling for life. He met the mother-in-law of the deceased and stated that none else was present there. According to him, the deceased died of epilepsy.
+21. We may notice that both these witnesses are neighbours of the accused and the same has also been confirmed by them. They affirmed the death of the deceased but gave different versions as to the place and the manner in which she died. The statements of such witnesses would hardly carry any weight in face of statements of PW3 to PW7. The possibility of their turning hostile by virtue of them being neighbours of the accused cannot be ruled out.
+22. The prosecution has been able to establish various circumstances which complete the chain of events and such chain of events undoubtedly point towards the guilt of the accused persons. These circumstances are; the victim coming to her parental home and declining to go back to her matrimonial home, she being persuaded to go to her matrimonial home by her parents and within a few days thereafter, she dies at her in laws place. Further that she had various injuries on her lower abdomen and that her neck and face were congested and swollen. The post mortem report completely corroborates the statements of PWs. Ext. 2, the inquest report, also fully substantiates the case of the prosecution.
+Besides this, PW3 had categorically stated that her daughter was not suffering from epilepsy or any other disease and that she died as a result of torture inflicted on her by the accused persons. In the cross-examination, two suggestions were put forth to her, one that the deceased died of epilepsy and secondly, that supernatural powers had seized her and that she could not be cured by Imam and thus, died, both of which were denied by her. In any case, this contradiction in the stand taken by the defence itself point towards the untruthfulness and falsity of the defence.
+23. If she was sick, as affirmed by her in laws, then why was she not taken to any doctor or a hospital by the accused persons. She admittedly did not die of any heart attack or haemorrhage. She died in the house of the appellants and therefore, it was expected of the appellants to furnish some explanation in their statement u/s. 313 CrPC as to the exact cause of her death. Unfortunately, except barely taking the plea of alibi, accused persons chose not to bring the truth before the Court i.e. the circumstances leading to the death of the deceased.
+24. The plea of alibi was taken by the appellants and was sought to be proved by the statement of defence witnesses, DW1, DW2 and DW3 respectively. These witnesses have rightly been disbelieved by the Trial Court as well as by the High Court. We also find no merit in the plea of alibi as it is just an excuse which has been put forward by the accused persons to escape the liability in law. There is a complete contradiction in the material facts of the statement of DW1, DW2 and DW3. According to the statements of DWs that none of the family members were present on the spot is strange in light of the fact that the deceased was so ill that she died after a short while due to her illness. If none of the accused, whom these witnesses knew were present, then it is not only doubtful but even surprising as to how they came in contact with the deceased at the relevant time. The falsity of the evidence of the defence is writ large in the present case. For these reasons, we find the conduct of the accused unnatural and the statement of these witnesses untrustworthy. The plea of alibi is nothing but a falsehood.
+25. Once, the Court disbelieves the plea of alibi and the accused does not give any explanation in his statement u/s. 313 CrPC, the Court is entitled to draw adverse inference against the accused. At this stage, we may refer to the judgment of this Court in the case of Jitender Kumar v. State of Haryana [(2012) 6 SCC 204], where the Court while disbelieving the plea of alibi had drawn an adverse inference and said that this fact would support the case of the prosecution.
+"The accused in the present appeal had also taken the plea of alibi in addition to the defence that they were living in a village far away from the place of occurrence. This plea of alibi was found to be without any substance by the Trial Court and was further concurrently found to be without any merit by the High Court also. In order to establish the plea of alibi these accused had examined various witnesses. Some documents had also been adduced to show that the accused Pawan Kumar and Sunil Kumar had gone to New Subzi Mandi near the booth of DW-1 and they had taken mushroom for sale and had paid the charges to the market committee, etc. Referring to all these documents, the trial court held that none of these documents reflected the presence of either of these accused at that place. On the contrary the entire plea of alibi falls to the ground in view of the statements of PW-10 and PW-11. The statements of these witnesses have been accepted by the Courts below and also the fact that they have no reason to falsely implicate the accused persons. Once, PW-10 and PW-11 are believed and their statements are found to be trustworthy, as rightly dealt with by the Courts below, then the plea of abili raised by the accused loses its significance. The burden of establishing the plea of alibi lay upon the appellants and the appellants have failed to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi. The plea of alibi in fact is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. {Ref. Shaikh Sattar v. State of Maharashtra [(2010) 8 SCC 430] 2010 Indlaw SC 690}."
+26. For the reasons afore-stated, we find no merit in the contentions raised on behalf of the appellants. Before we part with this file, we cannot help but to observe that the competent authority ought to have taken some action on the basis of the observations made by the Trial Court in its judgment under appeal.
+27. The Investigating Officer has conducted investigation in a suspicious manner and did not even care to send the viscera to the laboratory for its appropriate examination. As already noticed, in his statement, PW11 has stated that viscera could not be examined by the laboratory as it was not sent in time. There is a deliberate attempt on the part of the Investigating Officer to misdirect the evidence and to withhold the material evidence from the Court.
+28. Similarly, PW1, the doctor who conducted the post mortem of the corpse of the deceased was expected to categorically state the cause of death in which he miserably failed. He is a doctor who is expected to perform a specialized job. His evidence is of great concern and is normally relied upon by the Courts. For reasons best known to him, he made his evidence totally vague, uncertain and indefinite. Given the expertise and knowledge possessed by a doctor PW1, was expected to state the cause of death with certainty or the most probable cause of death in the least. According to PW1, the black spots noticed on the deceased may be because of poisoning or it could be because of suffocation, although he also mentioned in his report that the symptoms described above may occur due to epilepsy. It is not possible to imagine that there would be no distinction whatsoever, if such injuries were inflicted by assault or suffocation or be the result of an epileptic attack.
+29. In our considered view, the doctor has also failed to discharge his professional obligations in terms of the professional standards expected of him. He has attempted to misdirect the evidence before the Court and has intentionally made it so vague that in place of aiding the ends of justice, he has attempted to help the accused.
+30. In our considered view, action should be taken against both these witnesses. Before we pass any direction in this regard, we may refer to the judgment of this Court in Gajoo 2012 Indlaw SC 310 (supra), where the Court had directed an action against such kind of evidence and witnesses;
+In regard to the defective investigation, this Court in the case of Dayal Singh and Others. v. State of Uttaranchal 2012 Indlaw SC 240 [Criminal Appeal 529 of 2010, decided on 3rd August, 2012] while dealing with the cases of omissions and commissions by the investigating officer, and duty of the Court in such cases held as under:-
+"Now, we may advert to the duty of the Court in such cases. In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC 613], 1972 Indlaw SC 601 this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of Dhanaj Singh @ Shera & Ors. v. State of Punjab [(2004) 3 SCC 654], 2004 Indlaw SC 1100 held, "in the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
+(Emphasis supplied)
+"Dealing with the cases of omission and commission, the Court in the case of Paras Yadav v. State of Bihar [AIR 1999 SC 644], 1999 Indlaw SC 437 enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. In the case of Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors. [(2006) 3 SCC 374] 2006 Indlaw SC 639, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the court on the one hand and on the other the courts must seriously deal with persons who are involved in creating designed investigation. The Court held that legislative measures to emphasize prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance if not more, as the interest of the individual accused. The courts have a vital role to play. "
+"With the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
+In Ram Bali v. State of Uttar Pradesh [(2004) 10 SCC 598], 2004 Indlaw SC 265 the judgment in Karnel Singh v. State of M.P. [(1995) 5 SCC 518] 1995 Indlaw SC 1353 was reiterated and this Court had observed that 'in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective'.
+Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.
+This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab [2004 Cri.LJ 28], 2003 Indlaw SC 857 the Court, while dealing with discrepancies between ocular and medical evidence, held, "It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out."
+30. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. (Plz. See Madan Gopal Kakad v. Naval Dubey & Anr. [(1992) 2 SCR 921: (1992) 3 SCC 204] 1992 Indlaw SC 446)."
+"The present case, when examined in light of the above principles, makes it clear that the defect in the investigation or omission on the part of the investigation officer cannot prove to be of any advantage to the accused. No doubt the investigating officer ought to have obtained serologist's report both in respect of Ext. 2 and Ext. 5 and matched it with the blood group of the deceased. This is a definite lapse on the part of the investigating officer which cannot be overlooked by the Court, despite the fact that it finds no merit in the contention of the accused. For the reasons afore-recorded, we dismiss this appeal being without any merit. However, we direct the Director General of Police, Uttarakhand to take disciplinary action against Sub-Inspector, Brahma Singh, PW6, whether he is in service or has since retired, for such serious lapse in conducting investigation.
+The Director General of Police shall take a disciplinary action against the said officer and if he has since retired, the action shall be taken with regard to deduction/stoppage of his pension in accordance with the service rules. The ground of limitation, if stated in the relevant rules, will not operate as the inquiry is being conducted under the direction of this Court."
+31. In view of the above settled position of law, we hereby direct the Director General of Police, State of Assam and Director General of Health Services, State of Assam to take disciplinary action against PW1 and PW11, whether they are in service or have since retired. If not in service, action shall be taken against them for deduction/stoppage of pension in accordance with the service rules. However, the plea of limitation, if any under the relevant rules would not operate, as the departmental inquiry shall be conducted in furtherance to the order of this Court.
+32. The appeal is dismissed, however with the above directions.
+Appeal dismissed

Object_casedocs/C1038.txt

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+Ram Chander and others v State of Haryana
+Supreme Court of India
+
+2 January 2017
+Criminal Appeal Nos. 658-659 of 2010
+The Judgment was delivered by : A.M. Sapre, J.
+1. These appeals are filed against the common final judgment and order dated 12.08.2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal Nos. 448-DB and 395-DB of 1998 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein and upheld the judgments/orders of conviction and sentence rendered by the Trial Court.
+2. The case of the prosecution is as under: One Hari Singh (since dead) was married to Messo (deceased). Out of this wedlock, the couple was blessed with three daughters, namely, Dholi alias Krishna, Sumitra and Raj Bala. Raj Bala was aged around 15 years and the youngest amongst the three daughters. Both Dholi and Sumitra were married at a place (village) called Kagdana whereas Rajbala was unmarried.
+3. Hari Singh has two brothers, namely, Sohan Lal (accused - since dead) and Bhoop Singh. Sohan Lal has four sons, namely, Ram Chander, Ranbir alias Randhir, Ram Kumar and Om Parkash (accused- appellants herein). Messo has one sister Guddi (PW- 9) who is married to Bhoop Singh.
+4. Messo and Raj Bala (mother and daughter) were living in one house at village Arnianwali. Guddi was their next-door neighbour. Messo was in search of a boy for Raj Bala and had selected one boy from a place called Manak Dewan for which talks had been going on for the last one month or so from the date of incident. The engagement ceremony was accordingly fixed for 22.09.1996 at Arnianwali. Dholi alias Krishna (married daughter of Messo) had, therefore, come to her mother's place at Arnianwali on 19.09.1996 to help her mother and sister-Raj Bala for the ceremony.
+5. On 20.09.1996, around 3 p.m. Sohan Lal along with his four sons, namely, Ranbir, Ram Chander, Ram Kumar and Om Parkash, came to the house of Messo and told her to desist from settling the marriage of Raj Bala with a boy from Manak Dewan. Sohan Lal said that they could settle it according to their own choice. Sohan Lal, who was not happy with the marriage proposal, expressed his total unhappiness and did not want the marriage proposal to fructify. He then threatened Messo that in case she did not agree to his proposal then both (Messo and Raj Bala) would not see the sun the next day. After giving this threat, Sohan Lal along with his sons (appellants herein) left the place. Dholi and Guddi were present along with Messo and Raj Bala when Sohan Lal and his four sons had come.
+6. Messo fearing with the threat of Sohan Lal asked her daughter Dholi to go immediately to her brother, Ram Sarup at village Dhigtania which was around 20 KM away from her house and inform him about happening of such incident with her. Dholi, accordingly, went there and narrated the incident to Ram Sarup-her maternal uncle. She then stayed overnight with Ram Sarup.
+7. On 21.09.1996, in the early hours, when Dholi and Ram Sarup accompanied by one Om Prakash-Sarpanch of Village Dhigtania reached to the house of Messo, they found both, Messo and Raj Bala, missing from the house. They, therefore, went to the house of Guddi (PW-9), who was living next to the house of Messo. They noted that Guddi was weeping and was in the state of shock.
+8. When they inquired from her about the whereabouts of Messo and Raj Bala, Guddi told them that Sohan Lal and his four sons had come in the night and murdered Messo and Raj Bala, burnt their bodies in house and carried the remains of the dead bodies and ashes in a cart driven by the tractor from her house to an unknown place.
+9. This led to the registration of FIR bearing No.197 (Ex-PA-1) dated 21.09.1996 by Dholi at Police Station Nathusari Chopta naming Sohan Lal and his four sons (appellants herein) as accused persons for committing the murder of her mother-Messo and sister-Raj Bala. The police authorities then started investigation, visited the spot, recorded the statements of the witnesses, prepared the spot map, recovered several articles from the spot and arrested the accused persons. On being interrogated, the accused made disclosure statements about the manner in which ashes/bones of both the deceased were disposed of in a nearby Canal known as-Sheranwali Canal and also disclosed the place where the weapons used in commission of the offence and tractor with cart were kept. On such disclosure being made, the police made recoveries of the articles at the instance of the accused.
+10. After completion of the investigation, the case was committed to the Court of Sessions and the accused persons were charged for commission of the offences punishable under Sections 148, 302 read with Section 149 and 201 of the Indian Penal Code,1860 (for short 'IPC').
+11. On 07.08.1997, Om Parkash-one of the accused escaped from police custody from Civil Hospital Sirsa. Proceedings under Sections 82 and 83 of the Criminal Procedure Code,1973 (for short 'the Code') were initiated against him. He was declared 'Proclaimed Offender' and proceedings under Section 299 of the Code were ordered to be taken up against him. The trial of other accused, however, proceeded on merits.
+12. The prosecution, in support of his case, examined as many as 11 witnesses whereas the defence did not choose to lead any evidence. Proceedings under Section 313 of the Code were carried out. After completion of the trial, the Trial Court (Additional Sessions Judge, Sirsa), vide judgment dated 27.07.1998, convicted Sohan Lal, Ranbir @ Randhir, Ram Chander and Ram Kumar for the offences punishable under Sections 148, 302/149 and 201/149 IPC and sentenced them to undergo rigorous imprisonment for a period of one year each under Section 148 IPC. Ram Chander and Ranbir @ Randhir to undergo imprisonment for life under Section 302 IPC and to pay a fine of Rs.5000/- each, in default of payment, further to undergo rigorous imprisonment for a period of one year each. Sohan Lal and Ram Kumar were sentenced to imprisonment for life under Section 302/149 IPC and to pay a fine of Rs.5000/- each, in default of payment of fine, further to undergo rigorous imprisonment for a period of one year each. All the four accused were sentenced to undergo rigorous imprisonment for a period of two years each for the offences punishable under Section 201/149 IPC. All the sentences were ordered to run concurrently.
+13. After arrest of Om Parkash on 22.02.1999, a separate trial was conducted against him and after its completion, the Trial Court, by a separate judgment dated 7/8.08.2000, convicted him for the offences punishable under Sections 148, 302/149 and 201/149 IPC and sentenced him to undergo rigorous imprisonment for one year under Section 148 IPC imprisonment for life and fine of Rs.5000/- with default clause under Section 302/149 IPC and rigorous imprisonment for two years under Section 201/149 IPC. All the substantive sentences were ordered to run concurrently.
+14. Against the judgment of conviction and order of sentence dated 27.07.1998, Sohan Lal, Ram Chander, Ram Kumar and Ranbir @ Randhir filed Criminal Appeal No. 448-DB of 1998 before the High Court.
+15. Against the judgment of conviction and order of sentence dated 7/8.9.2000, Om Parkash filed separate Criminal Appeal No. 395-DB of 2000 before the High Court.
+16. The appeals were heard together. By impugned judgment dated 12.08.2008, the High Court dismissed both the appeals. During the pendency of the appeals before the High Court, Sohan Lal died, therefore, appeal against him stood abated.
+17. Aggrieved by the said judgment, all the accused have filed these appeals by special leave before this Court questioning the legality and correctness of their conviction and sentence.
+18. Heard Mr. Naresh Kaushik, learned counsel for the appellants (accused) and Mr. Sanjay Kumar Visen learned counsel for the respondent- State. We also perused the written submissions submitted by the learned counsel for the parties.
+19. Learned counsel for the appellants (accused) while assailing the legality and correctness of the impugned order, reiterated the same submissions which were pressed in service though unsuccessfully by the appellants before the two courts below resulting in their conviction.
+20. In substance, the submissions were that firstly, the appellants were falsely implicated in the incident inasmuch as none of the appellants were connected with the commission of the offence in question in any way so also their complicity in the commission of the offence could not be established by the prosecution for want of evidence against any of them.
+21. The second submission was that neither the motive for commission of the offence and nor the presence of any of the appellants either jointly and individually was proved at the time of the commission of the offence by the prosecution and the evidence adduced by the prosecution is not sufficient to implicate the appellants for commission of the offence.
+22. The third submission was that the two Courts below erred in placing reliance on the evidence of the so-called eye-witness-Guddi (PW-9) as according to the learned counsel, her testimony, if scanned properly would neither inspire confidence and nor will command creditability due to her close relationship with the deceased family.
+23. The fourth submission was that apart from the evidence of Guddi (PW-9), no independent eye-witness to the incident was examined by the prosecution, therefore, it is not safe to rely on the uncorroborated testimony of Guddi (PW-9) for sustaining the appellants' conviction.
+24. The fifth submission was that when the prosecution claimed that on the strength of disclosure statement of one accused, they recovered "Ashes and Bones" from the canal, this itself renders the case of the prosecution wholly unacceptable because ashes could never be recovered from canal.
+25. The sixth submission was that it looked highly improbable that no villager could witness the incident except Guddi (PW-9). This, according to learned counsel, is sufficient to hold that the prosecution failed to establish the complicity of the appellants in commission of the crime.
+26. The seventh submission was that no expert opinion was obtained to find out as to whether bones recovered were human bones or animal bones?
+27. It is basically these submissions, which were elaborated by the learned counsel for the appellants with reference to the evidence on record.
+28. In reply, learned counsel for the respondent supported the impugned order and contended that since both the Courts below, on proper appreciation of evidence, have held that the appellants were involved in the commission of the offence in question and committed brutal murder of two innocent ladies, mother and daughter, and further both the Courts have given cogent reasons while rejecting their submissions and hence there arises no reason to interfere in the impugned order.
+29. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.
+30. At the outset, we may take note of one legal principle consistently reiterated by this Court since inception that it is not the function of this Court to re-assess evidence and an argument on a point of fact which did not prevail with the Courts below cannot avail the appellants in this Court (see observation of learned Judge - Saiyid Fazl Ali, J. while speaking for the Bench in the case of Lachhman Singh and others vs State (AIR 1952 SC 167 1952 Indlaw SC 47).
+31. Here is a case where the Trial Court and the High Court, on appreciating the entire oral evidence, recorded categorical concurrent findings of fact against the appellants (accused) about their complicity in commission of crime in question which resulted in killing of mother and her unmarried daughter.
+32. Both the Courts below held that firstly, it were the appellants who had come to the house of Messo (mother) and threatened her that she (Messo) should not pursue her daughter, Raj Bala's marriage with the boy from Manak Diwan, otherwise both will not see the sun the next day. Secondly, noticing that both did not pay any heed to the threat, the appellants came to Messo's house in the midnight with a pre-determined mind to eliminate Messo and Raj Bala. Thirdly, the appellants accomplished their plan by mercilessly killing Messo and Raj Bala with the use of gandasa when both were in fast asleep. Fourthly, the appellants first caught hold of Messo and chopped her head with Gandasa and then did the same to Raj Bala and then put them on a cot and put mattresses and wood sticks over their bodies and poured kerosene/diesel and set their bodies to fire. Fifthly, the appellants then removed the ashes and bones from the place of occurrence in a tractor and all this was witnessed by Guddi (PW-9) who was living as next door neighbour of the deceased. Sixthly, Guddi (PW-9) was a reliable eye-witness whose evidence did not suffer from any infirmities or/and inconsistencies. Seventhly, the ashes, human bones, plastic bags, Gandasa used in execution of the offence were recovered from the canal and house at the instance of the respective appellants on the strength of individual disclosure statements made during their interrogation. Eighthly, the defence did not adduce any evidence to demolish the case of the prosecution and nor statements of the accused made under Section 313 of the Code, in any manner, could demolish the case of the prosecution on any material points. Ninthly, the case set up by the prosecution was proved with the aid of evidence adduced by witnesses, namely, PW-1 to PW-11.
+33. As observed supra, the aforementioned nine main findings of the Sessions Court were affirmed by the High Court after appreciating the oral evidence. These findings of fact being concurrent in nature are usually binding on this Court. This Court, being the last Court of appeal, does not re-visit and re-appreciate the entire oral evidence de novo in its jurisdiction under Article 136 of the Constitution unless there are strong and prima facie reasons to do so pointing out therein any apparent legal and jurisdictional error prejudicing any rights of the accused.
+34. However, since this Court granted leave to file appeal to the appellants against the impugned order of the High Court and hence we considered it just and proper to have a re-look to the evidence of material witnesses with a view to find out whether the concurrent findings of the two Courts below are based on proper appreciation of evidence or any of these findings call for any interference.
+35. As mentioned above, the only eye-witness to the incident in question is Guddi (PW-9). Both the Courts below found her testimony to be natural, credible and consistent.
+36. Guddi (PW-9) is the real sister of the deceased Messo and she was living next to the house of Messo. She, in her evidence, narrated in detail her family tree and their inter se relations including her relation with the accused family.
+37. She stated that Sohan Lal-one of the accused (since dead) was her husband's (Bhoop Singh's) real elder brother and the accused are Sohan Lal and his sons. She stated that Sohan Lal and his sons (appellants) had come to Messo's house in the afternoon on the date of incident (incident had occurred in midnight the same day) and held out a threat to her and Raj Bala that marriage proposal of her daughter with the boy from Manak Diwan should not be materialized and if it is not cancelled then she and her daughter will not see the sun the next day. She stated that Sohan Lal gave this threat to Messo in her presence and in presence of Dholi (PW-8) who had come to Messo to extend help for engagement ceremony of Raj Bala.
+38. She stated that Messo on hearing the threat asked Dholi-her daughter to go to her maternal uncle (Ram Sarup) - who was the resident of nearby village and bring him with her, if possible.
+39. She stated that Dholi immediately left to the house of Ram Sarup and on reaching there she told him about the incident. Dholi stayed back overnight with Ram Sarup.
+40. She then stated that during mid-night hours, she heard some noise in the house of Messo. She, therefore, woke up and came out to find out the cause of noice. She stated that between her house and the house of Messo, there is one common wall with sufficient space, which enables anyone to peep through easily in both the houses.
+41. She stated that she came near to the joint wall and through space in the wall saw that Ram Chander (accused) and Randhir (accused) were holding Gandasas in their hands whereas Sohan Lal (accused) and Om Prakash (accused) had caught hold of Masso's hand and legs and Ram Chander (accused) with his gandasa gave blow on Messo's neck, which completely severed Messo's neck from her body.
+42. She stated that Ram Kumar (accused) then caught hold of Raj Bala who was on a separate cot and Ranbir (accused) with his gandasa gave blow on Raj Bala's throat due to which her neck was completely severed from her body. The accused persons then put both the bodies on one cot along with their severed heads and put mattresses on the dead bodies. Sohan Lal then put some wood sticks by the side of the cot and poured two tins of diesel/kerosene on the cot and set the cot ablaze with matchstick.
+43. She stated that Ranbir (accused) then came to her (Guddi's) house and took their tractor and camel cart to Messo's house. He dumped ashes, bones and other burnt material in the tractor and proceeded with the tractor to an unknown place. She stated that before leaving, Ram Chander plastered the place of occurrence with mud and cow-dung and cleaned the place. She stated that she told about this incident to Bhoop Singh but on hearing it, he ran away out of fear.
+44. She stated that next morning when Ram Sarup, Dholi and Om Prakash-Sarpanch came, she narrated the entire incident to them, which eventually led to filing of FIR by Dholi immediately in the concerned nearby Police Station naming therein the appellants as the culprits of commission of the offence.
+45. Dholi (PW-8) corroborated the evidence of Guddi (PW-9) on material points such as (1) all the accused visiting Messo's house and giving threat in her presence to Messo and Raj Bala, (2) Raj Bala's marriage proposal with a boy from Manik Dewan (3) She having left to her uncle's place at the request of her mother Messo to inform him about the incident (4) her family relations with the accused and with other family members and lastly, what Guddi (PW-9) told her about the entire incident and the manner in which it was accomplished by the accused on her reaching the house next day morning with Ram Sarup and Om Prakash.
+46. Ram Sarup (PW-10) also corroborated the version of Guddi (PW-9) and Dholi (PW-8) on all material points. He stated that when he along with Dholi and Om Prakash went to Guddi, she was weeping and frightened. On being consoled, she narrated the entire incident (mentioned above) to them.
+47. The evidence of the Investigating Officer Hardawari Lal (PW-11) and Kiran Kumar (PW-7) who was the Scientific Assistant (Forensic Science Laboratory) proved that the blood stains were found on the walls and earth and also fresh mud and cow-dung was found on the walls and when it was removed, blood stains were noticed on the bricks of the wall. Kiran Kumar (PW-7) also corroborated the existence of joint wall with sufficient space available in the common wall as stated by Guddi (PW- 9).
+48. The evidence of Investigating Officer (PW-11) also proved the recoveries of articles on the basis of disclosure statements made by respective appellants (accused). The seized articles were proved and exhibited.
+49. It is with this evidence, the question arises as to whether the two Courts below were justified in placing reliance on the evidence of Guddi (PW-9) for resting the appellant's conviction?
+50. On scanning the aforementioned evidence, we are of the considered opinion that both the Courts below were justified in accepting the evidence of Guddi (PW-9) for resting the appellants' conviction upon it. We, while concurring with the reasoning and the conclusion of both the Courts below, give our reasons infra. In our view, the following facts are proved with the aid of evidence.
+51. First, Guddi (PW-9) was next-door neighbour to the house of both the deceased where the incident took place. Second, she was closely related to the deceased family and the family of the accused. Third, she knew the accused persons and the family members of the deceased very well much prior to the date of incident being a part of the same families. Fourth, she was fully aware of the marriage issue of Raj Bala. Fifth, she was present at the time of threat given by Sohan Lal and his sons (accused) to Messo. Sixth, she was able to see the incident graphically due to sufficient space available in the common wall. Seventh, Scientific Assistant, Kiran Kumar (PW-7) on inspection of the place of occurrence proved that the common wall has space. He said "there was open space between this wall and the room". Eighth, it also corroborates with the evidence of Hardawari Lal(PW-11) and the spot map (EX-PU) of the place of incidence that the wall and the open space therein did exist; Ninth, Guddi's narration of entire incident is so graphic that it looks natural. It also shows how confidently she was able to narrate the role of every accused in commission of the offence. Tenth, the existence of blood stains on wall and earth coupled with fresh mud and cow dung put on the walls/earth duly proved by Hardawari Lal, Investigating Officer(PW-11) and Kiran Kumar (PW-7) corroborates Guddi's statement that "Ram Chander - one of the accused before leaving the place of occurrence cleaned the place with mud and cow-dung". Eleventh, it is not possible to give description of an incident in such graphic manner and that too by a middle aged illiterate housewife unless she had actually seen such incident and why should Guddi (PW-9) give evidence against the appellants and falsely implicate them when there is no evidence to prove their previous animosity; Twelfth, motive to eliminate the two deceased was proved by Guddi against the appellants and lastly, nothing could be brought out to shake her testimony in cross-examination.
+52. The submission of learned counsel for the appellants that since Guddi (PW-9) was in close relation with the deceased persons, she should not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur and Ors. vs. State of Punjab, (1976) 4 SCC 158 1976 Indlaw SC 172, and Harbans Kaur and Anr. vs. State of Haryana, (2005) 9 SCC 195 2005 Indlaw SC 157, which lays down the following proposition:
+"There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused."
+53. In Namdeo Vs. State of Maharashtra, (2007) 14 SCC150 2007 Indlaw SC 204, this Court further held:
+"38 it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
+54. We follow and apply this well settled principle of law for rejecting the submissions of learned counsel for the appellants.
+55. In the light of aforementioned twelve reasons, we are of the view that Guddi (PW-9) was rightly held to be an eye-witness and the two Courts rightly relied upon her sworn testimony for sustaining the appellants' conviction.
+56. This takes us to the next argument of learned counsel for the appellants. It was urged that the alleged recovery of articles on the strength of disclosure statement of the accused and in particular the "ashes and the bones" from the canal is not possible. We do not agree.
+57. In our view, there is no evidence to prove the fact as to whether the canal from where the recovery of ashes and bones was made had any water therein or not at the relevant time. We do not find that any question was put to any witness on this issue and secondly, no independent evidence was brought on record to prove as to whether the canal was full of water or had no water therein. In any event, one could not dispute that bones were recovered from the canal. In the absence of any evidence, which could otherwise be led in any form, this submission at this stage is, therefore, not acceptable.
+58. This takes us to the next argument of learned counsel for the appellants. Learned Counsel urged that why the prosecution did not examine any independent witness from the village other then Guddi (PW-9).
+59. We find no merit in this submission for more than one reason. First, no such argument was advanced before the two courts below. Second, the incident had taken place during midnight when all the villagers were fast asleep. Third, no evidence was adduced to prove that near the place of incident, there were many houses and lastly, had the injury been caused by the Gun Shot, it would have created some noise in the nearby locality and attract the attention of the villagers. Such was, however, not the case because the weapon used in commission of the offence was 'Gandasa'.
+60. In our considered opinion, the disclosure statements made by the accused during their interrogation on the basis of which the recoveries of articles were made such as - gandasa, bones, ashes, blood stained bricks and earth, tractor with cart, two plastic cans smelling diesel oil, which were duly proved by the Investigating Officer are sufficient to sustain the conviction when it is examined in the context of oral evidence. Merely because no expert opinion was obtained to prove as to whether bones recovered were human or animal bones, in our view, would not weaken the case of prosecution in the light of overwhelming evidence available on record to prove the complicity of the appellants.
+61. It is the consistent view of this Court that minor discrepancies, even if noticed, would not affect the prosecution case, if there is a sufficient independent evidence to sustain the conviction. (Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191 2010 Indlaw SC 551). In this case, the evidence adduced was found sufficient to sustain the conviction and we find no good ground to take a different view from the one taken by the two Courts below and concur with their findings and views by giving our own reasons mentioned supra.
+62. In view of foregoing discussion, the appeals are found to be devoid of any merit. The appeals thus fail and are accordingly dismissed. In case if any of the appellants is on bail, his bail bond stands cancelled and he is directed to be taken into custody forthwith to undergo remaining period of sentence awarded to him by the Sessions Court.
+Appeals dismissed

Object_casedocs/C1039.txt

@@ -0,0 +1,47 @@
+Manjunath Chennabasapa Madalli v State Of Karnataka
+Supreme Court of India
+
+19 February 2007
+Appeal (crl.) 223 of 2007 (Arising out of SLP (Crl.) No. 4077 of 2006)
+The Judgment was delivered by: Dr. Arijit Pasayat, J.
+Leave granted.
+1.  Challenge in this appeal is to the judgment rendered by a Division Bench of the Karnataka High Court dismissing the appeal filed by the appellant. The appellant was found guilty of offence punishable under Sections 498-A and 302 of the Indian Penal Code, 1860 (in short the 'IPC') by the trial court and was sentenced to undergo R.I. for two years and life respectively. Fine was also imposed with default stipulation.
+2.  The High Court set aside the conviction for the offence punishable under Section 498-A IPC but maintained the conviction u/s. 302 IPC and consequently the sentence.
+The background facts as projected by the prosecution are as follows:
+"Sumithra (hereinafter referred to as the 'deceased'), as the daughter of Siddamma (PW-1) and sister of Hosakerappa (PW-6) as well as grand daughter of Hanumawwa (PW-7). She was married to the accused about one year back to the date of incident. After the marriage, Sumithra went to the house of her husband to lead a happy family life. Though initially they led a happy married life, bickerings started between the accused and his wife as he started abusing and ill-treating her on the pretext that she does not know how to do the house- hold work. However, this was only a pretext to extract additional dowry from the parents of the deceased. As per the customs during Gowri Festival, the deceased was brought to her parental place to celebrate the festival and at that time, the deceased who was pregnant had complained about the ill- treatment meted out to her by her husband.
+As such, the parents, grand-mother and other relatives asked the deceased to stay back in their house. The accused started visiting the house of PWs 1 and 7 and was insisting upon the deceased to come back to his village. On such a visit viz., on 9.3.2001, the accused again came to the house and picked up a quarrel with the deceased and her mother and other relatives and insisted that she should be sent on that day itself. The relatives informed him that as Sumithra was pregnant, after performing certain ceremonies including 'Srimantha', she would be sent back later. The accused stayed in the house of the in-laws that night. On the next day i.e. on 10.3.2001, after taking the night meals, the accused and the deceased slept inside the room whereas, the mother, brother and other relatives slept outside the hall. In the night around 3.00 a.m., they heard cries coming from the room and when they went inside, they saw the accused running away and Sumithra lying unconscious on the ground with bleeding injuries on her head. Immediately, she was shifted to Government Hospital, Gadag and then to KIMS Hospital.
+However, in spite of the medical treatment, she breathed her last on 13.3.2001. In the meantime, on 11.3.2001 itself Head Constable (PW-18) and SHO of Gadag Rural Police station on getting the medico legal intimation that one Sumithra was admitted in the hospital and that she was assaulted by her husband with an iron implement, he went to the hospital and made enquiry and found that Sumithra, the injured was not in a position to give any statement. As such, he recorded the statement of Siddamma (PW-1) who was present in the hospital and treating the same as first information, came back to the Police Station and registered a case in Crime no. 50/2001 for the offences punishable under Sections 498-A, 504 and 307 IPC, registering the FIR. He again went back to the hospital and there, as per the advise of the Doctor, shifted the injured to KIMS Hospital, Hubli. He again deputed and sent requisition for recording of the dying declaration by the authorised Taluka Executive Magistrate, but the same could not be recorded as Sumithra was in coma. As already noted, at KIMS Hospital, Hubli, in spite of the treatment the injured Sumithra breathed her last. After her death, the offence punishable u/s. 307 IPC was altered to S. 302 of IPC and further investigation was continued."
+3.  During the investigation, spot mahazar, inquest proceedings were undertaken. Statement of witnesses, which threw light on the incident, were recorded. The dead body was subjected to autopsy. Search for the accused was carried out and he was apprehended on 14.3.2001. After securing all the necessary reports and on completion of the investigation, charge sheet was filed against the accused.
+4.  On committal and on the basis of the charge sheet materials, the accused was charged for the offences punishable under Sections 498-A and 302 IPC. As the accused denied the charges and claimed to be tried, he was tried under S.C.No.37/2001.
+5.  The trial Court found the evidence to be credible and notwithstanding the fact that the vital witness i.e. the mother of the deceased (PW-1) had resiled from the statement given during investigation, held that the residual evidence was sufficient to hold the accused guilty. Accused was accordingly convicted and sentenced as aforenoted. It was held that the circumstantial evidence pressed into service was sufficient to establish the accusations. The High Court in essence affirmed the conclusions, but altered the conviction.
+6.  In support of the appeal, learned counsel for the appellant submitted that there was practically no evidence whatsoever and even the so-called circumstances highlighted by the trial Court and the High Court do not lead to a conclusion that the accused was guilty of the offence as alleged.
+7.  Learned counsel for the State on the other hand supported the judgments of the courts below.
+8.  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).
+9. 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.
+10.  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:
+"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....".
+11.  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:
+"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
+(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
+(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
+(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."
+12.  In 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.
+13.  Sir 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:
+(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
+(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
+(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
+(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,
+(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
+14.  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.
+15.  In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 1952 Indlaw SC 89), wherein it was observed thus:
+"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."
+16.  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:
+(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;
+(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;
+(3) the circumstances should be of a conclusive nature and tendency;
+(4) they should exclude every possible hypothesis except the one to be proved; and
+(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.
+17.  These aspects were highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180 2003 Indlaw SC 630) and State of Haryana v. Jagbir Singh (2003 (11) SCC 261 2003 Indlaw SC 807).
+18.  In the instant case, the only circumstance which was highlighted by the trial Court and the High Court was that there was unnatural death and additionally the so called dying declaration purported to have been recorded by the then Tehsildar (PW-16). The mere fact that the deceased had died an unnatural death cannot by itself be a circumstance against the accused particularly when Section 498-A has been held to be inapplicable. Additionally, the conclusion that there was dying declaration is also not factually correct. The trial Court itself has referred to the evidence of PW-16 who categorically stated that though he was requested to record the dying declaration the same could not be recorded as the doctor was of the opinion that the deceased was not in a fit condition to give her statement. Thereafter, no statement was recorded. In fact he was called to attend the inquest.
+19.  Above being the position the conviction as recorded by the trial Court and upheld by the High Court is indefensible and is set aside. The appeal is allowed.
+Appeal allowed.

Object_casedocs/C104.txt

@@ -0,0 +1,54 @@
+State of Haryana v Jagbir Singh and Another
+Supreme Court of India
+
+26 September 2003
+Appeal (Cr.) 1721 of 1996 with Cr.A. Nos. 1237-1238/2003 (Arising out of S.L.P. (Cr.) Nos. 1076-1077/1996)
+The Judgment was delivered by : Arijit Pasayat, J.
+Leave granted in SLP (Crl.) Nos. 1076-1077/1996.
+1.  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.
+2.  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:
+(1) The ransom notes were in the handwriting of the accused- Jagbir Singh;
+(2) There was extra-judicial confession before PW-10 and;
+(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).
+3.  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.
+4.  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.
+5.  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.
+6.  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.
+7.  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.
+8.  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:
+"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....".
+9.  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:
+"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
+(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
+(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
+(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.
+In 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.
+Sir 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:
+(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
+(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
+(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
+(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,
+(5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
+10.  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.
+11.  In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 1952 Indlaw SC 89), wherein it was observed thus:
+"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."
+12.  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:
+(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;
+(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;
+(3) the circumstances should be of a conclusive nature and tendency;
+(4) they should exclude every possible hypothesis except the one to be proved; and
+(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.
+13.  These aspects were recently highlighted in State of Rajasthan v. Rajaram (2003 AIR SCW 40972003 Indlaw SC 630)
+14.  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:
+"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.
+The 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.
+This section also applies, with any necessary modifications, to finger-impressions".
+15.  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.
+16.  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.
+17.  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.
+18.  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.
+19.  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.
+20.  Looked from any angle the judgment of the High Court does not suffer from any infirmity which warrants interference.
+21.  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.
+The appeals are without merit and deserve dismissal, which we direct.
+Appeals dismissed

Object_casedocs/C1040.txt

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+Santhanam v State of Tamil Nadu
+Supreme Court of India
+
+24 April 2009
+Criminal Appeal No. 826 of 2009 (Arising out of S.L.P. (Crl.) No. 7458 of 2008)
+The Judgment was delivered by : Dr. Arijit Pasayat, J.
+1. Leave granted.
+2. Challenge in this appeal is to the judgment of the Division Bench of the Madras High Court, Madurai Bench, upholding the conviction of the appellant for offence punishable under Sections 302 of the Indian Penal Code, 1860 (in short the 'IPC'). The co-accused was tried for offence punishable for offence punishable under Section 302 read with Section 114 and 506(2) IPC and was found not guilty and was acquitted of the charges.
+3. Prosecution version, in a nutshell, is as follows:
+The incident in question took place at around 2 p.m. on 9.12.2001, P.W.1 and her husband were working in the Postal Department and they are the owners of land in their native place, Kanjeerimalaipudur Kattukottagai. Thiruppathy (hereinafter referred to as the 'deceased') was employed with them as a farm servant. The land of the accused-appellant is situated adjacent to the land of P.W. 1. They had a dispute regarding water pipe line.
+Two days before the date of incident i.e. 9.12.2001 when the deceased was irrigating, the appellant closed the water pipe line. The deceased asked him why he had closed the water pipe line, the appellant abused him and assaulted him with a stick. The deceased filed a complaint in the Uppiliyapuram Police Station. When P.W. 1 and her husband came to know about the same on 11.12.2001, they wanted to convene a Panchayat and, therefore, P.W.1, her husband and others gathered in front of the house of P.W. 1 at about 2.00 p.m. At that time, the appellant and the second accused came in a TVS 50 vehicle and both of them pulled the deceased Thiruppathy and assaulted him with hands. They intervened and prevented them from attacking the deceased. When the deceased, Thiruppathy went to the house of Dhandapani, the appellant and the second accused followed the deceased.
+The appellant attacked the deceased, Thiruppathy with a wooden log on his right shoulder, right forearm and on his head and the deceased fell down and fainted. The second accused took out billhook out of his shirt and threatened the witnesses with dire consequences. Then the second accused gave billhook to the appellant and both of them ran away from the place of occurrence. Immediately thereafter, P.W. 1 and her husband, Ramalingam went to Uppiliyapuram Police Station and gave a complaint and on the basis of which F.I.R. was lodged and a case was registered as Crime No. 658/2001 under Section 302 I.P.C. and investigation started. P.W.12, conducted the Post-Mortem on 12.12.2001 and opined that the deceased appeared to have died of shock and haemorrhage due to injuries sustained on head.
+Investigation was undertaken and on completion thereof the chargesheet was filed.
+The case was committed to the Court of Sessions. Charges were framed. Since the accused persons pleaded innocence, trial was held.
+In order to establish accusations, 14 witnesses were examined. In order to prove its plea of innocence, three witnesses were examined. The Trial Court found that accusations were not established against the second accused and he was acquitted. Before the High Court the primary stand was that the so called eye witnesses could not have seen the occurrence as claimed.
+This according to PW.4 she actually did not see the occurrence and also not did not see the accused persons assaulting but she came and found that the deceased was lying severely injured. It was also submitted that the medical evidence was at variance with the so called ocular evidence.
+Large number of criminal and civil cases were pending between the parties and the present case was the outcome of enmity. In any event, the occurrence took place in course of altercation and Section 302 IPC has no application. The deceased was working under PW1 and her husband. On the earlier occasion when the deceased went over to the field and questioned the conduct of the accused, altercation took place and complaint was given against him. Panchayat was convened.
+It was also submitted that the injuries were on non-vital parts and, therefore, it cannot be said that the accused had intention to cause death. The High Court did not accept the stand that the occurrence took place in the course of altercation and other pleas.
+4. The stand taken before the High Court was reiterated in the present appeal. Learned counsel for the respondent-State supported the judgment.
+5. The basic question is whether Section 302 IPC has application.
+6. 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 gravest 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.
+7. 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.
+8. 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 killing within the ambit of this clause.
+This aspect of clause (2) is borne out by illustration (b) appended to Section 300.
+9. 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" means that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
+10. 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.
+11. 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.
+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 is 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.
+12. 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".
+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."
+13. The learned Judge explained the third ingredient in the following words :
+"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."
+14. 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.
+15. 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 Section 300 clearly brings out this point.
+16. 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.
+17. 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.
+18. 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), Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh (JT 2002 (6) SC 274 2002 Indlaw SC 1777), and Augustine Saldanha v. State of Karnataka (2003 (10) SCC 472 2003 Indlaw SC 674) and Thangaiya v. State of Tamil Nadu (2005 (9) SCC 650 2004 Indlaw SC 1079).
+19. In the peculiar facts of the case, the proper conviction would be under Section 304 Part I. Custodial sentence of 10 years would meet the ends of justice.
+20. The appeal is allowed to the aforesaid extent.
+Appeal allowed

Object_casedocs/C1041.txt

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+State of Tamil Nadu v Damodaran
+Supreme Court of India
+
+29 November 1991
+Cr.A. No. 492 of 1990
+The Order of the Court was as follows:
+1.  Damodaran, the respondent before us, was convicted by the Special Judge under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161, IPC. He was sentenced to undergo rigorous imprisonment for one year and a fine of Rs 100. On appeal, the High Court did not find fault with the appreciation of evidence by the trial court and agreed with the reasoning and conclusions reached by the Special Judge. The High Court, however, entertained and additional plea regarding the validity of the sanction granted by the appointing authority to prosecute the respondent and came to the conclusion that there was no application of mind by the said authority and on that ground acquitted the respondent. The High Court's reasoning is reproduced as under:
+"In order to satisfy myself with respect to the contention raise by the learned counsel for the appellant, I sent for the records. A perusal of the letter dated April 25, 1979 written by the Director of Vigilance and Anti-Corruption to the Revenue Divisional Officer, Chidambaram, who accorded the sanction to prosecute the appellant shows that the statements under Section 162 of the Code of Criminal Procedure recorded from the witnesses have not been placed before the Authority, who sanctioned prosecution. In fact, the letter shows that the Director of Vigilance and Anti-Corruption has enclosed model sanction orders so as to enable the Revenue Divisional Officer to draft sanction order on those line. On a perusal of the records placed before me, I am satisfied that the authority who sanctioned the prosecution has not accorded sanction applying his mind but has granted the order mechanically without going through the material records gathered by the prosecution."
+2.  The only point raised by the learned counsel for the State of Tamil Nadu is that the High Court has misread the letter dated April 25, 1979. The learned counsel has produced before us the original records. We have examined the records and gone through the letter date April 25, 1979. The letter runs into 21 pages. It has been divided into various parts. Part IV of the letter contains the genesis of the enquiry and the proceedings of the trap. Part V brings out the allegations in a precise form.
+3. Thereafter, Part VI contains the oral and the documentary evidence relied upon by the prosecution. The statements recorded under Section 162 Criminal Procedure Code of Mathiyalagan, Thirugnasasambandam, Ramaiah, Ramchandra Padyachi and G. Ramyanajulu have been reproduced in detail. All these persons appeared as prosecution witnesses at the trial. The letter also details the documentary evidence relied upon the prosecution. The first information report in original has been annexed.
+4.  We are of the view that the High Court was not justified in reaching the conclusion that the sanctioning authority granted sanction mechanically and without application of mind. The statements of witnesses recorded under Section 162 Criminal Procedure Code were reproduced in detail in the letter dated April 25, 1979.
+5. We are satisfied that all the relevant material was before the sanctioning authority and he granted sanction after fully applying his mind. We see no infirmity in the order granting the sanction. We, therefore, allow the appeal, set aside the judgment of acquittal rendered by the High Court and restore that of the trial court. We convict respondent-Damodaran under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 of the Indian Penal Code. He is sentenced to undergo one years' rigorous imprisonment and also to pay a fine of Rs.100 (Rupees one hundred). In default of payment of fine he shall undergo further imprisonment for one month.
+Appeal allowed.

Object_casedocs/C1042.txt

@@ -0,0 +1,42 @@
+Naresh Kumar Goyal v Union of India and Others
+Supreme Court of India
+
+5 October 2005
+Appeal (Crl.) 1302 of 2005 (Arising out of SLP (Crl.) No. 4928 of 2003)
+The Judgment was delivered by : B. P. Singh, J.
+1.  Special leave granted.
+2.  In this appeal the appellant impugns the order of detention passed against him by the State of Bihar on September 4, 2002 in exercise of powers conferred by Section 3(i), (ii) and (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the Act'). The High Court by its impugned judgment and order dated September 17, 2003 dismissed the writ petition and held that this was not an appropriate case in which the High Court could exercise its jurisdiction under Article 226 of the Constitution of India to quash an order of detention even before its execution. The correctness of the aforesaid view of the High Court is challenged before us.
+The facts of the case are few and not disputed.
+3.  The appellant claims to be one of the partners of M/s. Prakash Transport, a partnership firm having its principal place of business at Kolkatta with branch offices all over India including one at Raxaul in the State of Bihar. The firm is engaged in the business of transportation of goods by road by hiring public carrier trucks. According to the appellant, on August 28, 2001 a Nepalese firm M/s. Prakash International Carriers Pvt. Ltd., Kathmandu, Nepal, hired a vehicle owned by one Shri Vishwanath Prasad Kanu, a Nepalese citizen, for transportation of goods from the godown of the appellant's firm at Raxaul to Nepal. The appellant has no concern with the Nepalese firm M/s. Prakash International Carriers Pvt. Ltd. The truck hired by the aforesaid Nepalese firm was detained at the Indian Land Custom Station at Raxaul and an idol kept in a wooden box was recovered. This led to the search of the premises of the appellant's firm at Raxaul and the search resulted in the recovery of another idol kept in a wooden box.
+4.  The statement of the driver of the truck was recorded on August 29, 2001 and on the basis of his statement the complicity of the appellant was discovered. Accordingly his house at Kolkatta was searched on September 11, 2001 and his statement recorded. On February 22, 2002 a notice was issued to the appellant to show cause as to why penalty be not imposed, and a criminal case was also registered against him on April 16, 2002. Subsequently the appellant was released on bail in the criminal case on August 16, 2002. The impugned order of detention was passed on September 4, 2001, but till the appellant filed the writ petition on June 25, 2003, the order of detention had not been executed by serving it upon the appellant.
+5.  The case of the appellant is that in the criminal case, he appeared in person uptil December 20, 2002, even after the order of detention had been passed, and yet no effort was made to arrest him. No process under Section 7 of the Act was issued against him even though it is the case of the respondents that the appellant had been absconding. It is the case of the appellant that the detaining authority, the State of Bihar, took no effective steps whatsoever to arrest the appellant which showed that the order of detention had been passed for a purpose other than for which his detention under the Act could be justified.
+6.  The fact that the State Government did not exercise its power under Section 7 of the Act is not disputed before us. All that has been shown to us by the learned counsel appearing on behalf of the State is that some correspondence was exchanged between the Criminal Investigation Department of the Government of Bihar with the Commissioner of Police, Kolkatta, West Bengal.
+7.  It was stated in the counter-affidavit filed on behalf of respondent No.5 before the High Court that though a request had been made for immediate compliance of the preventive detention order under the Act to the Commissioner of Police, Kolkatta, no action was taken. Several such letters addressed to the police authorities of the State of West Bengal, however, yielded no result.
+8. Having regard to the facts and circumstances of the case it appears to us prima facie, that there has been delay in the execution of the detention order and the State of Bihar has not taken effective steps to arrest the appellant and serve the order of detention upon him. This, however, should not be considered to be our concluded opinion in the matter, since it is always open to the detenue to challenge the order of detention after arrest, and the question of delay in issuance or implementation of the order can be raised in such proceeding.
+9.  The real issue which arises in the instant appeal is whether the High Court was justified in law in not exercising its discretion under Article 226 of the Constitution of India to quash the order of detention at the pre-arrest stage.
+10. Learned counsel for the appellant submitted that once it is shown that the State has taken no steps to execute an order of detention and the explanation furnished by the State is unsatisfactory, it must be held that the order of detention was not issued for the purpose for which it could be issued under the Act, and necessarily implied that the real purpose was something else, not authorized by law. In such a case it made no difference whether the appellant moved the High Court at the pre-arrest stage or after his arrest pursuant to the order of detention.
+11.  He emphasized that expeditious steps must be taken by the State both in the matter of passing the order of detention and in executing the same. Both are lacking in the instant case. The order of detention was passed on September 4, 2002 while the complicity of the appellant is alleged to have been discovered on August 29, 2001 on the basis of the statement of the driver of the vehicle. In the matter of implementation of the order as well, there was considerable apathy and lethargy, since the order was not even executed till the date the writ petition was filed on June 25, 2003.
+12.  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.
+13.  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. It, 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.
+14.  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 vs. Union of India and others : (1992) 1 SCC 434 1991 Indlaw SC 438 ; Ashok Kumar vs. Delhi Administration : (1982) 2 SCC 403 1982 Indlaw SC 31 and Bhawarlal Ganeshmalji vs. State of Tamilnadu : (1979) 1 SCC 465 1978 Indlaw SC 203.
+15.  It is not necessary for us to multiply authorities because no exception can be taken to the above proposition enunciated by this Court in a series of decisions.
+16.  Mr. B.B. Singh, learned counsel appearing on behalf of the State of Bihar, submitted before us that the question involved in the instant appeal is not whether the order of detention should be struck down on the ground that the State of Bihar has not taken necessary steps to implement the order of detention, but whether at the pre-arrest stage the High Court should have exercised its jurisdiction under Article 226 of the Constitution of India to quash the order of detention on such grounds. He submitted that the decisions of this Court have taken the view that exercise of discretion under Article 226 of the Constitution of India can be justified only in appropriate cases and the scope for interference is very limited. Normally the Court would not interfere with the order of detention at a pre-arrest stage under Article 226 of the Constitution of India. He submitted that there are only 5 exceptions to this rule which would justify interference by the Court at the pre-execution stage with the order of detention.
+17.  Those five situations have been enumerated in the case of Additional Secretary to the Government of India and others Vs. Smt. Alka Subhash Gadia and another : 1992 Supp (1) SCC 496 1990 Indlaw SC 636;
+"As regards his last contention, viz., that to deny a right to the proposed detenue to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences.
+However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts.
+To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well- tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenue is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. 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 detenue, but prevents their abuse and the perversion of the law in question".
+18.  In Union of India and others vs. Parasmal Rampuria : (1998) 8 SCC 402 1998 Indlaw SC 642, when the order of detention passed under the Act was sought to be challenged at the pre-arrest stage, this Court called upon the respondent first to surrender pursuant to the detention order and then to have all his grounds examined on merit.
+19.  In Sayed Taher Bawamiya Vs. Joint Secretary to the Government of India and Others : (2000) 8 SCC 630 2000 Indlaw SC 2842, an argument was advanced before this Court that the exceptions enumerated in Alka Subhash Gadia 1990 Indlaw SC 636 (supra) were not exhaustive. The submission was repelled and this Court observed :-
+"As we see it, the present case does not fall under any of the aforesaid five exceptions for the court to interfere. It was contended that these exceptions are not exhaustive. We are unable to agree with this submission. Alka Subhash Gadia  case shows that it is only in these five types of instances that the court may exercise its discretionary jurisdiction under Article 226 or Article 32 at the pre-execution stage"
+20.  In the challenge was to the order of the High Court quashing the order of detention at the pre-arrest stage on two grounds, first that there had been delay in making the order of detention and second that after making the order of detention no effective steps had been taken to execute the same except to make a vague allegation that the respondent was absconding.
+21.  This Court noticed the exceptional circumstances justifying interference by the High Court at pre-arrest stage enumerated in Alka Subhash Gadia 1990 Indlaw SC 636 (supra). This Court, thereafter, set aside the order made by the High Court observing :-
+"This Court has been categorical that in matters of pre-detention cases interference of court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Addl. Secy. to the Govt. of India Vs. Alka Subhash Gadia and Sayed Taher Bawamiya Vs. Jt. Secy1990 Indlaw SC 636 . to the Govt. of India, we hold that the order made by the High Court is bad in law and deserves to be set aside".
+22. 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.
+23.  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. We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia 1990 Indlaw SC 636 (supra).
+24. 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.
+Appeal dismissed